author: JUSTICE CAMPBELL

text:
    JACK GOWLER, Plaintiff-Appellee, v. FERRELL-ROSS COMPANY, successor to Ross Machine Company, a corporation, Defendant-Appellant (Russell W. Fox, d/b/a Fox Construction Company, et al., Defendants).
    First District (1st Division)
    No. 1—88—2767
    Opinion filed September 4, 1990.
    Rehearing denied December 26, 1990.

      Kiesler & Berman, of Chicago (Edward L. Cooper, of counsel), for appellant.
    Perz, Condon, Ridge & Capron, of Chicago (Joseph T. McGuire, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Defendant, Ferrell-Ross Co., appeals from a judgment entered against it and in favor of plaintiff, Jack Gowler, for the sum of $794,304 as damages for personal injuries sustained by plaintiff when his hand was caught in the rollers of a Ross cracking mill, a machine manufatitured and distributed by defendant. On appeal, defendant contends that: (1) plaintiff had failed to establish that the Ross cracking mill was in the same condition at the time of the accident that it was in when it was manufactured; (2) the trial court erroneously admitted into evidence testimony and exhibits relating to subsequent accidents which had occurred on similar Ross cracking mills; (3) plaintiff’s counsel’s comments during voir dire that the court would prevent double recovery prejudiced defendant; (4) plaintiff’s counsel’s comments during opening argument as to the-cracking mill’s serial number identification plate were improper on the ground that he never introduced evidence as to the serial number identification plate; (5) it was prejudicial error for plaintiff’s counsel to discuss with the venire the nature and purpose of the evidence to be presented; (6) defense witness Joseph Naylor was improperly limited in his testimony as to his direct knowledge of the operation and expertise of defendant; (7) the trial court erroneously allowed into evidence documents relating to defendant’s corporate history; (8) the trial court unduly restricted defendant’s cross-examination of plaintiff’s expert, Irving Hazard; (9) the trial court erroneously denied defendant’s instructions as to assumption of risk; (10) plaintiff’s counsel’s closing argument was so prejudicial and improper as to cause reversible error; (11) the trial court erroneously allowed plaintiff, after he had rested his case, to testify that the photographs taken in 1985 were photographs of the Ross cracking mill as it existed in 1978; and (12) comments made by the trial court during trial, testimony as to plaintiff’s earning capacity, the trial court’s limitation on defendant’s impeachment of plaintiff and the trial court’s refusal to admit defendant’s exhibits depicting alleged lockout procedures constituted reversible error. For the following reasons, the judgment of the trial court is affirmed.

According to the record, the Ross cracking mill, the machine at issue in the present case, was integrated into the soybean processing system of the Archer-Daniels-Midland (ADM) plant, located in Gales-burg, Illinois. Plaintiff was employed by ADM as a maintenance “B” worker. The Ross cracking mill is equipped with a feeder on the front of the machine through which soybeans are fed down between two sets of cracking rollers. The rollers crack and crush the beans, which are then discharged into the bottom of the cracking mill and pass into the sifting phase of the process.

On December 9, 1977, approximately 3 a.m., during plaintiff’s work shift at ADM, the electrical power went off in the plant for approximately one minute. Whenever there is a power outage, clogged soybeans have to be removed by hand from the cracking mills. This procedure was part of plaintiff’s job. Plaintiff first removed the clogged soybeans from an Allis-Chalmers cracking mill. Because the electrical power was on by this time, plaintiff made certain that the power switch for the Allis-Chalmers mill was in the “off” position before commencing removal of the beans from that mill. The power switches for the four cracking mills were located on the wall. After plaintiff finished cleaning the Allis-Chalmers mill, he told the mill operator that he could start that machine. Plaintiff then went over to the Ross cracking mill. Before commencing the unclogging procedure, he made certain the power to the mill was turned off. He then started to clean it by reaching his hand through the feeder door and removing the clogged soybeans from the rollers. While he was cleaning out the clogged soybeans, someone turned the power switch on to the Ross cracking mill and plaintiff’s hand was caught in the turning rollers. One of the workers eventually turned off the power, but the rollers kept rolling a short period longer until they stopped on their own. As a result of the incident, plaintiff suffered severe hand injuries.

On December 29, 1978, plaintiff filed his complaint against defendant, alleging that the Ross cracking mill was unreasonably dangerous because it failed to provide a fail-safe interlock door device to prevent the mill’s actuation while the feeder door was open. Approximately one year later, plaintiff filed an amended complaint, adding as parties defendant: Russell W. Fox, d/b/a Fox Construction Co., Haskins Electric Co., Louis T. Langhurst and Maxwell Electric Co. However, plaintiff later nonsuited the additional defendants and filed a second amended complaint solely against Ferrell-Ross, Inc., which alleged that the Ross cracking mill, as designed, manufactured and distributed, was unreasonably dangerous in that it:

“(a) was not equipped with a barrier guard to prevent human entry into the in-running nip point between the cracking rolls;
(b) no warning was provided to maintenance operators of the danger of unintentional actuation of the cracking mill rollers during unclogging operations;
(c) no specification and instruction was provided on a safe technique for foreseeable unclogging operations;
(d) no warning was provided to maintenance operators to perform no unclogging operations without a lockout mechanism in place;
(e) there was no provision or specification of properly located electrical controls to provide for operator and maintenance operator safety;
(f) there was no provision or specification of a start-up alarm with the time delay actuation.”

