author: JUSTICE JIGANTI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TOMMY LEE JACKSON, Defendant-Appellant.
    First District (4th Division)
    No. 1—85—3553
    Opinion filed May 10, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Vicki Rogers and Robert P. Isaacson, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and Lynda A. Peters, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JIGANTI

delivered the opinion of the court:

Following a jury trial the defendant, Tommy Lee Jackson, was convicted of murder and rape. He was sentenced to a term of natural life imprisonment for murder and a consecutive extended term of 60 years for rape. On appeal, the defendant contends that his confession should have been suppressed because it was obtained in violation of his fifth amendment right to counsel and that the trial court erred in allowing the jury to hear evidence that he failed a polygraph examination. The defendant further contends that he was denied a fair trial by the State’s violation of the discovery rules, the introduction of hearsay testimony concerning other crimes and the prosecutor’s references to prejudicial factors concerning the victim’s life. The defendant also maintains that the trial court erred in prohibiting him from cross-examining a State witness on the witness’ expectation of leniency, allowing testimony of the defendant’s post-arrest silence, admitting improper rebuttal testimony and considering victim-impact testimony at the sentencing hearing.

On August 10, 1982, police discovered the body of Mary Beth Duncavage in her apartment at 714 West Buckingham Street in Chicago. Her body was lying facedown in the bedroom with her legs tied to a radiator. There was evidence of sexual assault, and it was determined that the cause of death was strangulation. Duncavage’s body was badly decomposed, leading the police to believe that she had been killed on August 4, 1982. On that date, a man identifying himself as Michael West telephoned 911 and reported that he heard a woman screaming in a first-floor apartment at 714 West Buckingham. He further stated that he heard someone running around the first floor on the left side and described the possible offender as a white male with long, slicked-back black hair wearing blue jeans, a blue jean jacket and boots. Two officers responded to the call at approximately 4 a.m. They remained in the building for 15 minutes but left when they did not hear or see anything to substantiate the call.

The following evidence was presented at a hearing on the defendant’s motion to suppress. In late August of 1983, the defendant was arrested on charges of home invasion and rape unrelated to the instant cause. After being advised of his Miranda rights, he confessed to those charges. On September 2, 1983, the defendant was arraigned and an assistant public defender was appointed to represent him.

On September 6, 1983, Detectives John Thomas, Bernard Richter and Gerald Mahon obtained a writ to have the defendant transferred to the Area 6 police station for questioning. A day earlier, they had received information from two acquaintances of the defendant, Sean Sullivan and Reginald Perry, that led them to suspect the defendant’s involvement in the Duncavage murder. Sullivan and Perry were in police custody for offenses unrelated to the Duncavage homicide. Perry told police that in August of 1983, the defendant told Sullivan and Perry that he had raped and killed two women on the north side of Chicago. In one instance, he choked the woman and placed her in a bathtub filled with water; in the other instance he strangled the woman and tied her to a bed, dresser or radiator in her bedroom. When played the 911 tape, Perry identified the voice as that of the defendant.

The defendant arrived at the police station for questioning on September 7, 1983. According to the police officers, he was advised of his constitutional rights on several occasions, prior to each conversation with the police. The defendant indicated that he understood his rights and would like to answer questions. The police did not contact the attorney appointed for the defendant on the unrelated rape charge. The officers testified that the defendant was never threatened, beaten or coerced in any manner and that he was given food and allowed to use the washroom. At approximately 6:30 p.m., the defendant was taken to another police station for a polygraph examination. The examination covered homicide investigations involving Mary Beth Duncavage, Faustina Gray and Marilyn Dods. On the return trip to Area 6, the defendant asked how he did on the test. The detective merely replied, “You know how you did.”

At 10 p.m. the defendant was again given the Miranda warnings. He did not request an attorney. At that time, the defendant was confronted with the statements of Sean Sullivan and Reginald Perry and was informed that he had failed the polygraph examination. The defendant was left alone until 11 p.m., when he was once again advised of his constitutional rights. The defendant stated that he wanted to tell the truth and admitted to killing Mary Beth Duncavage and Faustina Gray.

Assistant State’s Attorney Richard Beuke arrived at 12 a.m. on September 8, 1983, gave the defendant the Miranda warnings, showed him some photographs and played the first half of the 911 tape. The defendant identified the voice as his own and was able to accurately state what was on the second half of the tape before it was played for him. The defendant slept for a while, then ate some food that was brought for him. Between 4:35 a.m. and 4:45 a.m., the defendant gave a court-reported statement concerning the death of Mary Beth Duncavage. At 6:20 a.m., he gave a court-reported statement concerning the death of Faustina Gray. The defendant was then questioned about two other murders which he denied committing.

Sue Coleman, the assistant public defender appointed to represent the defendant on September 2, 1983, on the unrelated rape charge, testified at the suppression hearing that she was never contacted by the police or by the State’s Attorney’s office regarding the questioning of the defendant concerning the Duncavage or Gray homicides. The trial court denied the motion to suppress, finding that the defendant’s confession was voluntary and that no violation of his constitutional rights had occurred.

During opening arguments, the State made several references to the life, interests and career of Mary Beth Duncavage, including the fact that she was a medical student with an interest in dance. Objections to these comments were sustained. At trial, the State first presented the testimony of Dr. Paul Canale, who had attended medical school with Duncavage. Canale stated that on August 1, 1982, he helped Duncavage move into her apartment on Buckingham Street. At that time, he saw three black men walk by, then walk back toward them. As Duncavage came down the steps, one of the men said something like, “[H]ey, Mabel,” under his breath. Canale identified the defendant in court as the man who made the comment. Canale then stated that he informed the police about the three black men shortly after Duncavage’s death. He viewed police photographs but was unable to make an identification. On September 9, 1983, he saw the defendant’s picture in the newspaper in connection with the Duncavage case, recognized him and contacted the police. The defendant objected and moved for a mistrial based on Canale’s testimony on the grounds that the State violated the discovery rules by not tendering his statement to the defense. The motion was denied.

Reginald Perry testified that the defendant was present during the last week of August 1983 when Perry and Sean Sullivan argued over how much force was used in a purse snatching committed by Perry and Sullivan. Sullivan had thrown the woman down and kicked her in the head. The defendant said that Sullivan was right in what he did and that they should never be afraid to “kill a bitch.” The defendant told them that he had sexually assaulted a woman in an apartment near Broadway and Clark, then choked her, placed her in a bathtub filled with water and hit her head on the tub. He also told them how he broke into another woman’s apartment, sexually assaulted her, strangled her and tied her body to a dresser, bed or radiator. He said that he took a radio, money and jewelry from the apartment. Prior to Perry’s testimony, the defense made a motion to bar the testimony based on a defense investigation which revealed the possibility that Perry had been promised leniency with regard to a pending murder case in which he was a suspect in exchange for his testimony. The State repeatedly denied any promises of leniency, and the court denied the motion. Following a voir dire examination of Perry, the court prohibited the defense from cross-examining Perry about the murder investigation. Further details concerning this issue will be related later in the opinion.

The State then presented evidence of the defendant’s confession to the Duncavage murder. Detective Gerald Mahon testified that at approximately 10 p.m. on September 7, 1983, he and Detective Richter advised the defendant of his Miranda rights, after which the defendant indicated that he would talk to them. Mahon then told him they believed he was involved in several murders on the north side, to which the defendant made no reply. The defendant objected to this testimony as evidence of the defendant’s post-arrest silence. Mahon then testified, over a defense objection, about four murder cases concerning which the defendant was questioned. The detectives told the defendant that two friends of his stated that the defendant told them he “had killed white women and put them in bathtubs. Further, that [he] had raped women and tied them up.” He also told the defendant that his voice had been identified on the 911 tape. At 11 p.m., the defendant told Mahon and Richter that one night during the summer of 1982 he climbed into an open window in an apartment building, took a knife from the kitchen and encountered a woman. He tied her feet to a radiator, raped her and removed some items from the apartment. When he returned to the apartment, he saw that the woman was not moving and became scared. He called the police using the name Michael West and told them a phony story.

At 2 a.m., the defendant gave a similar statement to Assistant State’s Attorney Beuke. The defendant further stated that he placed a belt around the woman’s neck and a pillow over her head to keep her from screaming. In a court-reported statement made at 4:35 a.m., the defendant explained that he used the name Michael West because it was the name of someone he knew from the Maryville Academy, where he once lived. He said that he sold the victim’s property to peopie on the street and at the beach.

The defense began its case by presenting evidence concerning the Faustina Gray murder, to which the defendant confessed shortly after confessing to the Duncavage murder. Officer James Goff testified that at 1 p.m. on May 26, 1982, he responded to a report of a fire at 4027 North Paulina. He found the body of an Hispanic woman submerged in a bathtub full of water, with the hands tied behind the back.

Assistant State’s Attorney Beuke testified that in the defendant’s confession to the Gray murder, he said that he went to the rear of the home, kicked a hole in the basement door and went inside. He found a woman on the second floor and hit her in the head with a trophy when she screamed. He tied her up, raped her and put her in the bathtub. When she began to regain consciousness, he hit her head against the tub and left her facedown in the tub. He then ran downstairs and started a fire.

The defendant then called Chief Warrant Officer Gerald Gabriel of the United States Navy. During 1982, Gabriel worked in the brig at the Great Lakes Naval Station. He identified a disciplinary action data card which showed that the defendant was a fireman recruit from San Diego, California, who had been sentenced to the brig from April 9, 1982, until May 28, 1982. The confinement order showed that he arrived at the Great Lakes Naval Station brig on April 22, 1982.

