text:
    SHIRLEY M. WEST, Plaintiff-Appellant, v. NORTHEASTERN ILLINOIS RAILROAD CORPORATION, Defendant-Appellee.
    First District (1st Division)
    No. 1—88—0856
    Opinion filed February 27, 1989.

      Walter M. Ketchum, Ltd., of Chicago (Paul E. Peldyak, of counsel), for appellant.
    JoAnn C. Pelka, of Northeast Illinois Regional Commuter Railroad Corporation, of Chicago, for appellee.
   JUSTICE QUINLAN

delivered the opinion of the court:

Plaintiff, Shirley West, sued the defendant, Northeast Illinois Regional Commuter Railroad Corporation, alleging that it was negligent in operating and maintaining its train station, and that as a result of defendant’s negligence, she was injured. The circuit court dismissed plaintiff’s claim for failure to comply with the one-year notice provision set forth in the Local Governmental and Governmental Employees Tort Immunity Act (111. Rev. Stat. 1983, ch. 85, par. 8— 102). Plaintiff now appeals the dismissal of her action to this court.

The lengthy procedural history of this case is as follows. Plaintiff was allegedly injured on September 28, 1982, as she was walking in the Rock Island train station. On May 17, 1984, plaintiff filed a complaint at law, naming as defendants the Northeastern Illinois Railroad Corporation, or the Rock Island Railroad Corporation, or the Northern Illinois Rail Corporation. On July 6, 1984, defendant Northeast Illinois Regional Commuter Railroad Corporation (NIRC) filed a motion to dismiss based on plaintiff’s failure to serve it with notice of her personal injury, as required by the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (111. Rev. Stat. 1983, ch. 85, par. 8 — 102). This act provides, in part:

“Within 1 year from the date that the injury or cause of action *** was received or accrued, any person who is about to commence any civil action for damages on account of such injury against a local public entity *** must serve *** a written notice on [that entity’s] Secretary or Clerk ***.” (111. Rev. Stat. 1983, ch. 85, par. 8 — 102.)

If a party fails to comply with the foregoing notice provision, that party’s cause of action is dismissed and he is barred from further suit. 111. Rev. Stat. 1983, ch. 85, par. 8 — 103.

Defendant’s motion to dismiss stated that it was a public corporation, that plaintiff failed to serve the requisite notice within one year of the personal injury, and that plaintiff’s lawsuit was filed more than one year after the date of her injury. Defendant’s motion to dismiss also said that its true and correct name was the Northeast Illinois Regional Commuter Railroad Corporation, not the Northeastern Illinois Railroad Corporation. Along with its motion to dismiss, defendant filed the affidavit of its secretary, Edmund Wolf. In his affidavit, Mr. Wolf said that he was responsible for receiving notice of personal injury pursuant to the Tort Immunity Act and he had never received any notice of personal injury from plaintiff or her agent relative to the alleged occurrence on September 28,1982.

The circuit court of Cook County granted defendant’s motion to dismiss on August 9, 1984, following which plaintiff filed a motion to vacate the dismissal. The circuit court subsequently granted the motion to vacate and reinstated the case.

Plaintiff then served interrogatories on defendant NIRC. In its answers to plaintiff’s interrogatories, NIRC said that its correct name was Northeast Illinois Regional Commuter Railroad Corporation and that it had been formed in 1980 by the Regional Transportation Authority. NIRC said that it has also done business since 1982 under the name the “Northeast Illinois Railroad Corporation.” Thereafter, in lieu of an answer, NIRC again filed a motion to dismiss based on plaintiff’s failure to comply with the Tort Immunity Act’s notice provision. The circuit court held a hearing on NIRC’s motion to dismiss. The court did not rule on NIRC’s motion, but instead granted plaintiff leave to amend her complaint.

Accordingly, plaintiff filed an amended two-count complaint at law for personal injury. She alleged in count I that NIRC had a duty to maintain the railroad station where she was injured, that it breached that duty due to its negligence, and that she was injured as a direct result of that breach. Plaintiff alleged that NIRC held itself out to the public and to plaintiff as the Northeastern Illinois Railroad Corporation and the Northern Illinois Rail Corporation. Plaintiff also asked that the Tort Immunity Act’s one-year notice requirement be waived and that NIRC be estopped from asserting the notice requirement as an affirmative defense.

Along with her amended complaint, plaintiff filed her own affidavit. In her affidavit, plaintiff said that she did not know until 1984 that the Rock Island Railroad Corporation did not own or operate the railroad station where she was injured. She said that she never saw any sign or ticket or other document indicating that she was on anything but the Rock Island Railroad. Further, plaintiff said that she received a letter in 1984 from the Northeast Illinois Railroad Corporation which led her to believe it was involved with her accident in 1982 and that this letter did not indicate that NIRC was a public entity. Finally, plaintiff said that she did not know or have reason to know until 1984 that the railroad was operated by a public entity.

NIRC then filed an answer to plaintiff’s amended complaint. NIRC denied that the notice provision should be waived in this case or that it was estopped from asserting the provision. NIRC again raised the affirmative defense of failure to serve notice within one year of injury as required by the Tort Immunity Act. 111. Rev. Stat. 1983, ch. 85, par. 8 — 102.

After filing its answer, NIRC filed another motion to dismiss, basing its motion once again on plaintiff’s failure to serve it with notice of injury. Plaintiff filed a response to NIRC’s motion, and NIRC then filed a reply brief addressing plaintiff’s response. NIRC also attached three affidavits to its reply brief. Two affidavits were from claims specialists employed by NIRC since 1982. One claims specialist, John Gasinski, said that he spoke with plaintiff on the telephone at least one month prior to the expiration of the one-year notice period and identified himself as a claims agent for the “Northeast Illinois Regional Commuter Railroad Corporation” and also gave plaintiff NIRC’s telephone number. The other claims specialist, Gus Liebig, said that he telephoned plaintiff in October 1982, one month after her alleged accident, and identified himself as a claims agent for the Northeast Illinois Regional Commuter Railroad Corporation and gave plaintiff NIRC’s telephone number.

Ronald Ward’s affidavit said that he was the director of ticket services for NIRC and that he had personally inspected the records of all tickets issued in 1982, particularly those tickets issued during the week of plaintiff’s alleged injury. He said that all tickets “issued, printed, distributed, and/or sold on all Rock Island District Commuter trains, on which plaintiff alleged she was a passenger,” were printed, distributed and sold solely by NIRC. Further, all tickets displayed the NIRC logo or name or both the logo and name on the front of the ticket.

A hearing on NIRC’s motion to dismiss was held on February 11, 1988. The circuit court granted NIRC’s motion, as a motion for summary judgment, and dismissed NIRC as a defendant in the case. Plaintiff subsequently filed her appeal of the summary judgment in favor of NIRC to this court, and also requested this court to allow her to supplement the record with pages from the 1982, 1983 and 1984 Chicago white pages directory, and with information from the Illinois Secretary of State, none of which was before the trial court. We denied plaintiff’s request to supplement the record.

On appeal, plaintiff contends that summary judgment was erroneously entered in favor of NIRC. Plaintiff alleges that material questions of fact remain concerning whether NIRC should have been equitably estopped from raising statutory notice as an affirmative defense and whether NIRC waived its right to raise the affirmative defense.

The purpose of summary judgment is to determine whether a question of fact exists, not to try a question of fact. (Addison v. Whittenberg (1988), 124 Ill. 2d 287, 294, 529 N.E.2d 522, 555; Bunch v. Williams (1988), 175 Ill. App. 3d 582, 585, 529 N.E.2d 1123, 1125.) A court will grant a motion for summary judgment only if the pleadings, depositions, affidavits, and admissions on file, viewed strictly against the movant, show that there is no genuine issue of material fact and the movant is entitled to summary judgment as a matter of law. (Addison, 124 Ill. 2d at 294, 529 N.E.2d at 555; Wald v. Chicago Shippers Association (1988), 175 Ill. App. 3d 607, 623, 529 N.E.2d 1138, 1149.) On appeal, a reviewing court will reverse an order granting summary judgment only if it determines that there is a genuine issue of material fact. Addison, 124 Ill. 2d at 294, 529 N.E.2d at 555.

In this case, plaintiff first claims that a genuine issue of material fact exists concerning whether defendant should have been equitably estopped from raising as an affirmative defense the fact that plaintiff failed to serve it with notice of her injury. Specifically, plaintiff argues that defendant concealed a material fact, i.e., its true name; she could not readily ascertain defendant’s true name because it was “entirely different from” its correct name; and she relied to her detriment on defendant’s misrepresentations regarding its true name.