Following a jury trial, the jury returned a verdict assessing damages against defendant in the amount of $794,304. Judgment was entered on the verdict and defendant appealed.

Initially, defendant contends that the Ross cracking mill was substantially and materially changed by ADM so as to preclude any claim that the mill was unreasonably dangerous when it left defendant’s control. Specifically, defendant states that the feeder door through which plaintiff reached had not been manufactured by defendant; the roll release level had been clamped shut by ADM; and the roller guard had been removed.

In response, plaintiff contends that the injuries were not caused by any of the changes made by ADM. Rather, they were caused by inadequate protection from the in-running nip during clog-clearing activities. Because this condition was a design defect, plaintiff argues that it was present when the mill left defendant’s control. Moreover, regarding each of the changes defendant alleges ADM had made to the mill, plaintiff claims they were not substantial and material. First, the fact the feeder door was not made by defendant is irrelevant. Whatever type of feeder is used, the risk, hazard and danger of the in-running nip remain the same. Second, the roll release lever is merely a device to adjust the roll clearance for cracking or grinding the grain. It is not a mill unclogger. Thus, the fact it was clamped shut had no relevance to the incident. Third, there was no “guard” over the roller as defendant suggests. The “guard” defendant refers to is actually a scalping screen supplied by ADM at defendant’s recommendation to keep out foreign particles during mill operations. In order to unclog the mill, the screen must be removed. Fourth, it is foreseeable that the mill will become clogged and that in order to unclog the mill, a person would have to put his hand through the feeder door. Despite this foreseeability, plaintiff alleges that defendant failed to provide unclogging procedures and instructions. In fact, one of defendant’s own witnesses, Roscoe Warner, testified that the mill should have had a lock-out device.

In its reply brief, defendant contends, without explanation, that even if a safety device had been installed to the feeder door, it would not have prevented the accident. Moreover, because the whole system would have to shut down, not just the mill, ADM would have found a way to circumvent any safety device. As a general rule, an injured plaintiff may recover damages from a manufacturer under a product liability theory if he proves that his injury resulted from an unreasonably dangerous condition of the product that existed at the time it left defendant’s control. (Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182.) However, if the condition of the product has been substantially altered from its original condition by the plaintiff, he will not be able to establish defendant’s liability. Berry v. Gibson (1986), 141 Ill. App. 3d 876, 491 N.E.2d 33.

In our view, plaintiff established that the Ross cracking mill lacked a protective interlock for the in-running nip for use during clog-clearing activities when the mill left defendant’s control and that the alterations made by ADM were irrelevant to the cause of the injury. Accordingly, we conclude that plaintiff provided sufficient evidence to support the jury’s verdict that the lack of this safety device was an unreasonably dangerous design defect that caused his injury.

Next, defendant contends that the trial court erred in admitting into evidence testimony and exhibits as to subsequent accidents which occurred on similar Ross cracking mills. Defendant argues .that the evidence as to subsequent accidents, i.e., testimony by other injured parties, photographs of other Ross cracking mills, answers to interrogatories in other actions and an invoice for the purchase of another Ross cracking mill, was prejudicial, had no probative value and its only purpose was to inflame the jury.

In response, plaintiff claims that the evidence was probative in that it related to substantially similar accidents which had occurred on Ross cracking mills as the result of the mill’s inadequate protection from the in-running nip. Therefore, it was admissible to show the unreasonably dangerous design of the Ross cracking mill. Further, .plaintiff explained that because defendant repeatedly stated during trial that it was uncertain as to whether it had manufactured the mill in question because the mill did not have a “Ross” nameplate, plaintiff had to introduce photographs of other mills made by defendant which had the nameplate to show that their design was identical to the mill in question. Regarding the invoice for another mill shipped to a different location, plaintiff explained that it had been introduced to establish the time frame within which defendant had designed and had shipped a mill similar to the mill in question. Further, photographs of mills that were designed by defendant subsequently to the one shipped to ADM were necessary to show that although external design details had changed, the in-running nip hazard remained unaddressed.

As a general rule, admission of evidence of either prior accidents or subsequent accidents is proper if, at the relevant times, the equipment involved was in substantially the same condition and the accidents were sufficiently similar. (Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill. 2d 434, 396 N.E.2d 534; Wiedemann v. Industrial Erectors, Inc. (1985), 137 Ill. App. 3d 47, 483 N.E.2d 990.) The accidents need not have occurred in an identical manner. All that is required is that they be substantially similar. (Rucker, 77 Ill. 2d 434, 396 N.E.2d 534.) In Rucker, plaintiff’s decedent was killed when a petroleum gas tank car exploded when punctured by a coupler. At trial, plaintiff admitted evidence of 42 prior accidents involving punctures of tank cars which had not been equipped with headshields to show the danger of the design. Defendant objected on the ground that in 16 of the incidents, the puncture had occurred in a manner other than by a coupler. On appeal, the Rucker court affirmed the trial court’s decision to admit evidence of all 42 accidents on the ground that the point plaintiff sought to make was that the tank car was susceptible to puncture when not equipped with a headshield.

Similarly, in the present case, evidence of the subsequent accidents involved cracking mills manufactured by defendant which were not equipped with a protective device for the in-running nip. Each accident occurred when the injured party put his hand into the same part of the cracking mill to correct a problem. Thus, the cracking mill involved in each accident had the same design defect as did the cracking mill on which plaintiff was injured and the resulting injuries from the other cracking mills were similar to the injury incurred by plaintiff. Therefore, the trial court properly admitted evidence of subsequent accidents. Further, the admission of the invoice and photographs of other mills was proper on the ground that they were probative as to the issue of whether defendant had manufactured the mill in question.