Gabriel testified that an inspection record revealed that the defendant was in segregation from May 19, 1982, until May 28, 1982. Inspections were made every 15 to 30 minutes, and the inspection records contained signatures from guards who observed the defendant in his cell at 1 p.m. on May 26, 1982, the time when Faustina Gray was killed. On cross-examination, Gabriel admitted that although the hospital records indicated that the defendant was out of his cell for medical treatment on May 21, 1982, the inspection records showed that he was observed in his cell all day. The State then questioned Gabriel about military records of an individual named David Allen West and about the Navy annual inspector general’s report on the brig for April 1982 to April 1983. The defense objected because West had not been listed as a witness and the report had not been tendered to the defense. The objections were overruled. Gabriel then testified that the brig had failed an inspection in the areas of security and record keeping.

The defendant testified that he lived at Maryville Academy from 1975 until 1980 and that there was no one named Michael West at the school. He was in the brig at Great Lakes on the date of the Gray homicide and was released two days later. During the summer of 1982, he lived in the Elk Grove Village area until late August, when he moved to the north side of Chicago.

The defendant stated that on September 7, 1983, he was taken to the Area 6 police station, shown photographs of dead women and questioned about the murders. He was repeatedly beaten by the officers, threatened and told to confess. His requests for an attorney and to make a phone call were denied. He was then told that Perry and Sullivan said he committed the murders. When the defendant finally agreed to confess, he was shown photographs, played a tape and told what to say in each case. He rehearsed two murder confessions, then gave court-reported statements. The defendant testified that he did not escape from the brig on May 26, 1982, and that he did not rape and murder Mary Beth Duncavage or Faustina Gray. He confessed only because he felt mentally manipulated, coerced and threatened and because he was confronted with people who said he had committed the murders.

On cross-examination, the defendant admitted being AWOL three times while in the Navy. He denied selling a radio to Demetrio Hernandez on August 10, 1982. Over a defense objection, the State then asked the defendant whether, shortly before he confessed, he was told that he had failed a polygraph examination. The defendant replied that he was told that he failed to answer some of the questions truthfully.

The Reverend John Smyth, executive director of Maryville Academy, testified that the defendant was a student there from 1975 until 1980. It was his opinion that the voice on the 911 tape was not that of the defendant. Also, there was never a student at Maryville named Michael West. D. LeBel and Linda Vancil, acquaintances of the defendant, also testified that the voice on the tape was not the defendant’s voice.

Police officer Chris Grogman testified that he spoke with Paul Canale during his investigation of the Duncavage case and that his report did not indicate that Canale told him about three black men who walked by the building on August 1,1982.

Lieutenant Commander James Majority testified that he had been the commanding officer of the Great Lakes Naval Brig since July of 1983. He testified that although the brig had failed an inspection in 1982, it had received outstanding ratings in certain sections. When he took command, there were no problems of escapes from maximum security or falsification of records.

The State presented several rebuttal witnesses. Demetrio Hernandez testified that sometime after he heard about the Duncavage murder, the defendant sold him a radio for $30. He saw the defendant several times on the north side of Chicago in mid-August of 1982. David Allen West testified that he was stationed at the Great Lakes Naval Station from 1980 to 1983 and left the base seven or eight times without permission. In May of 1982 he was in the brig in the medium security unit. During that time he and another prisoner were left outside the brig unattended for one hour. He had never been in the maximum security unit.

Detective Richter, Detective Mahon and Assistant State’s Attorney Beuke again testified concerning their treatment of the defendant on the day he confessed. In addition, Richter testified that on the way back from the polygraph examination, the defendant asked how he did and was told they would discuss it later. Shortly before the defendant confessed, he was told that he had failed the examination. Mahon corroborated this testimony. The jury was subsequently instructed that evidence concerning the polygraph was not to be considered as evidence of the defendant’s guilt but was to be used solely to evaluate the issue of whether his confession was the result of coercion or the product of a free will. At the exhibits conference, the defendant objected to a photograph of Mary Beth Duncavage wearing a dancer’s outfit. The objection was overruled, and the photograph was allowed to go to the jury.

The facts concerning the sentencing hearing, which included victim-impact testimony by Mary Beth Duncavage’s mother, will be set forth later in connection with our discussion of that issue.

The first issue before us is whether the defendant validly waived his fifth amendment right to have counsel present during custodial questioning concerning the Duncavage murder. Prior to questioning in this matter, the defendant was arrested on an unrelated charge and informed of his constitutional rights. At that time, the defendant confessed to the unrelated charge. The defendant was then arraigned on that charge and accepted the appointment of counsel. Sometime after the arraignment, the police attempted to question the defendant about the instant offense. The defendant was informed of his Miranda rights, after which he made the statements he now seeks to suppress. The defendant concedes that at the time he was questioned about the Duncavage murder, his sixth amendment right to counsel had not yet attached on that charge. However, he maintains that his acceptance of counsel at arraignment on the unrelated charge also constituted an invocation of his fifth amendment right to counsel on the instant charge which could not be waived by responding to further police-initiated questioning. A brief discussion of the sources and application of the fifth and sixth amendment rights to counsel is helpful in resolving this issue.

The fifth amendment guarantees that “[n]o person *** shall be compelled in any criminal case to be a witness against himself.” (U.S. Const., amend. V.) To ensure the integrity of this constitutional protection, the United States Supreme Court in Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, held that because of the inherently coercive nature of custodial interrogation, there is a right to have counsel present during custodial interrogation. To demonstrate a waiver of the fifth amendment right to counsel, the State must show that the individual understood his right to have counsel present and that he knowingly, voluntarily and intelligently decided to abandon it. (Solem v. Stumes (1984), 465 U.S. 638, 79 L. Ed. 2d 579, 104 S. Ct. 1338.) In Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880, in order to lend substance to the right to counsel as stated in Miranda, the Court held that once an individual invokes his right to have counsel present during custodial interrogation, all questioning must cease until counsel is made available. To demonstrate a waiver after the right to counsel has been invoked, the State must establish that the accused himself initiated the further communication with police. As stated in Edwards, “an accused, *** having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” (Edwards, 451 U.S. at 484-85, 68 L. Ed. 2d at 386, 101 S. Ct. at 1885.) In Arizona v. Roberson (1988), 486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093, the Court held that the bright-line rule stated in Edwards applies in the context of questioning in a separate investigation. The Roberson Court explained that “the presumption raised by a suspect’s request for counsel — that he considers himself unable to deal with the pressures of custodial interrogation without legal assistance — does not disappear simply because the police have approached the suspect, still in custody, still without counsel, about a separate investigation.” Roberson, 486 U.S. at 683, 100 L. Ed. 2d at 715, 108 S. Ct. at 2099.

The sixth amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to *** have the Assistance of Counsel for his defence.” (U.S. Const., amend. VI.) The sixth amendment right to counsel attaches at the time that judicial proceedings have been initiated against the accused, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. (Brewer v. Williams (1977), 430 U.S. 387, 398, 51 L. Ed. 2d 424, 436, 97 S. Ct. 1232, 1239.) It is at that time that the government has committed itself to prosecute, and the accused finds himself “faced with the prosecutorial forces of organized society.” (Maine v. Moulton (1985), 474 U.S. 159, 170, 88 L. Ed. 2d 481, 492, 106 S. Ct. 477, 484.) The sixth amendment right to counsel extends to every critical stage of the prosecution, including post-indictment interrogation. (Brewer, 430 U.S. 387, 51 L. Ed. 2d 424, 97 S. Ct. 1232.) Unlike the fifth amendment right to counsel, the sixth amendment right to have counsel present during critical stages of the prosecution does not depend on whether or not the accused is in custody. (United States v. Wade (1967), 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926.) Also unlike the fifth amendment right to counsel, the'sixth amendment right is limited to charges on which judicial proceedings have been initiated; the right has not been extended to provide counsel during questioning on unrelated charges. Kirby v. Illinois (1972), 406 U.S. 682, 32 L. Ed. 2d 411, 92 S. Ct. 1877; cf. United States v. Gouveia (1984), 467 U.S. 180, 81 L. Ed. 2d 146, 104 S. Ct. 2292 (where the Supreme Court declined to carve out an exception to the holding in Kirby).

In Michigan v. Jackson (1986), 475 U.S. 625, 89 L. Ed. 2d 631, 106 S. Ct. 1404, the Court applied the Edwards rule, which was developed to safeguard the fifth amendment right to counsel, in determining whether an accused who requested counsel at an arraignment had waived his right to have counsel present during subsequent interrogation by responding to police questioning after waiving his Miranda rights. The Court held that “if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.” (Jackson, 475 U.S. at 636, 89 L. Ed. 2d at 642, 106 S. Ct. at 1411.) The Court reasoned that because the sixth amendment right to have counsel present at all critical stages of the prosecution, including post-indictment questioning, is as important as the fifth amendment right to have counsel present during custodial interrogation, it is deserving of the same level of protection. However, in Patterson v. Illinois (1988), 487 U.S. 285, 101 L. Ed. 2d 261, 108 S. Ct. 2389, the Court refused to apply the Edwards rule to invalidate a Miranda waiver by an accused who was questioned after having been indicted, but before he had requested counsel at his arraignment. The Court reasoned:

“The fact that petitioner’s Sixth Amendment right came into existence with his indictment, i.e., that he had such a right at the time of his questioning, does not distinguish him from the preindictment interrogatee whose right to counsel is in existence and available for his exercise while he is questioned.” Patterson, 487 U.S. at 290-91, 101 L. Ed. 2d at 271, 108 S. Ct. at 2394.

The defendant in the case at bar, relying upon United States ex rel. Espinoza v. Fairman (7th Cir. 1987), 813 F.2d 117, maintains that when he accepted the appointment of counsel at his arraignment on an unrelated charge, he was invoking not only his sixth amendment right to have counsel present at all critical stages of the prosecution on that charge, but also his fifth amendment right to have counsel present during all custodial interrogation. The significance of this contention is that the sixth amendment right prohibits police-initiated questioning only on offenses with which the defendant has been formally charged, while invocation of the fifth amendment right would prohibit all police-initiated questioning during continuous custodial interrogation, including questioning on unrelated charges. Arizona v. Roberson (1988), 486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093.