Conversely, defendant argues that summary judgment in its favor should be affirmed. Defendant contends that plaintiff waived any issue concerning its two names because she never raised the issue in the trial court and, in her pleadings, plaintiff never said that she relied upon the wrong name or was misled by defendant. In addition, defendant claims that it would be prejudiced if this court reviewed the issue of the two names for the first time on appeal. Finally, defendant argues that plaintiff’s affidavit actually contradicts her theory of estoppel because, in her affidavit, plaintiff asserted that she did not even learn that defendant used two names until after the notice period had expired.

In support of her estoppel argument, plaintiff cites a Second District Illinois Appellate Court case, Kievman v. Edward Hospital (1985), 135 Ill. App. 3d 442, 481 N.E.2d 909. In Kievman, the second district held that the defendant, a hospital which was owned and operated by a municipal corporation, was estopped from raising the fact that the plaintiff did not give statutory notice as an affirmative defense, because the court there found that the defendant had deliberately concealed its status as a municipal corporation and thus misled the plaintiff. (Kievman, 135 Ill. App. 3d at 447, 481 N.E.2d at 913.) The court specifically found that the defendant knew that “its identification policy [had] previously caused confusion on the part of parties seeking to bring an action against it” and had raised this same defense under similar circumstances in another case. (Kievman, 135 Ill. App. 3d at 446, 481 N.E.2d at 912.) Plaintiff here argues that there is a material question of fact in this case because NIRC, like the defendant in Kievman, concealed its true and correct name in order to hinder plaintiff’s attempt to bring an action against it.

We disagree. Although it is true that a local public entity-may be estopped in certain cases from raising the Tort Immunity Act’s notice period as a defense (Shortt v. City of Chicago (1987), 160 Ill. App. 3d 933, 936, 514 N.E.2d 3, 5), we find that plaintiff here has failed to provide any facts in support of her estoppel claim. In order to successfully raise an estoppel claim, a party must prove by clear and unequivocal evidence that he relied on the other party’s acts or representations and that he had no knowledge or convenient means of discovering the true facts. (Wald, 175 Ill. App. 3d at 622, 529 N.E.2d at 1148.) In the present case, plaintiff failed to allege or offer any evidence that she relied on any alleged misrepresentations by the defendant or that she had no convenient means of discovering the true facts.

Plaintiff merely contends that the misrepresentation here is that NIRC concealed its full name from her and concealed the fact that it was a public corporation. However, plaintiff never alleged or offered any facts to show that her failure to file notice of her injury was due to her reliance on NIRC’s alleged misrepresentations, nor did she allege any facts to show that NIRC had in any way misled her regarding its true name or its identity as a public entity. In fact, from the time plaintiff filed her lawsuit, defendant admitted its true name and admitted that it was a public corporation.

Further, plaintiff did not provide any facts to show that she had previously attempted to ascertain defendant’s true name and whether it was a public corporation, or that she had no convenient means of discovering these facts. Finally, plaintiff admitted in her affidavit that she did not learn until 1984 that NIRC, rather than the Rock Island Railroad Corporation, owned the railroad station where she was allegedly injured, but she did not allege that this was due to any misrepresentations or actions on defendant’s part. Although a plaintiff is not required to prove her case at summary judgment, she must present some factual basis which would arguably entitle her to judgment, Langer v. Becker (1988), 176 Ill. App. 3d 745, 749, 531 N.E.2d 830, 832.

Accordingly, plaintiff has failed to raise a genuine issue of material fact concerning whether defendant should have been equitably estopped from raising its affirmative defense. Even viewing the pleadings, depositions, affidavits and admissions on file strictly against defendant NIRC, as we must (Addison, 124 Ill. 2d at 294, 529 N.E.2d at 555; Bunch, 175 Ill. App. 3d at 585-86, 529 N.E.2d at 1125), it is clear that the trial court correctly ruled that NIRC was entitled to summary judgment in its favor as a matter of law.

Plaintiff’s second issue on appeal is that summary judgment was erroneously granted in favor of defendant because defendant waived the affirmative defense of failure to serve it with notice. Plaintiff claims that there is an issue of material fact concerning this waiver because one of defendant’s employees sent her a letter dated March 26, 1984, regarding settlement of her claim. Plaintiff claims that by continuing to negotiate, defendant waived its right to raise the defense of failure to serve it with notice. Defendant, on the other hand, contends that it is plaintiff who waived her right to raise this issue because she never raised it in the trial court and because defendant would now be prejudiced if this court considered the issue.

We find plaintiff’s argument regarding waiver to be without merit. In this case, the alleged negotiation consisted of only one letter, dated March 1984, which was after the statutory notice period had expired. In Shortt v. City of Chicago (1987), 160 Ill. App. 3d 933, 514 N.E.2d 3, this court held that negotiation occurring after the Tort Immunity Act’s notice period had expired did not prevent a public defendant from raising the plaintiff’s failure to serve it with notice of injury as an affirmative defense. (Shortt, 160 Ill. App. 3d at 936, 514 N.E.2d at 5.) The plaintiff in Shortt argued that the defendants should be estopped from raising a statutory notice defense because defendants had engaged in extensive discovery and negotiation with the plaintiff for five years. (Shortt, 160 Ill. App. 3d at 936, 514 N.E.2d at 5.) This court disagreed, finding that the negotiation took place after the statutory notice period had expired and that, therefore, the plaintiff could not have relied on the negotiations when she failed to serve the defendant with notice. (Shortt, 160 Ill. App. 3d at 936, 514 N.E.2d at 5.) The court also held that the defendant had not waived the notice requirement, even by filing a general appearance, because the plaintiff did not file her lawsuit until the notice period had expired. Shortt, 160 Ill. App. 3d at 936, 514 N.E.2d at 5.

Likewise in this case, the notice period expired on September 28, 1983, and this alleged negotiation took place in March 1984. Accordingly, similar to Shortt, plaintiff cannot claim that she relied on this letter when she failed to file notice of the injury by September 28, 1983, or that NIRC waived its right to notice of her injury by sending the letter. We find that plaintiff has also failed to show that there was a genuine issue of material fact concerning the waiver. Hence, the trial court correctly granted summary judgment in favor of defendant on this issue as well.

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

Judgment affirmed.

MANNING, P.J., and O’CONNOR, J., concur.

      defendant’s correct name is the Northeast Illinois Regional Commuter Railroad Corporation. However, when plaintiff initially filed this lawsuit, she mistakenly believed that defendant’s name was either the Northeastern Illinois Railroad Corporation or the Northern Illinois Rail Corporation. Accordingly, the title of this case does not refer to defendant by its correct name.

      Effective November 25, 1986, this act was amended to eliminate the one-year notice requirement and, instead, the statute now provides that a civil action against a local public entity must be commenced within one year from the date of injury. (111. Rev. Stat. 1987, ch. 85, par. 8 — 101.) The former statute, which was in effect at the time of this lawsuit, provided that a party had two years from the date of the injury to commence a civil action, as long as the party had served the defendant with notice of the injury within one year of the date of injury. 111. Rev. Stat. 1983, ch. 85, pars. 8-101, 8-102.

      Count II will not be discussed in this opinion since it was directed against the Rock Island Railroad Corporation and thus is not relevant to this appeal.

       On appeal, NIRC moved to strike those portions of plaintiff’s brief which referred to documents contained in the supplemental record, since this court had denied plaintiff’s request to supplement the record. Plaintiff responded that NIRC’s request to strike should be denied because NIRC did not file a separate motion with this court, but instead made the motion only in its brief on appeal. We need not, however, nor do we, decide here whether NIRC’s motion to strike should be denied on the grounds that it was not filed as a separate motion. Here, plaintiff never offered the disputed documents to the trial court, nor did she offer any reason why the documents were never presented, and the law in Illinois is that a party cannot raise for the first time on appeal an issue not presented to or considered by the trial court. (Reed v. Bascon (1988), 124 Ill. 2d 386, 394, 530 N.E.2d 417, 421; Peters & Fulk Realtors, Inc. v. Shah (1986), 140 Ill. App. 3d 301, 307, 488 N.E.2d 635, 639.) Thus, even absent defendant’s motion, we would not consider these documents in deciding this case on appeal. Since we do not consider these portions of plaintiff’s brief in our discussion, it is unnecessary to decide this issue.


source: Caselaw Access Project

author: JUSTICE SCARIANO

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RANDY POWELL, Defendant-Appellant.
    First District (2nd Division)
    No. 1—86—2526
    Opinion filed February 28, 1989.
    Rehearing denied April 4, 1989.