Defendant further argues that plaintiff’s counsel’s comments during voir dire that plaintiff had not received any money for his injuries and that the jury was not to speculate as to double recovery were highly prejudicial and constituted grounds for reversal. Specifically, defendant cites to the following:

“[PLAINTIFF’S COUNSEL]: The great principle of law that applies to this case and applies to every case in the courthouse is called the principle against double recovery. There is nobody in this courthouse that ever gets money twice. Nobody that is running this system is going to reward this plaintiff the second or the third time for damages that he received. He’s only entitled to one set of damages.
Now, can you follow that principle in this case and not speculate outside the case whether or not by you doing your job on the damages, listening to the instructions, giving him what you know the evidence in the case warrants and requires and not speculate outside that maybe you’re now giving him a second recovery. Do you think you can do that?”

In its argument, defendant has failed to indicate how these comments during voir dire prejudiced him and cites to no authority which would support his argument that the comments constitute reversible error. The cases relied upon by defendant, Chamness v. Odum (1979), 80 Ill. App. 3d 98, 399 N.E.2d 238, and Robinson v. Greeley & Hansen (1983), 114 Ill. App. 3d 720, 449 N.E.2d 250, state that evidence as to workers’ compensation recovery is prejudicial because it could have the effect of decreasing the jury’s award. This holding directly contradicts defendant’s argument. Apparently, defendant believes that eliminating any concern about double recovery would increase the jury’s award. However, Illinois law does not address this concern. In fact, in Robinson v. Greeley & Hansen (1983), 114 Ill. App. 3d 720, 449 N.E.2d 250, a comment referring to the jury award as plaintiff’s “one chance for the compensation” was found to be proper even though the plaintiff also had a remedy under the Workers’ Compensation Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.1 et seq.). The court reasoned that the purpose of the Act is to provide financial protection, not compensation. Thus, the comment had been factually correct and proper. Similarly, in the present case, plaintiffs counsel’s comment was also factually correct. Further, defendant has failed to indicate how counsel’s comments prejudiced him. Accordingly, we do not find that the comments provide grounds for reversal.

Defendant further argues that plaintiff’s counsel’s comments during opening argument as to the cracking mill’s serial number identification plate were improper on the ground that he never introduced evidence as to the serial number plate. During his opening statement, plaintiff’s counsel made the following comments about the serial number plate:

“The invoice that I mentioned for the 2196 serial number shows that the machine when it was sold was sold with what’s known as a Rossomatic feeder. A Rossomatic is just another feeder like most of the feeders in the business. They are not much different than a feeder can be if it is in the roller-type feeder. And the Rossomatic was one of these ordinary — I believe it was a single-roller feeder.
The Archer Daniels Midlands Company — now, let me tell you that the invoice shows that 2196, that serial number, with its Rossomatic feeder was delivered to the Fredonia, Kansas, location of Archer Daniel Midlands. There is evidence that it later after it had been used for a few years at Fredonia was sent to where they wanted to process the soybeans instead of in Kansas in Galesburg, Illinois. So they shipped the machine to Galesburg.
When it came to Galesburg, they already had what is called a Langhurst, a complete machine standing in that spot. But they wanted to use the Ross machine so the employer left the feeder which is hooked up to all the — you know, the soybeans come in through an air duct affair and they are pumped in that way and they come down on a gravy feed and they pour into the top of this feeder (indicating).
Well, now, that feeder was kept just the way it was, connected with everything, and they disconnected the Langhurst and they put the Ross right under that feeder. Now, by doing that, they had to take the Rossomatic feeder off of it. Therefore, the label, the serial number stamping was taken off of the feeder and it was put in an envelope somewhere in the office in the manufacturing plant in Galesburg. There was no serial number label on the machine on the day Jack Gowler was injured. But they ran in and got it five, six months later when somebody said, ‘What is the serial number of the machine? We know it is a Ross, but when did you buy it?’ That was us. We started to ask questions.
They came out and put Serial No. 2196 on it, and you will see this picture taken — I think it was, oh, maybe six months after the occurrence when we got this picture — that there is no plate on it. Then pictures taken about a year later had the 2196 serial number on it, but not to worry.
Let me explain to you what that means. Part of the defense of this case is that this isn’t our machine. You see that says Ross. We don’t own Ross. We didn’t merge with Ross. But the truth is, they bought all of Ross’ assets, and any sale of a Ross machine from January 22nd, 1964, on wasn’t a sale by Ross. It was a sale of a Ross mill by the Burroughs Company. And of course, the company we sued is the J.P. Burroughs Company. And J.P. Burroughs was a subsidiary or had a subsidiary called Ferrell-Ross, and Ferrell-Ross was the name of the corporation that operated the Oklahoma City Ross plant. But they are all linked.”

Defendant contends that these comments were erroneous and prejudicial because plaintiff failed to introduce any evidence at trial to prove that the events regarding the serial number plate had occurred as described during plaintiff’s opening argument. In fact, at trial, Roscoe Warner, former director of engineering for defendant, testified that the 2196 serial number plate allegedly affixed to the cracking mill after plaintiff’s injury was not the correct serial number for the model on which plaintiff had been injured.