In Espinoza, the defendant requested counsel at his arraignment on a weapons charge. Subsequently, while still in custody and after having received the Miranda warnings, he confessed to an unrelated murder. In holding the confession inadmissible, the court stated that under the decision in Michigan v. Jackson (1986), 475 U.S. 625, 89 L. Ed. 2d 631, 106 S. Ct. 1404, “we are required to presume that an individual who requests counsel at his or her arraignment is asserting both a Sixth Amendment and a Fifth Amendment right.” (Espinoza, 813 F.2d at 123.) Because Arizona v. Roberson (1988), 486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093, prohibits all police-initiated questioning of an accused in custody who has invoked his fifth amendment right to counsel, the defendant’s Miranda waiver was therefore invalid. However, in a footnote, the Espinoza court alluded to the idea that the presumption that an individual who requests counsel at his arraignment is invoking both his sixth and fifth amendment rights to counsel may not arise in a case where the accused confesses to a crime prior to his arraignment on that crime. In that situation, there is no basis for presuming that the request for counsel at arraignment indicated an unwillingness or inability to deal with the police except through counsel. Espinoza, 813 F.2d at 123 n.5.

We do not agree with Espinoza’s conclusion that Michigan v. Jackson (1986), 475 U.S. 625, 89 L. Ed. 2d 631, 106 S. Ct. 1404, mandates a presumption that an accused who requests counsel at his arraignment on a particular charge is also invoking his fifth amendment right to have counsel present during custodial interrogation. Jackson merely held that once an accused invokes his right to counsel at arraignment on a particular charge, the police may not initiate further questioning on that charge in the absence of counsel. The court noted that the sixth amendment right to counsel includes the right to have counsel present at post-arraignment interrogation and that “the Sixth Amendment right to counsel at a postarraignment interrogation requires at least as much protection as the Fifth Amendment right to counsel at any custodial interrogation.” (Jackson, 475 U.S. at 632, 89 L. Ed. 2d at 639, 106 S. Ct. at 1408-09.) For that reason, the court extended the Edwards rule to the sixth amendment context and held that where an accused requests counsel at arraignment, a showing that he was subsequently advised of his Miranda rights and that he acquiesced in police-initiated questioning is insufficient to establish a valid waiver of his right to counsel. In the words of the Jackson court, “[j]ust as written waivers are insufficient to justify police-initiated interrogations after the request for counsel in a Fifth Amendment analysis, so too they are insufficient to justify police-initiated interrogations after the request for counsel in a Sixth Amendment analysis.” (Jackson, 475 U.S. at 635, 89 L. Ed. 2d at 642, 106 S. Ct. at 1410-11.) In our view, Jackson was decided wholly in the context of the sixth amendment and provides no support for the defendant’s contention that an accused who requests counsel at arraignment is presumptively also invoking his fifth amendment right to have counsel present at all custodial interrogation.

Nor is there any analytical support for this contention. The essence of the protections provided by Miranda and Edwards is to safeguard the fifth amendment right to counsel of an accused who has indicated an inability or unwillingness to cope with the pressures of custodial interrogation. As stated in Arizona v. Roberson (1988), 486 U.S. 675, 681, 100 L. Ed. 2d 704, 713, 108 S. Ct. 2093, 2097-98:

“[T]he prophylactic protections that the Miranda warnings provide to counteract the ‘inherently compelling pressures’ of custodial interrogation and to ‘permit a full opportunity to exercise the privilege against self-incrimination’ [citation] are implemented by the application of the Edwards corollary that if a suspect believes that he is not capable of undergoing such questioning without advice of counsel, then it is presumed that any subsequent waiver that has come at the authorities’ behest, and not at the suspect’s own instigation, is itself the product of the ‘inherently compelling pressures’ and not the purely voluntary choice of the suspect.”

At arraignment, no interrogation is taking place. Absent the pressures of custodial interrogation, there is no reason to presume that an accused who requests counsel to assist in his defense is also indicating an inability or unwillingness to deal with the police except through counsel. Such a presumption would be especially untenable in the instant cause, where the defendant confessed to the unrelated charge prior to his arraignment on that charge. He subsequently waived his Miranda rights and confessed to the instant offense. Never at any time did the defendant indicate that he was unable or unwilling to deal with police questioning without the aid of counsel. By requesting counsel at his arraignment on the unrelated charge, the defendant was invoking his sixth amendment right to have counsel present at all critical stages of the prosecution on that charge, including post-arraignment interrogation. Under Michigan v. Jackson (1986), 475 U.S. 625, 89 L. Ed. 2d 631, 106 S. Ct. 1404, the police were prohibited from initiating further questioning on that charge. However, we find no basis for concluding that they were also prohibited from advising him of his Miranda warnings and asking him if he would be willing to answer questions about an entirely unrelated investigation. As stated in Patterson v. Illinois (1988), 487 U.S. 285, 101 L. Ed. 2d 261, 108 S. Ct. 2389, the fact that a right to counsel exists does not necessarily mean that it has been invoked. “Preserving the integrity of an accused’s choice to communicate with police only through counsel is the essence of Edwards and its progeny — not barring an accused from making an initial election as to whether he will face the State’s officers during questioning with the aid of counsel, or go it alone.” (Patterson, 487 U.S. at 291, 101 L. Ed. 2d at 271-72, 108 S. Ct. at 2394.) If the defendant at any time during questioning on the instant offense had asked for counsel or indicated that he had just been given counsel at his arraignment, all questioning would have stopped pursuant to Edwards and Roberson. There is little chance, as there was in Edwards, that the defendant would have perceived the Miranda warnings in this context as a denial of his right to have counsel present during custodial interrogation. We conclude that the fact that the defendant accepted the appointment of counsel at his arraignment on an unrelated charge did not serve to invalidate his waiver of the right to have counsel present during questioning on the instant offense. Our decision is in accord with recent decisions of the State supreme courts of Washington, Michigan and Arizona. State v. Stewart (1989), 113 Wash. 2d 462, 780 P.2d 844, cert. denied (1990), 494 U.S. 1020, 108 L. Ed. 2d 502, 110 S. Ct. 1327; People v. Crusoe (1989), 433 Mich. 666, 449 N.W.2d 641; State v. Hitch (1989), 160 Ariz. 297, 772 P.2d 1150.

The defendant next contends that the trial court erred in allowing the jury to hear evidence that he failed a polygraph examination. Essentially, the defendant testified at trial that his confession was coerced by repeated threats of physical violence. In rebuttal, the State introduced testimony that the defendant confessed shortly after he was told that he had failed a polygraph examination. The jury was instructed that the testimony was not to be used as evidence that the defendant lied, but rather to determine whether the confession was voluntarily given. In ruling that the polygraph evidence was admissible for that limited purpose, the trial court relied upon People v. Triplett (1967), 37 Ill. 2d 234, 226 N.E.2d 30.

In Triplett, evidence was presented at a hearing on a motion to suppress that the defendant told a deputy sheriff that he would take a lie detector test and that if he failed it he would tell the truth. At his jury trial, the defendant testified on cross-examination that he agreed to take a lie detector test and that he was told that the test showed he was lying. Defense motions for a mistrial and that the jury be instructed to disregard the testimony were denied. On appeal, the State argued, as it does here, that evidence concerning the polygraph examination is admissible on the issue of voluntariness of a confession. The court recognized that although Illinois law manifests a strong aversion to the admissibility of polygraph evidence, “it can be argued that a different result should follow when the issue is the voluntariness of a confession.” (Triplett, 37 Ill. 2d at 239, 226 N.E.2d at 32.) The court further stated that “[i]t can be said that the fact that the confession followed a polygraph examination is a relevant circumstance and that it is the fact of the examination, rather than its result, that is significant.” (Triplett, 37 Ill. 2d at 239, 226 N.E.2d at 32.) The court held, however, that because no limiting instruction was given to the jury, a new trial was required regardless of whether or not the evidence was admissible.

The defendant argues that the supreme court decisions in People v. Baynes (1981), 88 Ill. 2d 225, 430 N.E.2d 1070, and People v. Yarbrough (1982), 93 Ill. 2d 421, 444 N.E.2d 493, indicate that the court considers polygraph evidence inadmissible for any purpose. In Baynes, the court held that the unreliability of polygraph tests is so great that the results could not be admitted at trial even by stipulation. In Yarbrough, the court held that a trial court could not rely upon polygraph results in ruling on a post-trial motion which raised the sufficiency of the evidence. The underlying rationale for both Baynes and Yarbrough was the fear that the fact finder would consider the polygraph results as conclusive. Neither Baynes nor Yarbrough dealt with the admissibility of polygraph evidence for the limited purpose of determining the voluntariness of a confession.

We believe that the evidence showing that the defendant failed the polygraph examination was admissible for the limited purpose of showing that it was his failure to pass the test, rather than the alleged threats of violence by the police, which motivated the defendant to confess. The larger question raised by the defendant is whether a limiting instruction under these circumstances can ever be effective. The supreme court decisions in Baynes and Yarbrough indicate that the danger in admitting polygraph evidence is that the finder of fact may regard such evidence as conclusive on the issue of the defendant’s guilt. In People v. Escobar (1988), 168 Ill. App. 3d 30, 44-45, 522 N.E.2d 191, this court held that a reference to the fact that the defendant had failed a polygraph test was at most harmless error in light of the strength of the State’s case. Here, the State presented overwhelming independent evidence to establish that the defendant’s confession was true and that he had committed the Duncavage murder. The physical evidence at the crime scene relating to the condition in which the victim was found matched the statements made in the defendant’s confession. The defendant’s voice was identified as the voice on the 911 call received by police at the time the murder was committed. When half of the 911 tape was played to the defendant, he was able to accurately state what was said on the remainder of the tape. Reginald Perry testified that the defendant told Perry and Sean Sullivan that he had broken into a woman’s apartment, sexually assaulted her, strangled her and then tied her body to a bed or radiator. Even if we were to agree with the defendant’s contention that error occurred, we are convinced that the error was harmless given the overwhelming evidence of guilt.