      Michael J. Pelletier and Alan D. Goldberg, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Patricia Y. Brown, and James M. Sullivan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

Defendant was found guilty by a jury of attempt (murder), aggravated battery and armed violence, and sentenced to 25 years’ imprisonment. He appeals, raising the following issues: (1) whether he was denied his right to the effective assistance of counsel; (2) whether he was denied a fair trial by the prosecutor’s cross-examination and remarks during closing argument; (3) whether the jury was improperly instructed on attempt (murder); (4) whether the trial court erred in denying his motion for a new trial; and (5) whether the trial court erred in denying him access to the complaining witness’ mental health records.

Defendant was charged with attempt (murder), two counts of aggravated battery and armed violence against Arnold Wayne. At trial Wayne testified as follows: Defendant was a friend of Joseph Barrett, Wayne’s brother-in-law, and Wayne had known defendant for some time. Ten years prior to the occurrence which forms the subject matter of this case, defendant had insulted Wayne’s wife, Cleo, but had apologized after Wayne approached him about it. Defendant had gone to Wayne’s home three or four times since then, looking for Barrett. On one of these occasions, one month prior to the incident comprehended in the case at bar, Wayne had told defendant not to come to his home any longer.

On February 1, 1986, Wayne went to a tavern where he had alcohol, cocaine and heroin over the course of the evening. He claimed, however, not to be intoxicated. Barrett came over some time after Wayne arrived home, and shortly thereafter the doorbell rang. When Wayne’s wife used the intercom to talk to the person at the door, Wayne recognized defendant’s voice as that of the individual asking for Barrett. Barrett went to the backyard to talk to defendant, and, after five minutes, Wayne followed. He opened the door, cursed at defendant, and began walking towards him as defendant pulled out a pistol. Wayne was not armed, but he continued walking toward defendant and punched him, knocking him into a fence. At this point Barrett ran off. Wayne tried to get the gun away from defendant, but defendant bent down, took the gun between his legs and attempted to shoot Wayne. Wayne slipped and fell to the ground, and, as he lay on his back, defendant shot him four times, saying “What do you think, I’m a punk or something?” Wayne arose and tried to chase defendant, who then turned and pulled the trigger a number of times, but the gun failed to fire. Wayne stopped in front of his home and Barrett took him to the hospital.

On cross-examination, Wayne stated he did not normally use heroin and cocaine and acknowledged that he failed to tell the police about his use of drugs on the night of the incident. He also testified that he did not regularly handle guns, but that he knew the difference between types of guns.

Dr. Khaja testified that he was the physician on duty in the emergency room when Wayne was brought in. Wayne had suffered a gunshot wound in the right lower back, which passed through his body and exited just below the navel, and three gunshot wounds to his right arm just below the elbow. Khaja also testified that Wayne was coherent and that a blood sample indicated that Wayne had engaged in social drinking but was not medically intoxicated. Officer Charles Popielarz testified that he spoke with Wayne in the hospital emergency room and that he appeared to be lucid.

Detective John Paladino testified that he arrested defendant at his home on the night of February 1, 1986. Defendant’s mother admitted Paladino and told him that defendant was in the basement and, as he descended the stairs, he saw defendant run from a utility room into a bedroom. Paladino ran after defendant and saw him place a handgun under a mattress of a bed, which Paladino then recovered.

Detective Harold Huffman testified that he interviewed defendant in the early morning hours of February 2, 1986. Defendant denied being anywhere near Wayne’s home on the previous evening and denied shooting a gun in the last three months. Huffman then had a gun residue test performed on defendant’s hands, which indicated that he had recently handled a gun or had been in close proximity to one when it was discharged.

Defendant testified that he had previously purchased cocaine from both Wayne and Barrett. When he went to Wayne’s home on February 1, 1986, defendant was looking for Barrett. Defendant was talking with Barrett in the backyard when Wayne rushed out of the house carrying a shiny object, which appeared to be a gun, in his right hand. Wayne stumbled and staggered, and appeared to be drunk, and yelled something like “I thought I told you that I don’t want you by my backyard.” Wayne hit defendant on the head with the gun and, as he attempted to do so again, defendant blocked the shot with his hand, Wayne lost control of the gun and dropped it. Both men reached for the gun, defendant grabbed the barrel while Wayne grabbed the trigger, and three or four shots went off while they were struggling. When defendant realized Wayne had been shot, he ran off toward the front of the house while Wayne shot at him. Two or three hours later, four detectives came to defendant’s home and arrested him. He testified that he did not have a gun in his possession when arrested.

The defense also called Jezelle Perdue, defendant’s fiancee, to testify about a conversation she had with Cleo Wayne about a month and a half after the occurrence. Following an objection by the State, the court called a sidebar and asked for an offer of proof. Defense counsel indicated that Perdue would testify that Cleo Wayne told her that at the time of the incident Arnold Wayne had come out of the house with a pistol and had hit defendant on the head. The court excluded the testimony on the ground that the defense had failed to lay a foundation for such impeachment during cross-examination of Cleo Wayne.

Defendant appeals from the jury verdict convicting him on all counts.

Opinion

Defendant first argues that he was denied his right to the effective assistance of counsel, contending that his trial counsel was incompetent. The first example defendant cites is his counsel’s interrogating him with reference to his previous convictions for attempt (murder) and robbery, in violation of a ruling on defendant’s motion in limine that the jury should not be made aware of the names of these offenses because of their potential prejudicial effect. (People v. Mitchell (1981), 98 Ill. App. 3d 398, 424 N.E.2d 658.) Defense counsel asked the following:

“Q. Are you presently on parole?
A. Yes, I am on parole.
Q. For what?
A. For attempt murder and armed robbery.
Q. How long ago were these convictions?
A. Seven years ago — eight years ago.”

In ruling on the motion in limine the court stated that it would permit the State to show that defendant had three felony convictions, but would not allow it to name the crimes. The court shortly thereafter modified this ruling and stated further that if the defense introduced evidence of prior acts of violence by Wayne, then, in rebuttal, the State would be permitted to inform the jury of the names of defendant’s prior offenses. Defendant contends that the defense did not introduce evidence of Wayne’s prior acts of violence, and, therefore, by asking defendant about his parole status, defense counsel gave the State the opportunity to ask about defendant’s previous convictions.

In addition, the State introduced certified copies of his convictions which indicated that defendant had been convicted of armed robbery, when in fact he had not been sentenced on that charge, and it therefore did not constitute a conviction. (People v. Lashmett (1984), 126 Ill. App. 3d 340, 467 N.E.2d 356; People v. Lieberman (1982), 107 Ill. App. 3d 949, 438 N.E.2d 516.) Defendant maintains that his counsel was incompetent in not requesting that the armed robbery be deleted from the certified copy of conviction.

Defendant also argues that his counsel was deficient in failing to lay the foundation for Jezelle Perdue’s testimony impeaching Cleo Wayne and in failing to object to the prosecutor’s improper cross-examination and closing argument. Defendant further claims that his counsel was inept in his attempt to present evidence of Wayne’s reputation:

“Q. How long have you lived in the neighborhood around 92nd Street?
A. Thirty years.
Q. That is the same neighborhood Arnold Wayne lives in?
A. Yes, it is.
Q. Do you know people in that neighborhood?
A. Yes.
Q. What do these people in the neighborhood say about Arnold Wayne?
[PROSECUTOR]: Objection.
THE COURT: The form of the question is bad. I know what you are trying to do, and you may do it, but not in the manner you are doing it. If you want, I will discuss it with you.
[DEFENSE COUNSEL]: People in the neighborhood say anything about Arnold Wayne?
[PROSECUTOR]: Objection.
THE COURT: I’ll sustain it. Why don’t you come over here a moment. We don’t need the Court Reporter.
(Whereupon discussions were held between the Court and Counsel out of the hearing of the Court Reporter and the jury.)
[DEFENSE COUNSEL]: Do you know what Mr. Wayne’s reputation in the community is?
A. Yes. He’s a cocaine supplier for the neighborhood.
[PROSECUTOR]: Objection, your Honor.
THE COURT: Objection will be sustained. It will be stricken, and the jury will be instructed to disregard it. I specifically told you [that] you could ask something different and this is improper. And I would suggest you don’t do it again.
[DEFENSE COUNSEL]: I’m sorry, your Honor.
THE COURT: Now, it has happened on both sides, so the jury should not be influenced by volunteered negative things that people say about others which is not proper evidence. I indicated to you that you could ask a particular question. I will let you ask that question in the context in which I — no, sir, you be quiet. Go ahead and ask another question.”

Defendant contends that these errors, whether viewed individually or cumulatively, were devastating to his case and denied him his right to the effective assistance of counsel.