Once again, defendant has failed to indicate how the lack of proof to substantiate plaintiff’s opening statement prejudiced him. Moreover, although plaintiff’s counsel was unsuccessful in tying up serial number 2196 to the cracking mill which injured plaintiff, the record indicates that he attempted to provide evidence that the serial number plate 2196 belonged on the cracking mill in question. The fact that he was unable to do so does not render his opening statement prejudicial.

Furthermore, none of the cases relied upon by either plaintiff or defendant is relevant to this issue: McCarthy v. Spring Valley Coal Co. (1908), 232 Ill. 473, 83 N.E. 957 (plaintiff’s counsel’s comment during opening argument that plaintiff had a wife and children served only to gain jury’s sympathy); Sawicki v. Kim (1983), 112 Ill. App. 3d 641, 445 N.E .2d 63 (comment during opening statement on inadmissible evidence is prejudicial); Hooper v. Mizyad (1981), 98 I;;. App. 3d 768, 424 N.E.2d 851 (single statement made by plaintiff’s counsel in a record exceeding 500 pages cannot be said to have prejudiced defendant).

Next, defendant contends that it was prejudicial error for plaintiff’s counsel to discuss with the venire the nature and purpose of the evidence to be presented. Defendant argues that the questioning used by plaintiff’s counsel to prospective juror Colvin during voir dire was improperly intended to indoctrinate and preeducate her, thereby prejudicing her against defendant’s position. During voir dire, plaintiff’s counsel conducted the following line of questioning:

“[PLAINTIFF’S COUNSEL]: Okay. The defendant in this case is a corporation and part of the evidence in this case will be — .
[DEFENSE COUNSEL]: Your Honor, I have to object to what that evidence will be at this stage.
THE COURT: Overruled, Counsel. Proceed.
[PLAINTIFF’S COUNSEL]: Part of the evidence in this case will be part of the succession of these corporations that relate to the manufacture of this particular milling machine that was produced either in the late 60’s *** or the early 70’s. Do you understand that?
[DEFENSE COUNSEL]: Your Honor, I have to object because that’s one of the issues in question.
THE COURT: Overruled, Counsel. Proceed.
[PLAINTIFF’S COUNSEL]: Now, we will produce this evidence for you and' the purpose of it will be to identify the one who designed, manufactured, and placed into, the stream of commerce this particular milling machine. Do you understand that?
VENIREMAN: Yes, I understand.
[PLAINTIFF’S COUNSEL]: And one. of your jobs will be to deliberate the evidence about that corporate chain. And in connection with the liability in this case — and as the court told you — the defendant is the Blount Agreindustrial Corporation, Incorporated, a division of Blount, Incorporated and the original machine has the name Ross on it. You will begin with the evidence with that word Ross on it.
[DEFENSE COUNSEL]: Your Honor, I have to object to him presenting testimony in picking the jury.
THE COURT: I believe thus far, counsel, it’s proper interrogation. The objection is overruled.
[PLAINTIFF’S COUNSEL]: Now, you understand that when we are presenting that evidence, the purpose of that evidence is to show you that the Ross name on the front of the machine was purchased by the predecessor corporation of the Blount Agroindustrial Corporation. Evidence will be offered to show that they had purchased the good will, the name and the patents and the designs and then went ahead and produced these machines where they kept the name Ross on the machines.
[DEFENSE COUNSEL]: Your Honor, I have to be heard on this.
THE COURT: You have to object?
[DEFENSE COUNSEL]: Yes.
THE COURT: The objection will be overruled, Counsel, because that is one of the issues that you neither admit nor deny and you are asking strict proof. He is giving it.
[DEFENSE COUNSEL]: I believe that the prospective juror on board — .
THE COURT: The objection will be overruled. Proceed.
[PLAINTIFF’S COUNSEL]: All right. Now, you will be willing to listen to evidence that relates to that subject such as I have described, wouldn’t you?
VENIREMAN: Yes, I would be willing to listen.
[PLAINTIFF’S COUNSEL]: And will you follow that evidence, too, wherever it leads you and then honestly return that verdict in that jury room with your fellow jurors, won’t you?
VENIREMAN: Yes.”

The purpose of voir dire is to permit counsel to ascertain whether the minds of prospective jurors are free from bias or prejudice. The manner and scope of the questioning is within the court’s discretion. (People v. Muhammad (1985), 132 Ill. App. 3d 901, 478 N.E.2d 457.) When voir dire becomes an attempt to indoctrinate or to preeducate jurors, to obtain a pledge as to how they would decide under a given state of facts or to determine which party they would favor in a litigation, it may be serious error for the court not to cut off voir dire. Gasiorowski v. Homer (1977), 47 Ill. App. 3d 989, 365 N.E.2d 43.

In the present case, the questioning of plaintiff’s counsel appears to go beyond the mere ascertaining of whether the juror is free from bias or prejudice. However, it does not rise to the level of indoctrinating or preeducating the prospective juror. As evidenced by counsel’s query to the prospective juror as to whether she would be able to follow the evidence, counsel was merely attempting to ascertain whether the juror could intellectually comprehend the details of the chain of corporate ownership, an integral part of plaintiff’s argument. Accordingly, the questioning did not prejudice defendant.

Defendant next contends that it was denied its right to properly present its defense when the trial court sustained plaintiff’s objection to questions asked of defense witness Naylor as to defendant’s expertise in electrical connections and as to the cracking mill being merely a component part of a system which defendant did not install. Defendant further argues that Naylor should have been allowed to testify as to his own personal knowledge regarding the roll release lever on the cracking mill.