The defendant next contends that the State denied him his right to a fair trial by committing several violations of the discovery rules. Specifically, he maintains that the State failed to disclose to the defense: a statement by witness Paul Canale; the State’s intention to use the inspector general’s report for the Great Lakes Navy Brig; its intention to call David Allen West and Demetrio Hernandez as rebuttal witnesses; and the promise of leniency made to Reginald Perry.

The first alleged violation concerns the statement made by Paul Canale that he saw three black men, including the defendant, outside of Duncavage’s apartment building on August 1, 1982. The State maintains that the statement had never been written or memorialized in a summary and was therefore not discoverable under Supreme Court Rule 412(a)(i). (107 Ill. 2d R. 412(a)(i).) Officer Grogan, a defense witness, testified that during his investigation he spoke with Canale and that his report did not indicate that Canale told him about seeing three black men outside of the apartment building. The defendant argues that although there is no indication that Canale’s statement was written, there can be “little doubt that the State interviewed the witness prior to trial and made a summary of what he said.” This amounts to conjecture and is insufficient to establish a discovery violation on the part of the State. (People v. Mahaffey (1989), 128 Ill. 2d 388, 418, 539 N.E.2d 1186.) Moreover, the record shows that although the defendant made a motion for a mistrial at the end of Canale’s testimony, which was denied as untimely, he did not move for a continuance at the time he learned of the statement. Failure to seek a continuance generally waives a claim of error based on surprise. (People v. Nelson (1980), 92 Ill. App. 3d 35, 45, 415 N.E.2d 688.) Under the circumstances presented here, we do not believe that a new trial was warranted.

The next discovery violation alleged by the defendant involves the State’s failure to inform the defense that it intended to use an inspection report during the cross-examination of Officer Gabriel. Supreme Court Rule 412(a)(v) requires the prosecution to disclose “any books, papers, documents, photographs or tangible objects which the prosecuting attorney intends to use in the hearing or trial.” (107 Ill. 2d R. 412(a)(v).) Although the defendant claims on appeal that he was surprised and prejudiced by the inspection report, he did not request a continuance to examine its contents. The defendant subsequently used the report during his examination of Lieutenant Majority. We do not believe that the defendant has made a sufficient showing of prejudice to warrant reversal on this issue.

The next alleged discovery violation concerns the State’s failure to inform the defense that it intended to call David Allen West and Demetrio Hernandez as rebuttal witnesses. The State informed the defendant of its intention to call West sometime during the defense case. It declared its intention to call Hernandez after the defense rested. The court allowed defense counsel time to interview the witnesses prior to their testimony. West testified concerning the lack of security at the Navy brig, and Hernandez testified that the defendant sold him a radio on the north side of Chicago at a time when the defendant testified he was living in a northwest suburb. Because the State may not know if a witness will be called in rebuttal until the defense testimony is heard, the State need not inform the defense of its intention to call a rebuttal witness until that intention has been formed. (People v. Galindo (1981), 95 Ill. App. 3d 927, 932, 420 N.E.2d 773.) Even where the State does not strictly comply with this rule, the decision of whether or not to exclude a rebuttal witness rests within the sound discretion of the trial court. (People v. Pitts (1982), 104 Ill. App. 3d 451, 457, 432 N.E.2d 1062.) In the case at bar, the State argued to the trial court that it did not form its intention to call Hernandez until after it had heard the defendant’s testimony about living in a northwest suburb and that it did not form the intention to call West until it heard Gabriel’s testimony concerning the security of the brig. The court ruled that the witnesses would be allowed to testify after the defendant had an opportunity to interview them. We are unable to conclude that this ruling constituted an abuse of discretion.

The next alleged discovery violation is the State’s failure to inform the defendant and the jury that Reginald Perry was promised leniency in exchange for his testimony. Although both Perry and the State maintained throughout the course of the trial that no promise of leniency had been made, Perry later testified after his indictment on a murder charge that the State promised him immunity from prosecution on that charge in exchange for his testimony against the defendant. Perry’s testimony concerning the promise of immunity was contradicted by the prosecutor who handled the instant cause. There is absolutely no basis upon which we can conclude that the alleged promise of leniency was a fact that the State was required to disclose to the defendant pursuant to the discovery rules.

The defendant next contends that the trial court erred in prohibiting him from cross-examining Perry about his expectation of leniency with respect to a murder investigation in which he was the prime suspect. Prior to trial, defense counsel moved for discovery of any promises of leniency that had been made to Perry. The State represented that no promises had been made, and the trial court ordered a voir dire examination of Perry. It was discovered that Perry was being held in the witness quarters rather than the county jail because he feared the defendant. Once, after Perry had been arrested, the prosecutor obtained an “I” bond to keep him out of the jail where the defendant was incarcerated. Regarding the pending murder investigation, the prosecutor stated that “great pains” were taken to keep Perry from knowing that he was a suspect “so he wouldn’t come in expecting anything, hoping for anything.” Perry testified at the voir dire that to his knowledge he was not under investigation for the murder of Ivan Leon, which occurred on August 8, 1985. Perry further testified that no promises of leniency on any case, pending or future, had been made by the prosecution. Based on this testimony, the trial court ruled that the defendant would not be permitted to cross-examine Perry concerning any expectations of leniency with respect to the Leon murder. At trial, Perry testified that he had not been promised anything in exchange for his testimony. Subsequently, Perry confessed to and was charged with the murder of Ivan Leon. Perry testified at a pretrial hearing in that case that he had been promised immunity from prosecution on the Leon murder in exchange for his testimony against the defendant in the instant cause. His testimony on that point was contradicted by the attorney who prosecuted the instant cause. This was brought to the court’s attention in the defendant’s motion for a new trial.

Cross-examination designed to show that a witness might be vulnerable to pressure, real or imagined, from the authorities regarding a pending charge is a matter of right. (People v. Kellas (1979), 72 Ill. App. 3d 445, 453, 389 N.E.2d 1382.) However, where there is no expectation of leniency from the prosecution regarding the pending charge, the trial court may properly prohibit cross-examination regarding that charge. People v. Martin (1978), 59 Ill. App. 3d 785, 789-90, 376 N.E.2d 65.

In the case at bar, Perry testified at the voir dire examination that to his knowledge he was not under investigation for the Leon murder and that he had not been promised anything in exchange for his testimony. Based on that testimony, the court prohibited cross-examination regarding the Leon murder. Perry’s trial testimony was essentially the same as what he had told the police in 1983, two years prior to the Leon murder. We cannot conclude that the court’s ruling constituted an abuse of discretion. Our conclusion is not changed by the fact that Perry subsequently testified at his own murder trial, where the motive to fabricate was clear, that he had been promised immunity in exchange for his testimony.

The defendant next contends that the trial court erred in allowing the State to introduce hearsay testimony concerning other crimes and race. Specifically, the defendant objects to Perry’s testimony that the defendant committed burglaries and raped women on the north side and Detective Mahon’s testimony that the defendant’s friends said that the defendant told them he had killed and raped white women. Detective Mahon also testified that the defendant was a suspect in several home invasion murders, including those involving victims Marilyn Dods, Ellen Johnson and Faustina Gray, all of whom had been found in their bathtubs. No evidence was introduced showing that the defendant had committed the Dods or Johnson murders.

Generally, evidence of crimes unconnected to the crime for which the defendant is on trial is inadmissible. (People v. Connor (1988), 177 Ill. App. 3d 532, 537, 532 N.E.2d 520.) However, evidence of other crimes is admissible where it shows a consciousness of guilt on the part of the defendant (People v. Baptist (1979), 76 Ill. 2d 19, 27, 389 N.E.2d 1200) or where the evidence is admitted to establish the circumstances surrounding the defendant’s arrest (People v. Connor, 177 Ill. App. 3d 532, 532 N.E.2d 520). The admission of other crimes evidence rests within the sound discretion of the trial court, and reversal is not warranted unless there has been an abuse of that discretion. People v. Connor, 177 Ill. App. 3d 532, 532 N.E.2d 520.

We believe that Perry’s testimony was properly admitted at trial to demonstrate the defendant’s consciousness of guilt and to establish the circumstances leading to the defendant’s arrest for the murder in the instant cause. While Detective Mahon’s testimony was improper, we do not believe that it served to prejudice the defendant in light of the strength of the State’s case against him. The defendant’s contention that the State improperly interjected the issue of race at trial so as to deny him a fair trial is without merit. No argument was made that the instant offense was racially motivated, and the references to race were not so inflammatory that they would prejudice the defendant.

The defendant next contends that the court improperly allowed testimony concerning the defendant’s post-arrest silence. Detective Mahon testified that after he gave the defendant the Miranda warnings, the defendant said he would to talk to them. Mahon then told the defendant that the police believed he was involved in several murders on the north side, to which the defendant made no reply. Mahon then told the defendant about his suspected involvement in certain murder investigations, and the defendant replied, “I don’t know anything about this. I had nothing to do with this.” The defendant characterizes Mahon’s testimony that he failed to respond to one of the questions as impermissible evidence of post-arrest silence.