The State responds that defendant’s counsel was effective, and that what defendant is actually complaining about is the trial strategy his counsel chose to follow. It claims that defense counsel questioned defendant about his prior convictions because the attorney intended to put in evidence Wayne’s prior criminal convictions in order to show his aggressive tendencies, and counsel felt it would be advantageous to have defendant testify as to these crimes rather than wait for the State to bring them out. At the close of defendant’s case defense counsel attempted to introduce evidence of Wayne’s two prior felony convictions, but the judge allowed evidence of only the most recent conviction, which was for theft, ruling that an older conviction was too remote. The State also maintains that the remaining conduct of which defendant complains was not prejudicial to him because it dealt with matters collateral to proving his guilt. Essentially, the State claims that it was not prejudicial for the jury to be told of an improper armed robbery conviction in view of defendant’s criminal history. It maintains also that Perdue’s testimony, had it been allowed, would not have impacted on the result of the trial, nor would testimony of Wayne’s reputation have changed the facts of the shooting.

A defendant is entitled to competent but not perfect representation. (People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677.) In alleging that he has received ineffective assistance of counsel, a defendant must prove that counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s errors, the outcome of the proceedings would have been different. (People v. Albanese (1984), 104 Ill. 2d 504, 525, 473 N.E.2d 1246, citing Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) There is also a strong presumption that counsel’s conduct “falls within the wide range of reasonable professional assistance.” (Albanese, 104 Ill. 2d at 526, quoting Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065.) Moreover, the burden is on the defendant to prove actual incompetence resulting in prejudice to his case, and the findings of the trial court will be upheld unless manifestly against the weight of the evidence. (People v. Miller (1986), 141 Ill. App. 3d 423.) In resolving a claim of ineffectiveness, a court must evaluate the challenged conduct from counsel’s perspective at the time it occurred; in other words, a court must consider “the totality of the circumstances.” Strickland v. Washington, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.

A review of the record in this case shows that defense counsel’s representation did not fall below an objective standard of reasonableness, especially in light of the fact that the evidence adduced herein is not by any standard closely balanced. The State presented a number of witnesses, whom the jury found to be credible, to testify against defendant and to contradict his testimony. Given the strong evidence against him, it is not reasonably probable that the jury would have acquitted defendant had Perdue testified or had the jury not been told that defendant had a conviction for armed robbery. Furthermore, evidence of Wayne’s prior conviction was admitted by the defense; therefore, his failure to present evidence as to Wayne’s reputation and defense counsel’s questioning of defendant regarding his prior convictions, evidence which the State had been given advance sanction by the court to present, did not prejudice defendant. Because defendant has not overcome the presumption that his attorney provided “reasonable professional assistance,” nor shown that the outcome of his trial would have been different had counsel conducted the defense of his client differently, we hold that defendant was not denied his right to the effective assistance of counsel.

Defendant next argues that he was denied a fair trial by the prosecutor’s cross-examination and his closing and rebuttal arguments. Defendant testified that Wayne was a drug dealer. On cross-examination, the State asked the following:

“Q. Mr. Wayne has never been arrested for dope; has he?
A. I’m not sure. Some people don’t get caught.
Q. That’s correct. But you did; didn’t you?
A. Well—
[DEFENSE COUNSEL]: Objection, your Honor.
THE COURT: Sustained.”

Defendant further argues that prior to trial the State tendered to the defense Wayne’s record of arrests; so, at the time the State asked this question it was well aware that Wayne had a record of six narcotics arrests. During closing arguments, the State made the following remarks:

“Mr. Arnold Wayne, a married man, a homeowner, admittedly convicted of theft eight or nine years ago, now employed as a salesman. In shifting the guilt, shifting the blame, he becomes a cocaine dealer. That is ridiculous. Do you think if he was a cocaine dealer he wouldn’t have come to the attention of the police and you would have heard about it from the defense. That is silly. It is an attempt to dilute the impact of this testimony, make Powell [sic] dirty, make the police dirty, make everybody dirty but who is on trial, and that is Randy Powell.”

Defendant asserts that these statements conveyed to the jury a false impression of Wayne (People v. Ellison (1980), 89 Ill. App. 3d 1, 411 N.E.2d 350) and also led the jury to infer that defendant was lying about his purchases of cocaine from Wayne. He also claims that the State improperly attempted to shift its burden to the defense by stating that if Wayne had come to the attention of the police, the jurors “would have heard about it from the defense.” (People v. Lopez (1987), 152 Ill. App. 3d 667, 504 N.E.2d 862; People v. Giangrande (1981), 101 Ill. App. 3d 397, 428 N.E.2d 503.) Defendant further avers that the State also attempted to shift the burden to produce evidence to him in its rebuttal argument:

“Now, counsel has also raised an issue, and the defendant has testified that there’s [sic] two bullets in the back porch of the victim’s house. Ladies and gentlemen, this is totally incredible. This occurred in February of this year. Defense counsel has the same right to subpoena, and he has the same right to investigate as we do. Believe me, if there were two bullets in the back porch of Cleo and Arnold Wayne’s, you would have pictures of it. You would have those bullets. You would probably even have the back porch in here, but he wants you to believe that somebody is covering something up. It is pure smoke, pure, pure smoke. Counsel and his client are throwing up smoke, let’s get off the main issue here of what really happened, and those two bullets are nothing but smoke. Believe me, if there was any physical evidence to support that, it would be in this courtroom.”

Defendant goes on to contend that it was improper for the prosecutor to use the exhortation “believe me,” as it constituted an improper expression of personal opinion (see People v. Bitakis (1972), 8 Ill. App. 3d 103, 289 N.E.2d 256), and that the phrase “throwing up smoke” was an improper accusation of trickery. People v. Wilson (1983), 120 Ill. App. 3d 950, 458 N.E.2d 1081; People v. Young (1981), 97 Ill. App. 3d 319, 422 N.E.2d 1158.

Defendant also argues that the State denied him a fair trial by arguing in its rebuttal argument that in order to believe the defense the jury had to find all the State’s witnesses were lying. (People v. Crossno (1981), 93 Ill. App. 3d 808, 417 N.E.2d 827; People v. Cole (1980), 80 Ill. App. 3d 1105, 400 N.E.2d 931.) The prosecutor addressed the jury, in pertinent part, as follows:

“Now, the whole gist of the defendant's case is this plot to get the defendant.
* * *
Let’s go on with more of the big plot. We have the wife, Cleo Wayne. She is lying, too.
* * *
Then we have doctor Khaja. He is lying as to the number of bullets *** [and as to] the blood alcohol level.
* * *
Then we get to Detective Paladino. He is another guy in this big plot to get the defendant.
* * *
Detective Huffman *** is another person that [supposedly] is lying.
* * *
Miss Goliak, the scientist from the Crime Lab *** [supposedly] lied.
* * *
Now I submit to you, ladies and gentlemen of the jury, you heard all these people testify. What would all these people’s motives be to lie? What reason would they have to lie?”

Defendant admits that his counsel failed to object to the improper comments made by the State during closing and rebuttal arguments, but argues that this court should treat the alleged prosecutorial misconduct in this case as plain error.

The State responds that defendant has waived these alleged errors by failing to make an objection at the appropriate time and by failing to specify them in his post-trial motion. In that motion defendant alleged:

“12. That the Assistant State’s Attorney made prejudicial and inflammatory statements in closing argument designed to arouse the prejudices and passions of the jury, thereby prejudicing the defendant’s right to a fair trial.”

Such a general allegation does not preserve the issue for review. (People v. Camp (1984), 128 Ill. App. 3d 223, 470 N.E.2d 540; People v. Thomas (1983), 116 Ill. App. 3d 216, 452 N.E.2d 77.) The State also urges this court not to treat the alleged prosecutorial misconduct as plain error, because the evidence adduced at trial, and the logical inferences to be drawn therefrom, led inescapably to the conclusion that the defendant was guilty. People v. Camp (1984), 128 Ill. App. 3d 223, 470 N.E.2d 540.

This court may elect to review the asserted errors under the plain-error rule (107 Ill. 2d R. 615(a)) after a finding that the evidence is closely balanced and that the error has prejudiced substantial rights of defendant. (People v. Thomas (1983), 116 Ill. App. 3d 216, 452 N.E.2d 77.) Defendant claims that the trial was a “credibility contest” between defendant and Wayne, and thus, the case was closely balanced. But this contention ignores the testimony of Detective Paladino, who found the gun under defendant’s mattress, and the evidence that the gunshot residue test indicated that defendant had recently handled a firearm or had been in close proximity to it when a firearm was discharged. It also glosses over the testimony of Detective Huffman, to whom defendant denied on the morning after his admitted altercation with Wayne that he had been anywhere near Wayne’s home on the previous evening. Moreover, defendant failed to report the shooting to the police, a fact which further attenuates his version of the events in question. Although we do not approve of the tactics used by the prosecutor, we do not find that the evidence produced in this case is so closely balanced as to warrant the application of the plain-error rule; we thus decline to sustain defendant’s position on these issues.