In response, plaintiff argues that the trial court properly prevented Naylor from testifying as to his opinion regarding the cracking mill on the ground that defense counsel had failed to disclose Naylor as an expert witness pursuant to Supreme Court Rule 220 (107 Ill. 2d R. 220). Further, Naylor’s attempt to characterize the cracking mill as merely a component in the soybean processing system was not supported by the evidence.

At the outset of the testimony of Joseph Naylor, former director of engineering for defendant, a sidebar took place during which the court limited Naylor’s testimony to that of a factual witness, i.e., he could testify as to anything that was going on at the particular ADM plant where the accident had occurred, but he could not give an opinion. Defendant did not object to this limitation.

Naylor commenced his testimony with a general description of the soybean milling process. When queried as to how the machines were powered, Naylor stated that they were powered by electricity. At that point, plaintiff objected on the ground that Naylor had never even established that he had ever been at the Galesburg plant, where plaintiff’s accident occurred. In response, Naylor admitted that he could not remember having been at the plant prior to plaintiff's accident.

In a sidebar, the court noted that it was becoming increasingly clear that Naylor should have been identified as a Rule 220 witness. Defense counsel claimed that neither party had complied with Rule 220. The court responded that while defendant had not objected to plaintiffs noncompliance with the rule, plaintiff had objected to defendant’s noncompliance and the court was sustaining plaintiffs objection. The court added that only one machine is at issue and if Naylor testifies as to that machine, he will be testifying as an expert, which is not allowed.

Following the sidebar, Naylor testified as to changes made to the Ross cracking mill by ADM, such as an added door latch, C-clamps and square guards. The trial court sustained objections to Naylor's testimony as to the functions of the roller release lever. Subsequently, in an offer of proof, Naylor testified that when he was working for defendant, defendant had placed a guard into the cracking mill, but had to remove it because it had caused product contamination; that defendant had no electrical expertise; that defendant sold cracking mills without feeders if the customer requested such a model; and that he had never seen a cracking mill with an interlocking device.

When a witness testifies as to his own observations, he is not an expert witness who has to be disclosed under Rule 220. (Exchange National Bank v. Air Illinois, Inc. (1988), 167 Ill. App. 3d 1081, 522 N.E.2d 146.) Rather, an expert witness “is a person who, because of education, training, or experience, possesses knowledge of a specialized nature beyond that of the average person on a factual matter material to a claim or defense in pending litigation and who may be expected to render an opinion within his expertise at trial.” (107 Ill. 2d R. 220(a)(1).) Failure to disclose an expert witness pursuant to Rule 220 will result in disqualification of the expert as a witness. 107 Ill. 2d R. 220(b)(1). .

In the present case, defendant admitted that it had not disclosed Naylor as an expert witness, but claimed there had been an agreement between the parties that they would not comply with Rule 220. Plaintiff denied the existence of such an agreement. Regardless of whether such an agreement was reached, this court cannot condone an agreement to violate supreme court rules. These rules are construed as law and, as such, mandate compliance. Because defendant had failed to comply with Rule 220, the trial court properly limited Naylor’s testimony to relevant factual observations. In that regard, because Naylor had never been at the Galesburg plant prior to the accident, he had no relevant factual observations to relate.

Further, defendant’s attempt to characterize the Ross cracking mill as a component part in the whole soybean processing system, in order to avoid liability, is without merit. (See Curry v. Louis Allis Co. (1981), 100 Ill. App. 3d 910, 427 N.E.2d 254.) The cracking mill was a fully integrated machine, which, together with other machines performing different functions, constituted a processing system similar to an assembly line. Accordingly, we conclude that the trial court properly limited the testimony of defense witness Naylor.

Next, defendant contends that the trial court erred in allowing into evidence documents relating to the corporate history of defendant. Specifically, defendant argues that exhibits 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12, allowed into evidence, had no useful purpose and only served to confuse the jury. Therefore, their admission into evidence constituted an abuse of the trial court's discretion.

Exhibits 3 through 12 relate to the corporate history of defendant, focusing on the merger of J.P. Burroughs with Blount, and the subsequent merger of J.P. Burroughs and Ferrell-Ross. Defendant’s contention that these documents served no useful purpose is belied by the fact that one of the issues before the trial court was whether the successor company was liable for injuries caused by products manufactured by the predecessor company. It is clear that in order for the jury to understand the corporate history, the various transactions between the companies had to be explained. The exhibits merely supported the explanation and were relevant to the issue of liability. Admittedly, the exhibits are detailed and present more information than may have been necessary. However, excerpts from those documents could have been misleading if taken out of context. Moreover, defendant has failed to explain how the specified exhibits confused the jury. Accordingly, we conclude that the trial court properly admitted exhibits 3 through 12 into evidence.

Defendant contends that the trial court erroneously sustained objections to its questioning of plaintiff’s expert, Irving Hazard, as to an employer’s duty to furnish special tools to the employees and an employer’s responsibility to retain a consulting engineer if that employer lacks the necessary expertise. Defendant claims that these questions were directly related to its defense that ADM’s negligence was the proximate cause of plaintiff’s accident.