It is error to comment on a defendant’s post-arrest silence. (Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240.) However, a mere mention of the defendant’s failure to answer a particular question, where the failure is not argued to be indicative of guilt, is not necessarily an impermissible comment on the defendant’s post-arrest silence. (People v. Lindgren (1982), 111 Ill. App. 3d 112, 117, 443 N.E.2d 1129.) The record before us shows that the defendant agreed to answer questions by the police, failed to answer one question, then went on to answer others. At no time did the State comment upon the defendant’s silence or attempt to draw an inference of guilt from his refusal to respond to one of the questions. We therefore find that no error occurred. People v. Lindgren, 111 Ill. App. 3d 112, 443 N.E.2d 1129; People v. LaSumba (1980), 92 Ill. App. 3d 621, 625, 414 N.E.2d 1318.

The next contention made by the defendant is that the testimony of David Allen West was improper rebuttal testimony and should not have been allowed.

The defense theory at trial was that the defendant did not commit the instant offense and that his confession to the crime was coerced. As support for this theory, he maintained that at the same time he confessed to the instant offense he also confessed to having killed Faustina Gray. However, the Gray murder occurred at a time when he was in the Navy brig. The defendant claimed that because he could not have committed the Gray murder, his confession to the instant murder was also suspect. The testimony of Officer Gabriel was offered to show that the defendant was in the maximum security area of the brig at the time of the Gray murder. Gabriel reviewed the inspection records and testified that they indicated that the defendant was in his cell on the day of the Gray murder. Gabriel admitted on cross-examination that failures in the area of security had occurred and that there had been irregularities in record keeping. David Allen West testified in rebuttal that he had been confined to the medium security area of the brig during the relevant time period and that security was lax. He testified that prisoners were sometimes left unguarded. West admitted that he was in the medium security section of the brig and knew nothing of the maximum security section.

Rebuttal evidence is defined as evidence which explains, repels, contradicts or disproves evidence produced by the accused. (People v. Bell (1927), 328 Ill. 446, 451, 159 N.E. 807.) Rebuttal evidence may be used to contradict evidence as to a material issue, but not as to a collateral or immaterial matter. (People v. Williams (1981), 96 Ill. App. 3d 958, 964, 442 N.E.2d 199.) The admissibility of rebuttal evidence is a matter left to the discretion of the trial court, and the court’s determination will not be reversed absent a clear abuse of that discretion. People v. Williams, 96 Ill. App. 3d 958, 442 N.E.2d 199.

West’s testimony was presented to contradict matters which went to the heart of the defendant’s theory at trial and was therefore not inadmissible as relating to collateral matters. The defendant maintains that the testimony was not proper rebuttal because it concerned the medium security rather than the maximum security area of the brig and because Officer Gabriel admitted problems in security at the brig. The trial court, in the exercise of its discretion, decided to allow the testimony. The defendant has not persuaded us that this decision constituted a clear abuse of discretion.

The next contention raised by the defendant is that he was denied a fair trial as the result of the prosecutor’s references to prejudicial factors concerning the life of the victim, Mary Beth Duncavage.

During opening argument, the State made several references to the life, interests and career of the victim, including the fact that she was a medical student with an interest in dance. Objections to these comments were sustained. Later, a photograph of the victim wearing a dancer’s outfit was allowed to go to the jury. The defendant maintains that these were irrelevant and improper efforts to inflame the passions of the jury.

We believe that the court’s prompt action in sustaining objections to the prosecutor’s comments served to cure any prejudice that might otherwise have resulted. (People v. Williams (1983), 97 Ill. 2d 252, 305-06, 454 N.E.2d 220.) The defendant has not identified any specific prejudice from the court’s admission of the photograph, and we do not believe that a new trial is warranted as a result of its admission.

Finally, the defendant contends that a new sentencing hearing is required because the trial court erroneously considered victim-impact evidence.

At the sentencing hearing, the victim’s mother testified concerning the effect of the victim’s death upon the family. The trial court denied a defense objection to this testimony. A written victim-impact statement was also received into evidence. The State did not refer to the victim-impact evidence when arguing the aggravating factors present in this case. In imposing a sentence of natural life imprisonment, the trial court made the following statement:

“The crime in this case staggers the human and moral senses and by its horribly unspeakable nature renders one at a loss for words to describe it and its impact. It does, however, bespeak the cruel and heartless perpetrator.
Even in this building, even in this other worldly environment of criminals, degenerates, deceivers, lovers of violence and miscreants of every kind, the defendant, Jackson, stands out as being a genuinely evil person, quintessentially evil person.
Natural life in prison is the only alternative sentence to the death penalty. There is no reasonable prospect of rehabilitation in this case. Isolation from a free society is the only sentence and necessary sentence to protect society for the self-preservation and the self-defense of society.
Even in the prison population, if it could be so, I think Jackson should be isolated.
The sentence I am now imposing which is on the murder convict, is natural life in prison and on the rape conviction sixty years.
As I have indicated, both sentences are being imposed for the reasons stated by this exceptionally brutal and heinous nature indicative of wanton cruelty in the words of the statute.
I hope that no reviewing court would consider reducing this sentence. If one were here today or here during the course of the trial, no reviewing judge I think could reduce this sentence.
I hope that no future governor would ever take it upon himself to allow Jackson to rejoin a free society and I want those remarks as part of the record in this case.”

In Booth v. Maryland (1987), 482 U.S. 496, 96 L. Ed. 2d 440, 107 S. Ct. 2529, it was held that it is reversible error to permit victim-impact testimony during the sentencing phase of a capital case. However, in People v. Crews (1988), 122 Ill. 2d 266, 288, 522 N.E.2d 1167, cert. denied (1989), 492 U.S. 925, 106 L. Ed. 2d 605, 109 S. Ct. 3260, the Illinois Supreme Court determined that such error may in some instances be harmless. In Crews, the victim-impact evidence was presented to a judge rather than a jury, the prosecutor referred to the evidence only once and the trial court did not refer to the evidence when imposing sentence. As in Crews, we believe that the error in admitting victim-impact evidence in the case at bar was harmless beyond a reasonable doubt. The prosecutor made no reference to the evidence when arguing the factors in aggravation. It is clear from the trial court’s comments, set forth above, that it was the brutal and heinous nature of the crime and the lack of remorse or rehabilitative potential on the part of the defendant which led the court to impose the sentence of natural life imprisonment.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

McMORROW, P.J., and JOHNSON, J., concur.

      In a dissent, Justice Rehnquist persuasively argued that the application of the Edwards rule in the context of the sixth amendment does not make sense.


source: Caselaw Access Project

author: JUSTICE JIGANTI PRESIDING JUSTICE McMORROW,

license: Public Domain

text:
    KAREN HILL, Plaintiff-Appellant, v. JAY JONES, Indiv. and d/b/a Arabesque Farms, Defendant-Appellee.
    First District (4th Division)
    No. 1—88—2709
    Opinion filed May 10, 1990.
    McMORROW, P.J., dissenting.
    Terrence J. Tyksinski, of Chicago (Robert Handelsman, of counsel), for appellant.

      Deborah Gaynor Haspel, of Artery & Haspel, of Northbrook, for appellee.
   JUSTICE JIGANTI

delivered the opinion of the court:

The trial court granted the defendant’s motion for summary judgment. The plaintiff subsequently sought to vacate the grant of summary judgment and amend the pleadings. The trial court denied the plaintiff’s motion. This appeal questions the power and discretion of the trial court to deny the plaintiff’s motion to vacate the judgment and amend the pleadings.

The plaintiff, Karen Hill, a minor, was employed as a caretaker of horses by the defendant, Jay Jones, at his horse farm, Arabesque Farms. While Hill was so employed, Ansata El Emir, an Arabian stallion, bit Hill. Based on this incident, Hill filed a one-count complaint against Jones and Arabesque Farms, alleging, pursuant to the Animal Control Act (Ill. Rev. Stat. 1985, ch. 8, par. 366), that the defendant had failed to warn her of the known vicious propensities of the horse. In the two years following the filing of the complaint, the parties took the following procedural steps: the defendant filed an answer, an affirmative defense, and a set of interrogatories; the plaintiff, her mother, and Jay Jones submitted to depositions; the trial court denied the defendant’s first summary judgment motion, which was grounded in the theory that the plaintiff had assumed the risk and was therefore barred from recovery.

On May 6, 1988, the defendant filed a second motion for summary judgment. The defendant based this motion on the case of Harris v. Walker (1988), 119 Ill. 2d 542, 519 N.E.2d 917, which the Illinois Supreme Court had decided in February of 1988. In Harris, the supreme court ruled that the Animal Control Act does not apply to persons who, through their relationship with an animal’s owner, know of the risk an animal poses to them. Based on Harris, the trial court granted the defendant’s summary judgment motion. At the hearing on the defendant’s motion the plaintiff made an oral request for leave to file an amended complaint which the court denied. Within 30 days of the trial court’s ruling, the plaintiff filed a written motion to vacate the summary judgment and allow leave to file an amended complaint. In this motion the plaintiff proposed two causes of action “quite apart from her statutory cause of action under the Animal Control Act.” Attached to the motion was a two-count complaint in which the plaintiff alleged negligence and fraud. The trial court denied the plaintiff’s motion, and from that order she appeals.

The plaintiff’s initial argument on appeal is that the oral request for leave to amend the pleadings that she made before the court’s ruling at the hearing on the defendant’s motion for summary-judgment brings her within the boundaries of section 2—616(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2—616(a)). Section 2—616(a) provides:

“At any time before final judgment amendments may be allowed on just and reasonable terms ***.” (Ill. Rev. Stat. 1985, ch. 110, par. 2—616(a).)

While there is a record of the plaintiff’s oral request, there is no evidence that the plaintiff provided the court with the proposed amendment at the time of her oral motion or gave any specific indication to the court of the contents of the proposed amendment. The trial judge need not presume that a proposed amendment will be a proper one. Without a record of any reasons or facts that the plaintiff may have presented to the trial judge as a basis for requesting a favorable ruling on the motion to amend, we cannot say that the trial court abused its discretion in denying the plaintiff’s oral motion. See Intini v. Schwartz (1979), 78 Ill. App. 3d 575, 397 N.E.2d 84.