Defendant next argues that the State improperly cross-examined defendant about a charge for which he had been acquitted.

“Q. So in that time period, you had nothing whatsoever to do with guns?
A. No.
Q. If anybody said anything different, that would be a lie; right?
A. Right.
Q. You never even had one in your hand?
A. No.
Q. Do you recall meeting an Officer Roberts of the Mass Transit Unit of the Chicago Police Department?
A. Yes.
Q. On December 19,1985?
A. Yes, I was arrested.
Q. And you had a gun when you were arrested; didn’t you?
A. No, I had — they said I had a gun.
Q. They said?
A. Officer Roberts cannot prove I had a gun in court. I just went to court and beat the case.
Q. So you didn’t get caught with it. The gun went away. [DEFENSE COUNSEL]: Objection, your Honor.
THE COURT: Just a moment. There is an objection. It will be sustained. I would suggest you don’t go into questioning on this issue anymore.”

Later in the cross-examination of defendant, the prosecutor asked:

“Q. Mr. Powell, were you not convicted in New York State on a charge of attempt murder?
[DEFENSE COUNSEL]: Objection, your Honor.
THE COURT: Again, unless the State is prepared to prove it, I will sustain the objection.”

Defendant contends that the State never offered proof of the New York conviction or that he possessed a gun on December 19, 1985, and that, therefore, the prosecutor impermissibly availed himself of impeachment by means of unsupported insinuations. People v. Nuccio (1969), 43 Ill. 2d 375, 253 N.E.2d 353.

In confessing and avoiding, the State argues that the prejudicial impact of allegedly improper questions is mitigated when defense counsel properly objects and the trial court correctly sustains the objection with the admonition that the offensive question be stricken, as was done here. (People v. Boyd (1980), 88 Ill. App. 3d 825, 410 N.E.2d 931, cert. denied (1981), 454 U.S. 1080, 70 L. Ed. 2d 613, 102 S. Ct. 633.) Moreover, the State posits, the improper questions were not material factors in defendant’s conviction and therefore are not a basis for reversal. (People v. Witherspoon (1975), 33 Ill. App. 3d 12, 337 N.E.2d 454.) Questioning concerning the alleged New York conviction, the State adds, was not prejudicial, because evidence had already been admitted as to defendant’s other convictions. See People v. Harlan (1979), 75 Ill. App. 3d 168, 393 N.E.2d 1203.

The State’s questioning was, as we have already noted, admittedly improper, but we do not believe that it was a material factor in defendant’s conviction. A review of the record indicates that evidence of defendant’s guilt was considerably strong; thus, the prosecutor’s errors do not warrant reversal of the judgment in this case.

Defendant next contends that the jury was improperly instructed on attempt (murder). At trial, the following instructions were given:

“A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force.
However, a person is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself.” Illinois Pattern Jury Instructions, Criminal, No. 24-25.06 (2d ed. 1981) (hereinafter IPI Criminal 2d).
“A person commits the offense of attempt when he, without lawful justification with intent to commit the offense of murder, does any act which constitutes a substantial step toward the commission of the offense of murder.” See IPI Criminal 2d No. 6.05.
“To sustain the charge of attempt, the State must prove the following propositions:
First: That the defendant performed an act which constituted a substantial step toward the commission of the offense of murder; and
Second: That the defendant did so with intent to commit the offense of murder; and
Third: That the defendant was not justified in using the force which he used.” See IPI Criminal 2d No. 6.07.

Defendant argues that even if his belief that he was justified in using force was unreasonable, he still could not be convicted of attempt (murder), and that, accordingly, the jury was instructed improperly when it was told that he had to have a reasonable belief that the use of force was justified. In support of his argument defendant relies on People v. Reagan (1983), 99 Ill. 2d 238, 457 N.E.2d 1260. In that case, Reagan was charged with three counts of attempt (murder) and three counts of armed violence, but the jury convicted him on three counts of attempt (voluntary manslaughter) and three counts of armed violence. The issue before the court was whether there is such a crime as attempt (voluntary manslaughter) based on an imperfect self-defense. In holding that there is not, the court stated:

“The requirement of the attempt statute is not that there be an intent to kill, but that there be an intent to kill without lawful justification. If, as suggested by the People, defendant at the time of the shooting believed the circumstances to be such that if they existed would justify the killing, then there was no intent to commit an offense.
* * *
*** To commit an attempted voluntary manslaughter *** [t]he defendant would have to specifically intend to kill with an unreasonable belief in the need to use deadly force in self-defense. As the State concedes, it is impossible to intend an unreasonable belief. If a defendant intended to kill with the knowledge that such action was unwarranted, he has intended to kill without lawful justification and could be prosecuted for attempted murder. In the case at bar, the defendant intended to defend himself [ ] [and] [although his belief in the need to defend himself or in the need to use deadly force was unreasonable, his intent was not to commit a crime.” (99 111. 2d at 240.)

Defendant argues that because an unreasonable belief in the need for the use of force would reduce a murder charge to voluntary manslaughter (People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141), it should also reduce attempt (murder) to attempt (voluntary manslaughter). He further contends that since the Reagan court held that there is no offense of attempt (voluntary manslaughter), he cannot be convicted of attempting to murder Wayne.

The State responds that defendant did not object to the instructions as given, nor did he raise an objection in his post-trial motion, and he therefore has waived the issue on appeal. (People v. Berry (1984), 99 Ill. 2d 499, 460 N.E.2d 742; People v. Huckstead (1982), 91 Ill. 2d 536, 440 N.E.2d 1248.) It further answers that the plain-error exception to the waiver rule, provided for in Rule 451(c) (107 Ill. 2d R. 451(c)), is not appropriate here for the reason that its use is restricted to the correction of “grave errors” or to situations where the case is close factually and fundamental fairness requires that the jury be properly instructed. People v. Huckstead, 91 Ill. 2d at 544.

Assuming arguendo that defendant has not waived this issue, we find his argument to be without merit. The legislature defines conduct constituting a crime (People v. Taylor (1984), 102 Ill. 2d 201, 205, 464 N.E.2d 1059; People v. Williams (1977), 66 Ill. 2d 179, 186, 361 N.E.2d 1110; Ill. Rev. Stat. 1987, ch. 38, par. 1 — 3), and it has quite clearly chosen not to recognize the crime of attempt (voluntary manslaughter). The legislature has not included in its definition of justification (111. Rev. Stat. 1987, ch. 38, par. 7 — 1) an unreasonable belief in the necessity of the use of force, nor has it provided that such a belief reduces a charge of attempt (murder), as it has done in the case of murder and voluntary manslaughter (111. Rev. Stat. 1987, ch. 38, pars. 9 — 1, 9 — 2(b)). Furthermore, the legislature has provided that “a person’s reasonable belief that his conduct does not constitute an offense is a defense” to a crime in a number of specific situations, but it has made no such provision in the case where defendant pleads an unreasonable belief. 111. Rev. Stat. 1987, ch. 38, par. 4 — 8.

Reagan is not controlling in this matter, as the holding in that case is that there is no crime of attempt (voluntary manslaughter). The Reagan court did not address the issue of whether an unreasonable belief in the necessity of the use of force justifies an attempt (murder), and defendant misreads the case, apparently relying on dicta, in order to find support for his contentions in that opinion. In Reagan, our supreme court was aware of the holding of those courts and the view of certain commentators, mentioned therein, who favor recognizing the offense of attempt (voluntary manslaughter) (99 Ill. 2d at 241), but it clearly stated that it disagreed with them; we are thus constrained by both the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 1 — 1 et seq.) and controlling case law to hold against defendant on this issue.

Defendant next argues that the trial court erred in denying his motion for a new trial based on newly discovered evidence. The jury returned its verdict in defendant’s case on July 31, 1986. On August 14, 1986, Arnold Wayne was arrested and charged with possession of 150 grams of heroin, 28 grams of cocaine, 30 grams of marijuana and four guns. Defendant filed his motion for a new trial on August 20, 1986, contending that this newly discovered evidence corroborated his assertion that he was acting in self-defense on the night of the shooting. The trial judge denied plaintiff’s motion, stating:

“The jury returned their verdict in this case on July 31st of 1986, and this arrest which is the subject matter of this document that was filed is on August 14th of 1986; and so that is something that happened after the offense and even after the trial; in my opinion would not be — could not be used. It’s inconceivable that this could be used or — suppose this had happened after the arrest of the defendant and before the trial; it still could not be used unless it was a pending case under which the State may have — or the witness may be testifying to curry the State’s favor. So there is no way in the world I could have considered this evidence at the trial, or even on a subsequent trial unless it was pending at that time.”