Even though a plaintiff’s negligence is generally not an issue in a products "liability case, evidence relating to the plaintiff’s conduct is admissible to establish defendant’s theory of defense that the machine was not unreasonably dangerous and the sole proximate cause of plaintiff’s injury was the negligent conduct of plaintiff’s employer. (Sanchez v. Black Brothers Co. (1981), 98 Ill. App. 3d 264, 423 N.E.2d 1309.) In Sanchez, plaintiff filed a product liability action against defendant to recover damages for injuries sustained to his right hand while attempting to clean a glue-spreading machine manufactured by defendant. A jury returned a verdict for defendant. On appeal, plaintiff argued that evidence of plaintiff’s conduct in using the machine at the time of the occurrence and a set of 11-point cleaning instructions should not have been admitted in a product liability action. The Sanchez court stated that the liability issue in a product liability action “cannot be tried in a vacuum,” and that the jury should be fully informed as to the circumstances surrounding the incident. (98 Ill. App. 3d at 266.) Moreover, the Sanchez court stated that both parties have a right to present evidence to support their theories and if defendant established its theory, it would escape liability. Accordingly, the court held that defendant’s evidence as to plaintiff’s conduct and as to the cleaning instructions was properly admitted.

In the present case, during cross-examination of Irving Hazard, defendant queried Hazard extensively about ADM’s compliance with OSHA requirements as to warning signs on the machinery. Even after a sidebar and a further objection by plaintiff, the court allowed defendant to continue that line of questioning. However, when defendant asked Hazard whether an employer has a duty to furnish special tools to an employee so that' he does not have to stick his hand into the machine, the court sustained plaintiff’s objection, stating that defendant cannot delegate responsibility. Defendant then asked if special tools would have prevented the accident. Hazard replied that there was no guarantee that they would. Although the question of ADM’s duty may have been relevant to defendant’s theory of defense, in light of the fact that special tools were not shown to have been able to prevent the accident, defendant was not prejudiced by the court’s limitation on its question as to the employer’s duty to supply special tools.

In addition, defendant claims that it should have been allowed to question Hazard as to an employer’s obligation to retain a consulting engineer. During cross-examination, defendant asked Hazard if the manufacturer had a duty to instruct someone as to how to wire a machine. Hazard replied:

“The people like Farrell-Ross [sic] that sell a machine without a control have to be able to control what is going to be done with their machine in terms of safety. The only way they can control that is [to] issue instructions, wiring diagrams, parts lists and whatever is necessary to guarantee that an appropriate control will be put on the machine in a proper place.
If they do not have the expertise to do that, then they can contract to have a consulting engineering firm come right into their firm, work with them in understanding their machine and develop a control for their machine which can be packaged and sold with the machine or develop a set of instructions, drawings and whatnot to insure that other people down the line on the consuming end will be able to issue these instructions to their electrical contract people and say, ‘This is what has to be done. You’ve got to put a switch here.’ ”

Defendant then asked Hazard if he found any problem with a user such as ADM hiring a consulting firm. The court sustained plaintiff’s objection.

Again, defendant has failed to indicate how the court’s ruling on this objection prejudiced his defense. Further, whether or not Hazard thought there “would be a problem” with ADM’s hiring a consultant had no relevance to either party’s legal theory. Accordingly, the trial court properly sustained plaintiff’s objections to defendant’s line of questioning directed to Irving Hazard.

Defendant next contends that the trial court erred in denying defendant’s instructions as to assumption of risk. Defendant cites to three proposed instructions it had presented to the trial court, which were subsequently refused, and claims that the trial court erred in not allowing it to instruct the jury as to assumption of risk. Defendant’s argument has no basis in fact. Instructions 1, 3, and 4, to which defendant refers, do not address assumption of risk. Instead, they refer to contributory negligence, which has no relevance to a product liability cause of action. Accordingly, we decline to further address this issue.

Next, defendant contends that the following comments by plaintiff’s counsel during closing argument were prejudicial:

“You are going to represent the community, a conscience of the community, and the- justice of the community is in your hands. * * *
God bless you all.”

Defendant does not indicate what the prejudicial effect of the latter comment was, but, in reliance on Williamson v. City of Springfield (1984), 125 Ill. App. 3d 361, 465 N.E.2d 1035, defendant claims that the comments concerning the “community” create a prejudicial “ripple effect of the verdict.” In Williamson, defense counsel commented to the jury:

“ ‘Now, exercising your duties as jurors and in circumstances like this, could not be — could not be more difficult, but it’s the courage to do this that makes a difference. When you throw a pebble into a pond, the ripples go out and affect a lot of people, a lot of other cases, and I assure you that your verdict in this case will affect a lot of other cases. So, it’s just not acting in terms of one woman, it’s acting in terms — .’ ” 125 Ill. App. 3d at 365.

Without analysis, the Williamson court held that the aforementioned comment was improper and, because the cause was being remanded for a new trial on other grounds, stated that the comment should be avoided upon remand. However, the court did not find that the comment itself constituted reversible error.

Because the comment in the present case is not at all analogous to that in Williamson and defendant has failed to show how either of the comments to which it objects was prejudicial, we conclude that the trial court did not err in overruling defendant’s objections.

Defendant further argues that the trial court erred in allowing plaintiff, after he had rested his case, to testify that the photographs taken in 1985 were photographs of the Ross cracking mill as it existed in 1978. Defendant contends that the photographs should not have been admitted into evidence because no proper foundation had been laid that the Ross cracking mill was in essentially the same condition at the time of the accident that it was in at the time of the photographs. In their *briefs, neither party cites to pages in the record where the photographs had been introduced into evidence. Accordingly, it is not clear to this court whether objections had been made to their admissibility or whether a foundation had been laid. A court of review is not obligated to search the record for evidence on which to base reversal, and, unless reference is made to those parts of the record supporting reversal, the argument will not be considered. Webb v. Angell (1987), 155 Ill. App. 3d 848, 508 N.E.2d 508.