In the alternative, the plaintiff argues that under section 2—1005(g) of the Illinois Code of Civil Procedure, she has an absolute right to amend her pleadings before or after the entry of a summary judgment. Section 2—1005(g) provides:

“Before or after the entry of a summary judgment, the court shall permit pleadings to be amended upon just and reasonable terms.” (Ill. Rev. Stat. 1985, ch. 110, par. 2—1005(g).)

In response to the plaintiff’s argument, the defendant maintains that section 2—1005(g) of the Code of Civil Procedure cannot be construed to countermand section 2—616(c). Section 2—616(c) provides:

“A pleading may be amended at any time, before or after judgment, to conform the pleadings to the proofs, upon terms as to costs and continuance that may be just.” (Ill. Rev. Stat. 1985, ch. 110, par. 2-616(c).)

The defendant’s conclusion is that after summary judgment has been granted, the plaintiff may amend the pleadings only to conform the pleadings to the proofs.

To support his argument, the defendant cites Wells v. Great Atlantic & Pacific Tea Co. (1988), 171 Ill. App. 3d 1012, 525 N.E.2d 1127, in which the court sought to reconcile the two sections. The Wells court reasoned that when taken together, sections 2—616(c) and 2—1005(g) stand for the proposition “that before or after a grant of summary judgment, but before the summary judgment becomes final, the court shall permit pleadings to be amended upon just and reasonable terms.” (Wells, 171 Ill. App. 3d at 1020, 525 N.E.2d at 1132.) The Wells court concluded that after summary judgment is final, the only permissible amendments are those that conform the pleadings to the proofs.

In the case of Loyola Academy v. S&S Roof Maintenance, Inc. (1990), 198 Ill. App. 3d 799, this court recently questioned the analysis of the Wells court. As we noted in Loyola, the Code of Civil Procedure is to be liberally construed “to the end that controversies may be speedily and finally determined according to the substantive rights of the parties.” (Ill. Rev. Stat. 1985, ch. 110, par. 1—106.) Standing alone, section 2—616(c) limits amendments to pleadings after final judgment to those amendments that conform the pleadings to the proofs. In the present case, the court had granted summary judgment to the defendants before the plaintiff filed a written motion for leave to amend the pleadings. Nevertheless, we do not believe that the plaintiff is therefore limited to amendments that conform the pleadings to the proofs. As we pointed out in Loyola, it is our view that the discretionary power of the court under section 2—1005(g), to permit amendments upon just and reasonable terms, implicates the power of the court to vacate final judgments, under sections 2—1203 and 2—1301(e) of the Code of Civil Procedure. (See Ill. Rev. Stat. 1985, ch. 110, pars. 2—1203, 2—1301(e).) The court has the discretion to vacate a judgment when doing so promotes substantial justice between the parties. (Espedido v. St. Joseph Hospital (1988), 172 Ill. App. 3d 460, 526 N.E.2d 664.) Vacating the summary judgment removes the final judgment impediment of section 2—616(c) so that amendments for just and reasonable terms may be allowed. (See Ruklick v. Julius Schmid, Inc. (1988), 169 Ill. App. 3d 1098, 523 N.E.2d 1208.) In the present case, the court, in the interest of promoting justice between the parties, had the necessary power to vacate the summary judgment and allow the plaintiff to amend the pleadings upon just and reasonable terms. See Siebert v. Continental Oil Co. (1987), 161 Ill. App. 3d 891, 515 N.E.2d 728.

Contrary to the plaintiff’s assertion, however, section 2—1005(g) does not give her an absolute right to amend her complaint after summary judgment. (Ruklick, 169 Ill. App. 3d at 1113, 523 N.E.2d at 1217.) Rather, the decision to vacate a judgment and permit further amendment rests within the sound discretion of the trial court. (Edwards v. University of Chicago Hospitals & Clinics (1985), 137 Ill. App. 3d 485, 484 N.E.2d 1100.) As we stressed in Loyola, the court, in determining whether to allow an amendment to the pleadings, must necessarily consider the stage of the proceedings at the time the movant brings the proposed amendment. See Able v. Pure Oil Co. (1972), 8 Ill. App. 3d 558, 290 N.E.2d 331.

Upon reaching the summary judgment stage of the proceedings, the court has moved from an examination of the sufficiency of the pleadings, through the discovery stage, to a determination of whether there are material issues of fact to advance to a full trial. (See Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 312 N.E.2d 605.) Presumptively, at the time of the hearing on the motion for summary judgment, the parties are aware of the significant facts and law which apply to the case. The hearing on the motion is an important, potentially dispositive stage of the proceeding. Consequently, the parties have a responsibility before the hearing to make known to the trial judge the significant matters of which they are aware. Accordingly, motions to amend the pleadings which the movant could have anticipated should be made before the court reaches the summary judgment stage. In proposing amendments to the pleadings at the hearing on the summary judgment motion, or after the summary judgment has been granted, the movant increases the likelihood of prejudice to the opposing party and burden to the court. (3 R. Michael, Illinois Civil Procedure §26.2 (1989).) It is not appropriate practice for the parties to engage in piecemeal litigation-seeing one theory of the case to conclusion before proposing another. See Powers v. National Mirror Works (1977), 52 Ill. App. 3d 592, 367 N.E.2d 763.

In arguing that her amended pleading should be allowed, the plaintiff refers to Ruklick v. Julius Schmid, Inc., as a case that is on “all fours” with her own. However, the Ruklick decision revolved around proper pleading. In Ruklick, the plaintiffs complaint had been dismissed on statute of limitations grounds. The Ruklick court found that the plaintiff should subsequently have been allowed to amend her pleadings, pursuant to section 2—612 (Ill. Rev. Stat. 1985, ch. 110, par. 2—612), to reflect additional specificity as to the date or discovery of her injury. We do not believe the plaintiff’s case to be on “all fours” with Ruklick, because we do not view motions to substantially amend the pleadings after summary judgment with the same liberality that we view motions to amend the pleadings to be more specific after a complaint has been dismissed.

In the present case, the plaintiff is proposing to make significant changes to the pleadings after summary judgment has been granted. The plaintiff could have anticipated these amendments far earlier in the course of the litigation. As the plaintiff has offered no justification for failing to propose her alternative theories at a more appropriate stage of the proceedings, we do not believe the trial court abused its discretion in denying the plaintiff leave to amend.

The judgment of the trial court is affirmed.

Affirmed.

JOHNSON, J., concurs.

PRESIDING JUSTICE McMORROW,

dissenting:

I respectfully dissent for the reasons stated in my dissent in Loyola Academy v. S&S Roof Maintenance, Inc. (1990), 198 Ill. App. 3d 799. As in Loyola, the majority in the instant cause ostensibly recognizes the plaintiff’s right to amend following summary judgment pursuant to section 2—1005(g) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(g)), but then eviscerates this right by imposing unprecedented and needlessly restrictive limitations on the circumstances in which the plaintiff’s right to amend will be permitted. The majority creates a broad rule that “motions to amend the pleadings which the movant could have anticipated should be made before the court reaches the summary judgment stage.” (198 Ill. App. 3d at 858.) (Emphasis added.) On this basis, the majority determines that the trial court properly denied plaintiff’s request to amend following summary judgment because the “plaintiff could have anticipated [her] amendments far earlier in the course of the litigation” and has “offered no justification for [not] proposing] her alternative theories at a more appropriate stage of the proceedings.” 198 Ill. App. 3d at 858-59.

The majority’s ruling is contrary to Illinois precedent regarding requests to amend following summary judgment. (See Siebert v. Continental Oil Co. (1987), 161 Ill. App. 3d 891, 515 N.E.2d 728; Ruff v. Northwestern Memorial Hospital (1987), 159 Ill. App. 3d 811, 513 N.E.2d 7, relying upon Kupianen v. Graham (1982), 107 Ill. App. 3d 373, 377, 437 N.E.2d 774; see also Wingate v. Camelot Swim Club, Inc. (1990), 193 Ill. App. 3d 963.) As I stated in more detail in my dissent in Loyola, the decisions of Siebert v. Continental Oil Co. (1987), 161 Ill. App. 3d 891, 515 N.E.2d 728, Ruff v. Northwestern Memorial Hospital (1987), 159 Ill. App. 3d 811, 513 N.E.2d 7, and Kupianen v. Graham (1982), 107 Ill. App. 3d 373, 437 N.E.2d 774, are controlling authority that recognize the trial court’s power to permit amendments, following a final order of summary judgment, to add new causes of action or legal theories to those alleged in the plaintiff’s original pleading.

Contrary to the arguments made by defendant on appeal, the courts of review in Siebert and Ruff did not limit the plaintiffs to amendments that conformed the pleadings to the proofs. The courts in Siebert and Ruff held that the plaintiffs should be permitted to allege new causes of action or legal theories on remand. Also, neither Seibert, Ruff, nor the plain language of section 2—1005(g) of the Code of Civil Procedure limits the opportunity to amend to instances where the court has entered only partial summary judgment. Consequently, I find defendant’s contentions on appeal insufficient ground to affirm the trial court’s ruling.

According to Siebert, Ruff, and Kupianen, the trial court’s exercise of its discretion to allow amendment following summary judgment should be reviewed according to the following factors: “ ‘whether the proposed' amendment would cure the defective pleading [citation]; whether other parties would sustain prejudice or surprise by virtue of the proposed amendment [citations]; the timeliness of the proposed amendment [citation]; and whether previous opportunities to amend the pleadings could be identified. [Citation.]’ ” (Siebert, 161 Ill. App. 3d at 895, quoting Kupianen, 107 Ill. App. 3d at 377.) Application of this established standard to the case at bar reveals that the trial court should have allowed plaintiff’s motion for leave to file an amended complaint.