To entitle a defendant to a new trial, newly discovered evidence must be of such conclusive character that it will probably change the result on retrial, material to the issue and not merely cumulative, discovered since the trial, and of such character that it could not have been discovered prior to trial by the exercise of due diligence. (People v. Molstad (1984), 101 Ill. 2d 128, 134, 461 N.E.2d 398, quoting People v. Baker (1959), 16 Ill. 2d 364, 374, 158 N.E.2d 1.) The State contends that the newly discovered evidence must have been in existence at the time of trial; defendant maintains that it is unimportant when it came into existence, citing People v. Albanese (1988), 125 Ill. 2d 100. In that case, Albanese argued that “the 1985 closing of the Illinois Department of Public Health Toxicology Laboratory because of various serious inadequacies makes analysis for arsenic poisoning done by the lab in 1981 on the three murder victims unreliable.” (Albanese (1988), 125 Ill. 2d at 108.) In reaching its decision, the court considered various reports on the laboratory and held:

“While the above-named reports and the closing of the lab were not discoverable before the trial, problems with lab procedures might have been difficult for a nontechnician or a nonsci-entist to discover, and the reliability of the tests could be considered material, we do not find that any of the information — even assuming, for the sake of review, its truth and accuracy — is ‘of such conclusive character that it will probably change the result on retrial.’ ” (Emphasis in original.) (125 111. 2d at 109.)

Defendant underscores that the court considered the fact that the laboratory was closed in 1985, a factor not in existence at the time of trial in 1981, to determine whether Albanese should have been granted a new trial. Defendant overlooks, however, the obvious fact that the court considered the new developments at the laboratory only as they reflected problems in that facility at the time of Al-banese’s trial, and the circumstance that the laboratory had closed in 1985 in and of itself had no impact on Albanese’s case.

The State contends that newly discovered evidence which has the effect only of impeaching, discrediting or contradicting a witness is not a basis for a new trial. (People v. Martin (1983), 112 Ill. App. 3d 486, 445 N.E.2d 795.) It argues that Wayne’s arrest could be used only to impeach his testimony on the collateral issue of whether he used drugs regularly and whether he regularly handled guns. The State further argues that the decision whether to grant or deny a motion for a new trial based on newly discovered evidence is discretionary with the trial court and its decision will not be disturbed on review absent a showing of abuse of discretion. People v. Hughes (1984), 121 Ill. App. 3d 992, 460 N.E.2d 485.

Applications for a new trial on the grounds of newly discovered evidence are not looked upon with favor. (People v. Martinez (1984), 129 Ill. App. 3d 145, 472 N.E.2d 464.) The requirement that new evidence was not discoverable prior to trial by the exercise of due diligence implicitly demands that the evidence have been in existence at the time of trial. If this were not so, a defendant could challenge his conviction on the basis of events occurring long after his trial. We hold that the trial court did not abuse its discretion in denying defendant’s motion for a new trial.

Finally, defendant argues that the trial court erred in denying him access to Wayne’s mental health records. After reviewing the records in camera, in the presence of counsel for both parties, the trial judge stated:

“All right. I have read the records of the Tinley Park Mental Health Center. The dates of the hospitalization appear to be in 1974, and he was discharged effective February 4, 1974, and was [a] voluntary patient at the time. And it is my opinion that these records are too remote to this situation; that they have no bearing — could have no legal bearing on this matter. And I will deny them being furnished. And I will order the Clerk to re-seal these and to file them in the court file so that if there’s an appeal they will be there to be examined.”

Appellate defense counsel was allowed to view the records, and he maintains that trial counsel should have been permitted to view them as well, since this would have enabled him to argue more effectively the need for the records. Our review of the records indicates that Wayne was voluntarily admitted because of an obsessive behavior, which may have been caused by his drug abuse. Defendant contends that this reference to drug abuse supports his assertion that Wayne was involved with drugs.

The State correctly points out that mental health records are privileged (111. Rev. Stat. 1985, ch. 91V2, par. 810), and a party seeking disclosure may request an in camera inspection made in the presence of counsel for both parties. (People v. Coates (1985), 109 Ill. 2d 431, 488 N.E.2d 247.) That is precisely what was done in this case. The records were more than 10 years old at the time of trial; moreover, they do not indicate that Wayne had aggressive tendencies. The trial judge properly held that the records were not relevant.

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

Affirmed.

HARTMAN and BILANDIC, JJ., concur.


text:
    ROBERT R. KOECK, Plaintiff-Appellee, v. JIM EDGAR, Secretary of State, Defendant-Appellant.
    First District (2nd Division)
    No. 1—87—2783
    Opinion filed February 28, 1989.

      Neil F. Hartigan, Attorney General, of Springfield (Diane Curry-Grap-sas, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Kavathas & Castanes, of Chicago (Samuel A. Kavathas, Jr., of counsel), for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court:

Plaintiff filed suit in the circuit court seeking administrative review of the Secretary of State’s (Secretary’s) decision denying his petition for reinstatement of his driving privileges or, in the alternative, for a restricted driving permit. The trial court found that the Secretary’s refusal to restore plaintiff to his full driving privileges was against the manifest weight of the evidence. Accordingly, the judge ordered that the case be remanded to the Secretary and ordered full reinstatement. The Secretary appeals.

The Secretary raises the following issues on appeal: (1) whether the trial court properly found that his decision not to reinstate plaintiff’s full driving privileges was contrary to the manifest weight of the evidence, and (2) whether his decision to deny plaintiff a restricted driving permit was against the manifest weight of the evidence.

Because the scope of our review is narrowly confined to the issue of whether the Secretary’s decision is against the manifest weight of the evidence, a detailed examination of the record made in this case is in order.

Plaintiff is a self-employed automobile mechanic in Glenview, Illinois, approximately six miles from his home. His mother drives him to and from work. Plaintiff’s job requires him to test-drive cars, but at the time of the administrative hearing, he employed someone part time to perform that function.

Plaintiff was convicted for driving under the influence of intoxicating liquor (DUI) on January 10, 1983, and as a result, his driver’s license was revoked on March 24, 1983. He had been arrested for DUI on two prior occasions, neither of which resulted in conviction. In addition, the plaintiff’s driving record includes the following notations:

Conviction for disregarding stop sign 6/8/77

Conviction for speeding 4/19/78

Conviction for speeding 6/13/78

License suspension for three or more moving

violations in a 12-month period 10/12/78

Convicted for lighted lamp violation 6/28/78

Conviction for speeding 8/22/78

Conviction for speeding 9/4/78

License suspension for three or more moving

violations in a 12-month period 12/4/79

Conviction for speeding 9/19/79

License suspension for three or more moving

violations in a 12-month period 3/1/80

Conviction for reckless driving (reduced

from DUI) 12/18/81

Also of importance is plaintiff’s arrest in 1985 for driving in a parking lot while his license was revoked; he was then road-testing a car on the premises of his former employer. As a result of this arrest, he was put on supervision, which has since terminated. When asked at the administrative hearing if he made it a regular occasion to test-drive cars at his place of employment, the plaintiff responded, “[N]o, the least amount possible, and I never went off our lot.”

As noted above, plaintiff’s last arrest for DUI occurred on January 10, 1983, in Cook County at 2:37 a.m. Prior to being stopped, plaintiff consumed a six-pack of beer and two shots of whiskey within a three- or four-hour period. He admits that he knew he should not have been driving. After plaintiff was convicted on this charge, his license was revoked. In July of 1983, he sought a restricted driving permit (RDP), but the Secretary of State denied his request. Subsequently, in August of 1985, plaintiff sought reinstatement of his driving privileges, or in the alternative, an RDP, and again the Secretary denied plaintiff any relief. In October of 1986, plaintiff, for a third time, sought reinstatement of his driving privileges or an RDP, and for the third time, the Secretary denied the request.

At the October 1986 hearing, plaintiff testified that prior to his last arrest for DUI, he often drank to the point of intoxication, but after his conviction for DUI in 1983, and before the 1985 hearing, he had cut down his drinking to a “couple of times a week.” He contends that he now has further reduced his drinking to “only a few beers” on weekends.

Plaintiff has completed three alcohol drug assessments: in 1983, 1985 and 1986. In 1983, his alcohol assessor found that plaintiff appeared to be in the beginning stages of recovery/remission of alcoholism, and recommended that plaintiff abstain from alcohol and continue with regular Alcoholics Anonymous (AA) attendance. Plaintiff attended 11 AA meetings, but stopped going to them when his sponsor, who drove him to the meetings, moved to Wisconsin and he was left without transportation. Plaintiff never worked on any of the AA steps, although he states that he worked toward his goal, which was to stop drinking. The 1985 assessment classified the plaintiff as “non-problematic.”