Finally, defendant contends that the comments made by the trial court during trial, the testimony as to plaintiff’s earning capacity, the trial court’s limitation on defendant’s impeachment of plaintiff and the trial court’s refusal to admit defendant’s exhibits depicting ADM’s alleged lockout procedures constituted reversible error. Defendant contends that these alleged errors “added to the prejudice created” against it during trial. In reviewing these allegations, this court is cognizant that, wide latitude must be allowed a trial judge in conducting a trial (Vinke v. Artim Transportation System, Inc. (1980), 87 Ill. App. 3d 400, 408 N.E.2d 1112), and that it is not an appellate court’s function to determine whether a record is completely free from error. Rather, the appellate court is to determine whether any error acted to prejudice the rights of a party. Foerster v. Illinois Bell Telephone Co. (1974), 20 Ill. App. 3d 656, 315 N.E.2d 63.

Regarding the trial court’s comments, defendant cites to four specific instances. First, while plaintiff’s counsel was questioning Louis Griffin, corporate secretary of Blount, Inc., as an adverse witness, about mergers and acquisitions made by the parent company, plaintiff referred to a warranty deed issued to the Ferrell-Ross division of J.R Burroughs & Sons. Defendant objected on the ground of relevancy. The trial court overruled the objection “at this time,” stating that plaintiff would connect it up. In our view, the condition of “at this time” placed upon the ruling indicates that if plaintiff did not connect it up, the trial court would sustain the objection. Although at the time of defendant’s objection, plaintiff did not specifically state that he would connect it up, it was evident from the context of the questions that plaintiff was reviewing a series of documents for the purpose of developing a chain of corporate identity. The trial court’s comment merely recognized the purpose and reserved an opportunity to change its ruling in the event the item proved to be irrelevant.

Second, defendant objects to the following question directed by the trial court to plaintiff’s expert witness, Irving Hazard, after Hazard had identified several photographs of the Ross cracking mill:

“THE COURT: When were these pictures taken, Mr. Hazard?
HAZARD: These were taken that we are referring to in ’79.
THE COURT: Were they taken by you?
HAZARD: No.
* * *
THE COURT: Was the machine in the same condition in ’85 as you see it on this picture?
HAZARD: With the exception of the name plate, it is my understanding that it was exactly the same condition, and from what I can see in the photographs, it was in the same condition.
THE COURT: All right. That’s all I’m asking for is what you see in the photographs.
HAZARD: Yes, your Honor.
[DEFENSE COUNSEL]: Judge, I still would object because those pictures — the testimony is those pictures were taken in ’79.
We still have a two-year lag between the accident and those pictures.
THE COURT: He says it’s the machine that he saw in ’85. It’s permissible.”

In our view, the trial court was merely clarifying the foundation which had been laid for the photographs and was acting within the bounds of the trial court’s role in conducting a trial.

Third, defendant objects to a comment made by the trial court to plaintiff’s counsel that he had not established the “vital matter” that the machine in question belonged to defendant. Defendant has failed to indicate how .this comment prejudiced him. Therefore, we decline to further address this allegation.

Fourth, defendant contends that the trial court improperly advised plaintiff’s counsel to use an itemized verdict so as to receive a larger verdict. During an instructions conference, the trial court asked defense counsel:

“Are you objecting to the fact that he [is] submitting a general verdict — the rules provide it should be itemized unless there are no objections on the part of defendant.”

Later, during a subsequent instruction conference, the following dialogue ensued:

“THE COURT: I have one verdict form here for the Plaintiff. You left that out. You were going to give me one that itemizes. Do you have one that itemizes now? Give me a copy of that, will you?
[DEFENSE COUNSEL]: Can I show on the record that this jury instruction was given — .
THE COURT: That’s what the rules provide.
[DEFENSE COUNSEL]: I know what the rules provide, but the Court is suggesting that we use this.
THE COURT: The Court is suggesting that we abide by the rules.”

In our view, the aforementioned indicates nothing more than the trial court’s efforts to be sure that correct procedures were followed. Further, there is no suggestion by the court that the plaintiff would be able to obtain a larger verdict if he had itemized.

Regarding defendant’s efforts to impeach plaintiff’s testimony at trial, defendant argues that the trial court erroneously prevented defendant from impeaching plaintiff’s testimony regarding what tasks he was able to perform since the accident and whether he had removed the screen guard from the machine at the time of the accident. In his brief, defendant fails to provide page citations in the record to direct this court to defendant’s efforts at impeachment and also fails to provide any further argument than a mere statement that the trial court had erred and a citation supporting the legal principle that “impeachment is not restricted alone to finding flat contradictions.” As previously stated, it is not the function of this court to search the record to find grounds to reverse the trial court. Accordingly, the argument will not be considered. For the same reason, defendant’s allegation that the trial court erred in allowing testimony as to plaintiff’s earning capacity if he had not been injured, will not be considered. Webb v. Angell (1987), 155 Ill. App. 3d 848, 508 N.E.2d 508.

With respect to defendant’s contention that the trial court erred in refusing to admit evidence as to lockout procedures ADM had available, defendant relies on Pettigrew v. National Accounts System, Inc. (1966), 67 Ill. App. 2d 344, 213 N.E.2d 778. However, Pettigrew addresses a constitutional due process issue regarding a covenant not to compete found in an employment contract and has no relevance to the case at bar. Accordingly, because defendant has once again failed to provide a citation to the record indicating the erroneous ruling or to provide relevant legal argument, we decline to further consider this issue. Bass v. Washington-Kinney Co. (1983), 119 Ill. App. 3d 713, 457 N.E.2d 85.