The facts of the instant case indicate that, upon consideration of these factors, the trial court should have allowed plaintiff’s motion for leave to amend. Plaintiff’s suit against defendant sought recovery under the Animal Control Act (Ill. Rev. Stat. 1987, ch. 8, par. 366 et seq.) for personal injuries allegedly suffered by plaintiff when she was attacked by defendant’s horse. The trial court allowed defendant’s summary judgment motion because an Illinois Supreme Court decision filed after plaintiff’s suit was instituted necessitated the conclusion that plaintiff, as defendant’s employee, could not recover under the Animal Control Act. (See Harris v. Walker (1988), 119 Ill. 2d 542, 510 N.E.2d 917.) Plaintiff requested leave to file an amended complaint at the court’s hearing on defendant’s summary judgment motion, but the trial court denied plaintiff’s oral motion. Plaintiff thereafter filed a timely motion to vacate the summary judgment, supported by a motion for leave to file a proposed amended complaint in which plaintiff sought recovery based on common law negligence and fraud. The trial court denied these motions, and plaintiff appeals.

The first element, i.e., whether the plaintiff’s amendments overcame the deficiency of her original pleading, favors the allowance of plaintiff’s motion to vacate summary judgment and permit the filing of her amended complaint. Plaintiff’s proposed amended complaint cures the defects in plaintiff’s original pleading under the Animal Control Act, which was deficient because plaintiff, as defendant’s employee, could not recover under that act. The proposed amended complaint is sufficient to state a claim for common law negligence and fraud notwithstanding plaintiff’s status as defendant’s employee. See, e.g., HPI Health Care Services, Inc. v. Mt. Vernon Hospital, Inc. (1989), 131 Ill. 2d 145, 165, 545 N.E.2d 672 (elements of fraud); Forsyth v. Dugger (1988), 169 Ill. App. 3d 362, 367, 523 N.E.2d 704 (elements of common law negligence action based upon injury caused by animal).

The remaining factors also favor allowance of plaintiff’s motion for leave to file an amended complaint. The record shows that plaintiff promptly sought leave to amend at the court’s summary judgment hearing. The record also indicates that plaintiff had not previously sought leave to amend her complaint. Permitting the motion to amend would not be unfairly prejudicial to defendant, who was actively involved in the litigation since its inception. The court in Siebert reasoned that “ ‘[n]o prejudice or surprise could have resulted to the other parties since the case was still at the pleading stage. The proposed amendment was presented to the trial court at the time the motion to vacate was heard.’ ” (Siebert, 161 Ill. App. 3d at 896, quoting Kupianen, 107 Ill. App. 3d at 377.) The case at bar was also at the pleading stage, and, as in Siebert, “[n]o prejudice or surprise could have resulted to the other parties.” (161 Ill. App. 3d at 896.) Also, in the case at bar, as in Siebert and Kupianen, “[djespite the plaintiff’s having had previous opportunities in the case sub judice to amend the complaint, the only just and reasonable approach now is to allow the plaintiff to amend the complaint.” (Siebert, 161 Ill. App. 3d at 896.) Based upon Siebert, Ruff, and Kupianen, and in order to do substantial justice between the parties, the trial court should have allowed plaintiff leave to file an amended complaint.

The majority fails to apply the Kupianen factors to the case at bar. In place of the Kupianen factors, the majority creates a new, broad rule that “motions to amend the pleadings which the movant could have anticipated should be made before the court reaches the summary judgment stage.” (198 Ill. App. 3d at 858.) On this basis, the majority determines that the trial court properly denied plaintiff’s request to amend following summary judgment because the “plaintiff could have anticipated these amendments far earlier in the course of the litigation” and has “offered no justification for [not] proposing] her alternative theories at a more appropriate stage of the proceedings.” (198 Ill. App. 3d at 858-59.) Thus, the majority relies exclusively upon the factor which the court in Siebert, Ruff, and Kupianen found least significant and readily excused, i.e., whether the plaintiff had prior opportunities to amend the complaint.

As I stated in greater detail in my dissent in Loyola, I find neither logic nor wisdom in the majority’s ruling. Also, as noted above, the parties in the case at bar were still at the pleading stage when plaintiff presented her request to file an amended complaint alleging, not new facts, but different legal theories. The parties have acknowledged that little, if any, additional discovery would be required if plaintiff’s motion to amend were allowed. The prejudice to plaintiff is apparent in the court’s refusal to allow plaintiff to file her first amended complaint, but I fail to see how defendant would be prejudiced by the allowance of the motion to file plaintiff’s first amended complaint, particularly since the parties were still before the court with arguments relating to the pleadings.

For these reasons, and those stated in my dissent in Loyola, I disagree with the majority’s refusal to apply the factors set forth in Kupianen, and the majority’s determination that the trial court properly denied plaintiff leave to amend its complaint following summary judgment.


author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GASPER LaROSA et al., Defendants-Appellants.
    First District (4th Division)
    No. 1—88—3726
    Opinion filed May 10, 1990.

      Kelly E. Cotter, of Ramsell & Associates, of Schaumburg, for appellants.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Paula Carstensen, and Catherine Bernard, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant Gasper LaRosa was charged with driving while his license was revoked, improper lane usage and driving while under the influence of alcohol. Following a hearing on defendant LaRosa’s motion to quash his arrest and suppress evidence, the trial court found LaRosa and the two witnesses, Larry LeGrand and Thomas Le-Grand, who testified on his behalf, in direct criminal contempt of court for perjury. All three were sentenced to 30 days in jail. On appeal, defendants contend that the trial court abused its discretion.

We reverse.

The morning of July 16, 1988, LaRosa, Larry LeGrand and Thomas LeGrand (Larry’s father) attended a golf outing in Mokena, Illinois. All three men consumed alcohol throughout the day and into the evening at three separate taverns. Police were contacted by the manager of the last place they visited, Henry’s Pizza, because of a disturbance in the parking lot. It was reported that all three men started a fight with patrons in the parking lot, used profanity, and broke liquor bottles.

Officer Ivan Folsom testified that the restaurant staff described defendants’ vehicle as a camper and provided the license number. They also described LaRosa as a middle-aged man with dark hair' and wearing a baseball cap. One of the two with LaRosa was stated to be an older, stocky man with salt-and-pepper curly hair. The other was a younger man who wore shorts. Neither of the latter two men wore baseball caps.

The officer testified that when he located the camper it was traveling eastbound on 103rd Street approaching Roberts Road. When the driver turned right onto Roberts Road, the officer noticed that the vehicle weaved between the two lanes, riding over the median on the inside and alternately striking the right shoulder of the road. The officer then directed his spotlight onto the outside rear view mirror of the camper in order to catch the driver’s attention, and he clearly observed LaRosa as the driver of the camper. When the driver did not stop, the officer activated his lights. After the camper came to a stop, the driver and the two occupants fled the cab area into the rear camper portion. Although no one responded immediately, Thomas was the first to leave the camper. He identified himself to Officer Folsom as the driver. After the officer stated that he knew Thomas was not the driver, Thomas then admitted that he was not. The officer further testified that Thomas explained that the three had been to a sporting event and that LaRosa had driven the camper because he was the most sober. When LaRosa left the camper, he refused to submit to field-sobriety tests. The officer testified that all three appeared drunk, but he charged only LaRosa, as the driver.

Both Larry and Thomas testified that Thomas was the driver of the camper on the evening in question. Larry admitted that he was intoxicated and that he knew LaRosa’s license had been previously suspended for drunken driving charges. Larry testified that all three wore blue baseball caps that day. During Thomas’ testimony the court admonished defense counsel against presenting perjured testimony.

LaRosa also testified that he was not the driver on the evening in question, but he admitted driving subsequent to the revocation of his license.

The trial court denied the defense motion to quash and found the testimony of defendant LaRosa and his two witnesses to be well rehearsed. He then declared all three to be in direct contempt of court for committing perjury.

Any conduct which is calculated to embarrass, hinder or obstruct the court in its administration of justice or lessen its authority or dignity is criminal contempt. (People v. L.A.S. (1986), 111 Ill. 2d 539, 543.) Contempt may be direct or indirect; direct contempts are those committed in open court. See People v. Howarth (1953), 415 Ill. 499.

In order for a court to declare a direct criminal contempt for false swearing, the court must have personal knowledge of the falsity. (See People v. Randall (1980), 89 Ill. App. 3d 406.) Falsity of the testimony must appear beyond a reasonable doubt from the defendants’ admissions in open court and from no other source. A court may not summarily punish a witness for contempt solely on the basis of the court’s opinion that the witness is committing perjury. (See People v. Javaras (1972), 51 Ill. 2d 296.) When the trial court does not have such knowledge of the contempt, the alleged contemnor must be informed of the charges against him in writing, be given an opportunity to answer and afforded a hearing on the matter. (People v. Javaras, 51 Ill. 2d at 299-300.) In the case at bar, only the police officer testified that defendant LaRosa was the driver of the automobile. LaRosa and his two witnesses, Thomas and Larry LeGrand, all testified that Thomas was the vehicle driver and none of the three varied from this story. This testimony does not give the court personal knowledge and does not amount to a direct contempt. (People v. Randall, 89 Ill. App. 3d at 412.) The mere conflict in testimony is not sufficient to support the trial court’s determination.

The order of direct criminal contempt is reversed.

Reversed.