The 1986 assessment also classifies plaintiff as “non-problematic”; however, the Secretary claims that the assessor was not aware of certain vital information when making this assessment. For example, the assessor states that plaintiff was arrested only twice for driving under the influence when in fact plaintiff was arrested three times. In addition, the assessor notes a reckless driving charge of 1981 as not involving alcohol, when it was in fact an alcohol-related incident. It is unclear as to why there were these gaps in the assessor’s information. Plaintiff stated in his testimony at the hearing that he did not show the assessor copies of his first alcohol assessment, but that the assessor was aware that he had gone through the program. The assessor, however, did have a copy of his 1985 evaluation.

At the 1986 hearing, plaintiff testified that he attended two sets of Alcohol Safety Education classes, explaining that he attended them because “one was required by the courts. *** The other one I went through in order to try and get a Restricted Driving Permit.” Plaintiff acknowledges that he was an alcoholic at one time and that he took “speed” in the form of diet pills for approximately two months.

After considering the evidence, consisting of the exhibits and testimony of the parties, the 1986 hearing officer found that there were inconsistencies between plaintiff’s first and last alcohol assessments concerning the nature and extent of his “use/abuse” of alcohol, and that it was clear that the first assessor intended for plaintiff to continue with AA attendance in order to help him abstain from the use of alcohol.

The hearing officer concluded that given plaintiff’s past driving record and the conflicting evidence concerning the nature and extent of his alcohol “use/abuse,” plaintiff failed to demonstrate that he would be a safe and responsible driver and that he would not endanger the public safety and welfare. Accordingly, the hearing officer recommended that plaintiff’s petition for full driving privileges or, in the alternative, an RDP be denied. On October 8, 1986, the hearing officer’s findings of fact and conclusions of law were adopted by the Secretary; consequently, plaintiff was denied full reinstatement of driving privileges and an RDP.

Thereafter, on November 13, 1986, plaintiff filed his complaint in administrative review in the circuit court. On August 4, 1987, the trial judge held that the Secretary’s decision to deny plaintiff full reinstatement of his driving privileges was improper and against the manifest weight of the evidence, and ordered the Secretary to reinstate plaintiff’s full driving privileges. This appeal followed.

Our motor vehicle code declares that once driving privileges have been revoked, their restoration is not automatic. (Ill. Rev. Stat. 1985, ch. 95x/2, par. 6 — 208(b)(2).) The Illinois Vehicle Code is also held to have been designed to promote and protect the safety of the public. (Blue Arrow Douglas, Inc. v. Howlett (1977), 54 Ill. App. 3d 230, 369 N.E.2d 272.) In considering restoration, the State must determine whether granting the privilege of driving a motor vehicle on our highways will not endanger the public safety or welfare. (Murdy v. Edgar (1984) , 103 Ill. 2d 384, 469 N.E.2d 1085.) Indeed, the Secretary is directed not to restore driving privileges until he is satisfied after investigation that the applicant will not present such a danger. (Ill. Rev. Stat. 1985, ch. 95x/2, par. 6 — 208(b); People v. Turner (1976), 64 Ill. 2d 183, 354 N.E.2d 897.) It is plaintiff who bears the burden of establishing entitlement to restoration of his driving privileges by clear and convincing evidence. (Sutton v. Edgar (1986), 147 Ill. App. 3d 723, 498 N.E.2d 295.) Our courts are uniform in holding that the public interest in curbing the epidemic number of deaths and injuries attributable to drunk driving by keeping unsafe drivers off the streets outweighs the interests of convicted drunk drivers in regaining their driver’s licenses. See Sutton, 147 Ill. App. 3d 723, 498 N.E.2d 295; Agans v. Edgar (1986), 142 Ill. App. 3d 1087, 492 N.E.2d 929; Han-nay v. Edgar (1988), 175 Ill. App. 3d 559, 529 N.E.2d 1101.

Of paramount importance for the purpose of our review of the Secretary’s determination in this case is the exceedingly narrow scope of that review, for our quest is confined to ascertaining whether the administrative agency’s findings are against the manifest weight of the evidence. Among the guidelines to be considered in our arriving at that decision are the following: Under section 3 — 110 of our Administrative Review Law, findings and conclusions of an administrative agency on questions of fact are to be considered prima facie true and correct. (Ill. Rev. Stat. 1985, ch. 110, par. 3 — 110.) Moreover, an administrative decision may not be interfered with unless the administrative body exercised its authority in an arbitrary or capricious manner. (Murdy v. Edgar (1984), 103 Ill. 2d 384, 469 N.E.2d 1085.) Nor may the reviewing court reweigh the evidence. (Odell v. Village of Hoffman Estates (1982), 110 Ill. App. 3d 974, 445 N.E.2d 247.) Further, if there is anything in the record which fairly supports the action of the agency, the decision is not against the manifest weight of the evidence and must be sustained on review. Sheldon v. Edgar (1985), 131 Ill. App. 3d 489, 475 N.E.2d 956.

Above all, in order to find that an agency’s findings are against the manifest weight of the evidence, it is necessary that an opposite conclusion be clearly evident from the proofs presented. (United Air Lines, Inc. v. Illinois Fair Employment Practices Comm’n (1979), 69 Ill. App. 3d 519, 387 N.E.2d 875; Agans, 142 Ill. App. 3d 1087, 492 N.E.2d 929.) “That an opposite conclusion might be reasonable or that the court might have reached a different conclusion is not adequate to set aside the agency’s decision.” (O’Boyle v. Personnel Board (1983), 119 Ill. App. 3d 648, 653, 456 N.E.2d 998.) Our courts have their own and differing ways of stating the rule, but in principle they are unanimous in holding that in order to set aside the agency decision, the reviewing court must find that all “reasonable and unbiased persons, acting within the limits prescribed by law and drawing all inferences in support of the finding would agree that the finding is erroneous.” (Agans, 142 Ill. App. 3d at 1093.) The authorities have been most recently collected in Agans (142 Ill. App. 3d at 1093).

Among the factors which the Secretary may consider in deciding whether to reinstate an applicant’s driving privileges and which are pertinent to this case are the following: whether the applicant has driven while his license was suspended or revoked; number and severity of accidents; frequency, type and severity of traffic violations; efforts at rehabilitation or reform of past driving practices; demeanor of applicant at hearing; credibility of applicant and witnesses in hearing; credibility and weight of applicant’s documents and evidence; and applicant’s total driving record, including but not limited to reasons for violations. 92 Ill. Adm. Code 1001.430(b) (1985).

Mindful of all the forgoing principles as guides, we have no difficulty in finding that the trial court erred in holding that the Secretary’s determination was against the manifest weight of the evidence. To hold otherwise would be to reweigh the evidence and substitute our judgment for that of the Secretary, a procedure we plainly cannot indulge ourselves any more than the trial judge could appropriate the function to herself. We need not recapitulate the voluminous facts we have set forth at the beginning of this opinion. Suffice it for us to say here that plaintiff’s dismal driving record and his failure to bear the burden of establishing his entitlement to a restoration of his driving privileges by clear and convincing evidence precludes not only our courts, but indeed, the administrative agency itself in this case from affording plaintiff any of the relief he seeks herein.

In Cusak v. Edgar (1985), 137 Ill. App. 3d 505, 484 N.E.2d 1145, the court noted that the plaintiff’s seven traffic convictions in 10 years, including two DUI’s, demonstrated his total disregard for traf-fie laws and safety, and concluded that the plaintiff’s driving record alone supported the Secretary’s decision not to reinstate full driving privileges. In Cusak it was also held that where an alcohol assessment noted only one DUI arrest while the plaintiff in fact had two, and where the report further stated that the plaintiff regularly attended AA meetings, whereas plaintiff had in fact gone to only one, the Secretary’s denial of an RDP would be upheld.

Plaintiff contends that the Secretary cannot deny reinstatement based solely on past conduct, citing Shanahan v. Edgar (1986), 149 Ill. App. 3d 868, 501 N.E.2d 197. But in Shanahan, the court invalidated the Secretary’s rule calling for an automatic five-year ban on driving for persons convicted of more than one DUI, not because the court felt that past conduct cannot be considered a determinant in granting or denying reinstatement, but because the rule was held to be irredeemably in excess of the Secretary’s authority. Moreover, here the Secretary did not rely solely upon plaintiff’s past conduct in denying reinstatement, but, as the record recited hereinabove amply demonstrates, the Secretary had the benefit of three alcohol assessments and plaintiff’s own testimony at the administrative hearing, at which, we are constrained to reiterate, plaintiff failed to sustain the burden that was incontestably his.

Plaintiff insists, however, that he has carried his burden of showing that he is a safe and responsible driver, noting that he successfully attended an ASEP course, two alcohol education courses and has attended 11 Alcoholics Anonymous meetings, besides submitting to three alcohol evaluations by clinics approved by the Secretary of State. Plaintiff further asserts that there is no evidence that he was to abstain from alcohol indefinitely, claiming that the conclusion by the hearing officer that plaintiff should continue AA meetings to help him abstain from the use of alcohol was in fact accomplished through his attendance at 11 meetings.

Plaintiff overlooks several important facts. He has been characterized by an alcohol assessor as a recovering alcoholic; he admits that he at least “was” an alcoholic, but acknowledges also that he still drinks, contrary to the recommendations of his 1983 alcohol assessor. Then, too, the record here is barren of any documented evidence of appropriate treatment for alcoholism. Although he attended 11 AA meetings in 1983, plaintiff has, by his own admission, yet to adhere to the AA program. He asserts that his “goal” is to stop drinking and, in an apparent effort to prove it, plaintiff testified that prior to his last arrest for DUI, he often drank to the point of intoxication; however, after his conviction of that offense in 1983, but before the 1985 hearing, he had cut down his drinking to a “couple of times a week,” whereas he now has further reduced his drinking to “a few beers” on weekends. If plaintiff is attempting to demonstrate that the more time passes since his last AA meeting, the less alcohol he consumes, and therefore the less he needs outside help with his problem, we fail to be edified, and we can all the more easily understand why the Secretary remained unmoved. Plaintiff further explained at the administrative hearing that his attendance at the Alcohol Safety Education classes was because “one was required by the courts *** the other one I went through in order to try and get a restricted driving permit” — reasons which hardly inspire confidence in plaintiff’s will to become a safe and responsible driver.

Plaintiff stresses that in his last two alcohol assessments he was classified as “non-problematic.” Prescinding from the issue of whether the 1986 alcohol assessor was in possession of complete and accurate information necessary to his assessment, the Secretary cites this court’s having addressed a similar situation in Caracci v. Edgar (1987), 160 Ill. App. 3d 892, 513 N.E.2d 932. In Caracci, the plaintiff had only one drunk driving conviction, and his alcohol assessment stated that he “was totally committed to a life of sobriety, had stopped drinking over one year earlier and did not have a problem with alcohol.” But the Secretary “found that Caracci’s past driving record documented a history of past alcohol abuse without documented evidence of appropriate treatment or abstinence.” The court pointed out that the alcohol assessment was based largely on Caracci’s testimony and that the Secretary could properly make his own findings concerning the credibility of a plaintiff’s testimony.

In light of the foregoing, we are satisfied, contrary to the trial judge’s holding, that the Secretary’s decision not to reinstate plaintiff’s license was well supported by the evidence.

The Secretary next argues that his decision to deny the plaintiff a restricted driving permit was not against the manifest weight of the evidence, pointing out that the legislature expressly granted him broad discretion in these cases. (Ill. Rev. Stat. 1985, ch. 95%, par. 2— 104; Foege v. Edgar (1982), 110 Ill. App. 3d 190, 441 N.E.2d 1267.) The Secretary further states that he has discretion to issue RDPs only in cases where “undue hardship” will result. Ill. Rev. Stat. 1985, ch. 95%, par. 6-205(e).

However, he maintains, the plaintiff in this case is not suffering undue hardship by his being without a driver’s license, noting that plaintiff lives approximately six miles from his shop, that his mother drives him to and from work, and that he has a part-time employee who test-drives the cars he repairs. Therefore, he concludes, in light of the fact that plaintiff failed to prove that he suffers any undue hardship as a result of his loss of driving privileges, considered with the risks to the public safety which plaintiff’s driving poses, he was correct in his determination that plaintiff should be denied an RDP as well as full reinstatement of driving privileges.

Plaintiff claims substantial hardship, for without his license, he will not be able to continue in his business, that he had only temporary help to test-drive the cars after they were repaired, and that he cannot afford this help indefinitely.

We hold that the Secretary correctly denied plaintiff an RDP. Inconvenience is not undue hardship, nor is having to pay someone to test-drive cars. Plaintiff has not proved undue hardship as a result of his loss of driving privileges; accordingly, we uphold the Secretary’s decision to deny him an RDP.

Accordingly, for the reasons expressed above, the judgment of the trial court is reversed.

Reversed.

HARTMAN and BILANDIC, JJ., concur.


author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ZDZISLAW KUBICA, Defendant-Appellee.
    First District (3rd Division)
    No. 1—87—1849
    Opinion filed March 1, 1989.

      Richard M. Daley, State’s Attorney, of Chicago (Kenneth T. McCurry, Paula Carstensen, and Nancy Nolan Colletti, Assistant State’s Attorneys, of counsel), for the People.
    No brief filed for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

The State of Illinois appeals an order of the circuit court of Cook County which rescinded the statutory summary suspension of defendant Zdzislaw Kubica’s driving privileges. On appeal, the State argues that rescission of defendant’s statutory summary suspension was not warranted under the circumstances. We reverse and remand.

On November 26, 1986, defendant was arrested on suspicion of driving under the influence of alcohol. When the police stopped defendant, he was asked to submit to a sobriety test. Defendant refused the test. When defendant refused the test, his driving privileges were summarily suspended pursuant to section 11 — 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95V2, par. 11 — 501.1).

The arresting officer completed a law enforcement sworn report (Report) wherein he identified the reason for the suspension as well as the reasonable grounds upon which he believed defendant had violated section 11 — 501. The officer signed the Report, wrote his star number on the Report and gave a copy to defendant.

On January 5, 1987, defendant petitioned the court to rescind the statutory summary suspension of his driving privileges. Pursuant to the statute, an implied consent hearing was scheduled. At the hearing, defendant moved to dismiss, claiming that the Report was not sworn to under oath by the arresting officer. The trial court then rescinded the suspension of defendant’s driving privileges based upon its decision that the arresting officer’s signature on the Report was illegible. This appeal followed.

We initially note that a hearing on rescission of the statutory summary suspension of one’s driving privileges is a civil proceeding separate and distinct from a criminal prosecution for driving under the influence of alcohol. Therefore, the State has the right to appeal an adverse ruling such as the one here before this court. People v. Porretta (1984), 127 Ill. App. 3d 572, 574, 469 N.E.2d 314, 316.

Section 2 — 118.1, which authorizes implied consent hearings, reads in part:

“The scope of the hearing shall be limited to the issues of:

1. Whether the person was placed under arrest for an offense as defined in Section 11 — 501, or a similar provision of a local ordinance, as evidenced by the issuance of a Uniform Traffic Ticket; and

2. Whether the arresting officer had reasonable grounds to believe that such person was driving or in actual physical control of a motor vehicle upon a highway while under the influence of alcohol, other drug, or combination thereof; and

3. Whether such person, after being advised by the arresting officer that the privilege to operate a motor vehicle would be suspended if the person refused to submit to and complete the test or tests, did refuse to submit to or complete such test or tests to determine the person’s alcohol or drug concentration; or

4. Whether the person, after being advised by the arresting officer that the privilege to operate a motor vehicle would be suspended if the person submits to a chemical test, or tests, and such test discloses an alcohol concentration of 0.10 or more, and such person did submit to and complete such test or tests which determined an alcohol concentration of 0.10 or more.” Ill. Rev. Stat. 1987, eh. 95V2, par. 2 — 118.1.

The State thus argues that the trial court’s order rescinding the statutory summary suspension of defendant’s driving privileges was in error because it resulted from the trial court’s finding that the police officer’s signature on the Report was illegible, an issue improperly raised at the implied consent hearing.

The issue raised in this appeal by the State was addressed in the recent decision of People v. Badoud (1988), 122 Ill. 2d 50, 521 N.E.2d 884. In Badoud, the Illinois Supreme Court equated a sworn report in a summary suspension hearing with a complaint in an ordinary civil proceeding. A hearing under section 2 — 118.1 is to proceed in the same manner as a hearing in any other civil proceeding. Thus, the supreme court concluded that the trial court can, in a section 2— 118.1 hearing, consider whether an officer’s report is sworn. (122 Ill. 2d at 54, 521 N.E.2d at 886.) The court went on to hold that, in light of legislative intent and the seriousness of the public hazard that summary suspension legislation addresses, “the General Assembly intended an officer’s good-faith failure to initially swear to the report to be curable.” 122 Ill. 2d at 59, 521 N.E.2d at 888-89.

In the instant case, defendant’s summary suspension was rescinded because the officer’s handwriting was found illegible by the court. In light of the holding in Badoud, we find that the trial court erred in not allowing the State to cure any defect in the Report caused by its determination that the officer’s handwriting was illegible.

Accordingly, the order of the trial court is reversed, and this cause is remanded with directions that the suspension of defendant’s driving privileges be reinstated and a hearing be held consistent with this opinion.

Reversed and remanded.

FREEMAN, P.J., and WHITE, J., concur.