LINN and JIGANTI, JJ., concur.


author: JUSTICE LINN

text:
    JOHN T. SANTOS, Plaintiff-Appellee, v. CHICAGO TRANSIT AUTHORITY, Defendant-Appellant.
    First District (4th Division)
    No. 1—89—1449
    Opinion filed May 10, 1990.
    Rabens, Formusa & Classman, Ltd., of Chicago (S. Joseph Formusa, of counsel), for appellant.
    Raymond P. Concannon, Ltd., of Chicago (Raymond P. Concannon and Michael P. Concannon, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, John T. Santos, sued the Chicago Transit Authority (CTA) for injuries he sustained during a January 18, 1980," accident in which a CTA bus struck Santos as he ran toward the bus. After a trial, the jury found in Santos’ favor based upon the parties’ comparative negligence, but reduced the verdict awarded to plaintiff by 60%.

On appeal, the CTA argues that the trial court: (1) improperly failed to grant defendant’s motions for directed verdict, for judgment notwithstanding the verdict, and for a new trial; (2) improperly failed to submit to the jury defendant’s special interrogatories; and (3) improperly ruled on the introduction and exclusion of certain evidence. The CTA also argues that several remarks which plaintiff’s counsel made during his closing argument denied the defendant’s right to a fair trial. Because we conclude that the trial court erroneously failed to submit to the jury the defendant’s special interrogatories, we reverse and remand this matter for a new trial.

Background

During the evening of January 18, 1980, plaintiff and his girlfriend stood in an apartment doorway near the intersection of Irving Park Road and Southport while waiting for a bus to arrive. After Santos saw the bus approach, he ran to the curb to “flag down” the bus. When the bus reached the intersection, it turned west (right) down Irving Park Road. At this time, Santos neared the bus and began knocking on the front door. He testified that the bus came onto the sidewalk during the turn and knocked him over. Santos did not think that the bus actually ran over him, but that, instead, the bottom of the bus caught his right leg and dragged him along onto Irving Park Road. Plaintiff’s girlfriend unsuccessfully tried to pull him out from under the bus. Santos testified that he lost consciousness after a short while.

As a result of the accident, Santos’ right shoulder was broken, his right lung was punctured, his ribs were broken, his right leg was “ripped open,” his pelvic bone was broken, and doctors had to remove his right kidney. He explained that his right shoulder, hip, and leg hurt “off and on,” and that he must urinate more frequently after the accident.

Leroy Hervy, the bus driver, testified that he did not see Santos before the accident. Hervy did not realize that the bus had come into contact with Santos until he saw, in the rear view mirror, that plaintiff was in the process of falling in the vicinity of the rear door. Hervy then heard a “little bump” coming from the right side of the bus as he was turning onto Irving Park Road. Hervy stopped the bus and went to look at Santos, who was pinned under the bus behind the rear wheels. By the time Hervy reached plaintiff, Santos’ girlfriend was kneeling over him. She helped pull Santos out from under the bus and stood him up against an adjacent building. Hervy reentered the bus and called for an ambulance.

The trial court instructed the jury on both contributory and comparative negligence. Defendant tendered to the court two special interrogatories. The first asked, “Was there contributory negligence on the part of the plaintiff before and at the time of the occurrence which was the sole proximate cause of his injuries?” The second asked, “Was there contributory negligence on the part of John Santos immediately before and at the time of his injuries? If your answer to the preceding question is ‘Yes’, was that negligence the sole proximate cause of his injuries?” The record discloses that the trial court refused to submit to the jury both of these special interrogatories.

The jury determined that plaintiff was 60% negligent. After reducing the plaintiff’s total damages by 60%, the jury calculated that plaintiff was entitled to recover $189,483.60 in damages.

Defendant filed a post-trial motion, which the trial court denied. The CTA then filed the instant appeal.

Opinion

The CTA initially argues that the trial court improperly failed to grant its motions for a directed verdict and for judgment notwithstanding the verdict because plaintiff’s testimony was “highly equivocal and contrary to irrefutable physical facts.” The defendant maintains that plaintiff testified inconsistently about facts such as when he began to run from the doorway to flag down the bus and where he stood when he made contact with the bus.

We disagree with defendant’s position on this issue. A directed verdict or judgment notwithstanding the verdict is proper only in those cases in which all of the evidence, when viewed in the aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. Owens v. Stokoe (1986), 115 Ill. 2d 177, 184, 503 N.E.2d 251, 254; Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.

Our review of the instant record indicates that sufficient evidence exists upon which the trial court could determine that the defendant was not entitled to judgment as a matter of law. Although plaintiff testified somewhat unclearly about the events leading to the accident and the accident itself, the record also indicates that he lost consciousness for a short time after he made contact with the bus. We are hesitant to speculate about what effect plaintiff’s loss of consciousness had on his ability to recall details of the accident. However, we note that it was for the jury, as trier of fact, to decide how much weight to accord plaintiff’s testimony and the inferences to be drawn from the evidence. (St. Gemme v. Tomlin (1983), 118 Ill. App. 3d 766, 768, 455 N.E.2d 294, 296.) We therefore decline to substitute our judgment for that of the trier of fact. Moreover, the photographs which were included in the record on appeal do not conclusively support the defendant’s argument that the accident could not have possibly happened as plaintiff described. Because reasonable minds could differ on the interpretation of the record evidence, the trial court properly denied defendant’s motions for a directed verdict and for judgment notwithstanding the verdict.

Next, defendant argues that the trial court improperly failed to submit to the jury its special interrogatories. The CTA maintains that the court did not have the discretion to refuse to submit to the jury these interrogatories since they related to a material issue of ultimate fact in the case, i.e., plaintiff’s own negligence. In response, plaintiff maintains that: (1) defendant waived this argument because, by failing to file a transcript of the jury instruction conference, defendant failed to preserve this issue on appeal; and (2) assuming that the record is sufficiently complete, the trial court properly refused to submit the special interrogatories because the jury instructions adequately instructed the jury on comparative negligence.

We agree with the defendant that the trial court erroneously failed to submit to the jury its special interrogatories.

Section 2—1108 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—1108) discusses when a special interrogatory is to be used:

“Unless the nature of the case requires otherwise, the jury shall render a general verdict. The jury may be required by the court, and must be required on request of any party, to find specially upon any material question or questions of fact submitted to the jury in writing. Special interrogatories shall be tendered, objected to, ruled upon, and submitted to the jury as in the case of instructions. Submitting or refusing to submit a question of fact to the jury may be reviewed on appeal, as a ruling on a question of law. When the special finding of fact is inconsistent with the general verdict, the former controls the latter and the court may enter judgment accordingly.”

A special interrogatory is not designed to instruct the jury. Rather, it requires the jury to determine one or more specific issues of ultimate fact and serves as a check upon the jury’s deliberation. (Noel v. Jones (1988), 177 Ill. App. 3d 773, 783, 532 N.E.2d 1051, 1056; Saldana v. Wirtz Cartage Co. (1977), 55 Ill. App. 3d 440, 443, 370 N.E.2d 1131, 1134, rev’d on other grounds (1978), 74 Ill. 2d 379, 385 N.E.2d 664.) When a special interrogatory is in proper form and relates to a material issue of ultimate fact, the trial court must submit it to the jury (Shaheed v. Chicago Transit Authority (1985), 137 Ill. App. 3d 352, 362, 484 N.E.2d 542, 550), even if the subject matter of the special interrogatory is covered by an instruction. (Noel v. Jones, 177 Ill. App. 3d at 783, 532 N.E.2d at 1056.) It should contain a single direct question; should not be repetitive, misleading, confusing, or ambiguous; and should use the same language or terms as the instructions contain. Zois v. Piniarski (1982), 107 Ill. App. 3d 651, 652-53, 437 N.E.2d 1251, 1252.

In the case at bar, defendant asked the trial court to submit to the jury special interrogatories relating to plaintiff’s contributory negligence. The interrogatories related to a material issue of ultimate fact in the case — plaintiff’s own negligence and its role in his injuries. Their wording was not confusing, misleading, or ambiguous, and they were couched in the same terms as were the instructions. Thus, the interrogatories were in proper form and should have been submitted to the jury. (See Patterson v. Spinney Run Farms Corp. (1974), 19 Ill. App. 3d 1013, 313 N.E.2d 189 (special interrogatory which focused on whether plaintiff, before and after the occurrence, was guilty of negligence which proximately caused or contributed to cause his injury was in proper form); see also Bernardi v. Chicago Steel Container Corp. (1989), 187 Ill. App. 3d 1010, 1021, 534 N.E.2d 1004, 1012; Mudd v. Goldblatt Brothers, Inc. (1983), 118 Ill. App. 3d 431, 437, 454 N.E.2d 754, 759 (when there is a factual question about plaintiff’s conduct and its causal relationship to the injury in a negligence case, a special interrogatory on the question of contributory negligence is proper).) Therefore, because the instant interrogatories related to a material issue of ultimate fact, and were in proper form, we necessarily conclude that the trial court erroneously failed to submit them to the jury.

In support of his position, plaintiff argues that the trial court was not required to submit these interrogatories to the jury because the court had already adequately instructed it on comparative negligence. We reject this argument. As already noted, a special interrogatory is not designed to instruct the jury, but, rather, to test a general verdict against the jury’s conclusions concerning the ultimate controlling facts. See Norton v. Wilbur Waggoner Equipment Rental & Excavating Co. (1980), 82 Ill. App. 3d 727, 735, 403 N.E.2d 108, 114.

Thus, because section 2—1108 mandates that the jury be required to find specially upon any material question of fact submitted to it in writing, the trial court erroneously refused to give defendant’s special interrogatories as section 2—1108 required. We therefore reverse the judgment of the circuit court of Cook County and remand this cause for a new trial. Ott v. Burlington Northern R.R. Co. (1986), 140 Ill. App. 3d 277, 282, 488 N.E.2d 606, 609.

Reversed and remanded for a new trial.

JIGANTI and JOHNSON, JJ., concur.