The remaining errors alleged by defendant, i.e., plaintiff’s alleged suggestion that defendant had to examine the machine; allowing Roscoe Warner to testify regarding another person’s deposition and the trial court’s refusal to allow defendant to cross-examine plaintiff as to his marital status, are void of legal argument and, thus, are mere contentions which do not merit consideration on review. Falkner v. Hinckley Parachute Center, Inc. (1989), 178 Ill. App. 3d 597, 533 N.E.2d 941.

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

Affirmed.

O’CONNOR and MANNING, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNARD COMBS, Defendant-Appellant.
    First District (1st Division)
    No. 1—87—0893
    Opinion filed September 17, 1990.
    Rehearing denied December 26, 1990.

      Michael J. Pelletier and Alan D. Goldberg, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and William D. Carroll, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a joint bench trial with codefendant, .Christopher Kellum, defendant, Kennard Combs, was found guilty of 12 counts of aggravated criminal sexual assault, one count of home invasion, one count of armed robbery, one count of attempted armed robbery and three counts of aggravated unlawful restraint. (Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 14, 12 — 11, 18 — 2, 8 — 4, 10 — 3.1, respectively.) He was sentenced to concurrent prison terms of 55 years, 12 years and 12 years for aggravated criminal sexual assault, armed robbery and home invasion and to a consecutive prison term of six years for attempted armed robbery. No sentence was entered on the three counts of aggravated unlawful restraint. On appeal, defendant contends that: (1) defense counsel’s admission of defendant’s guilt during closing argument constituted ineffective assistance of counsel; (2) the trial court erroneously found defendant guilty of the three counts charging him with aggravated criminal sexual assault predicated on the act of inserting his penis in the victim’s vagina; (3) the convictions of six of the remaining nine counts of aggravated criminal sexual assault should be vacated on the' ground that the nine counts were predicated on only three acts; and (4) the cause should be remanded for resentencing. For the following reasons, the judgment is affirmed in part and vacated in part; and the sentences are affirmed.

The record sets forth the following facts relevant to this appeal. At trial, the victim, D.C., testified that on May 27, 1986, she and her six-year-old daughter were in their third-floor apartment when D.C. heard someone outside the building call her name. When she looked out of her front window, Curtis, a man who worked across the street, asked her to come down and to move her car so that he could drive his truck through. D.C. told her daughter to wait in the apartment while she ran outside to move the car. She left the door to her apartment open so that her daughter would not be afraid.

When D.C. got to the first-floor landing, defendant was standing there, pointing a gun at her face. She then looked toward the ground floor and saw James Lurry, who also lived in the building, lying face-down on the floor while Christopher Kellum stood over him, holding a knife. Defendant told D.C. not to say anything or he would blow her head off. He then pushed her, face first, against the wall. She was standing there with the side of her face pressed against the wall when Kellum came over to her, lifted up her dress, tore off her underwear, and forced her to lie facedown on the first-floor landing. While in that position, D.C. felt a knife on the right side of her neck as Kellum got on top of her and inserted his penis into her vagina.

When Kellum got up, he asked her where she lived. D.C. hesitated at first, but when defendant walked over to her, grabbed her by the back of her hair and repeated the question, she told them that she lived on the third floor with her child. With the gun still pointed at her, defendant told Kellum they were going to D.C.’s apartment. Lurry got up and the four of them went up the stairs.

When they reached D.C.’s apartment door, defendant pushed D.C. into the apartment and told her to sit on the couch with her daughter and Lurry. Kellum then shut the apartment door and locked it. Defendant continued to point the gun at her. One of the men then ordered D.C., her daughter and Lurry to put either sheets or towels over their heads. After they did so, D.C. and her daughter pulled their covers down a little and watched defendant and Kellum as they ransacked the apartment and saw Kellum unhook her VCR and put video tapes into her red Nike gym bag. Defendant then asked D.C. for some money. When she said that she did not have any, he threatened that if they found any, he would blow their heads off. D.C. then told defendant that she had $5 in her purse and $15 in her coat pocket.

While still pointing the gun at D.C., defendant told her to go into the bathroom with him. Once in the bathroom, he told her to bend over the tub and he pulled the back of her dress up and rubbed all over her. He then told her to get up and to sit back down on the couch. When she sat on the couch, defendant sat on the table in front of her and put her legs on top of his, raised her dress, pulled out her tampon, began rubbing the gun barrel against her vagina, and then inserted the barrel into her vagina. After he took the barrel out, defendant whispered something to Kellum and told D.C. to go into the kitchen.

Defendant remained in the living room, and Kellum, armed with a knife, went into the kitchen with D.C. Kellum then pushed D.C. against the wall and attempted to insert his penis into her vagina. When he was unsuccessful, Kellum sat down on a chair and told D.C. to sit on his lap. When he was still unsuccessful at penetrating D.C., Kellum told her to bend over the table. When she did so, he inserted his penis into her vagina and started moving. At that point, defendant came into the kitchen and said to Kellum, “Let’s go.” The two men then left.

When D.C. heard the front door shut, she ran into the living room, noticed that Lurry had also left, and locked the door. She then felt dizzy and fell to the floor. The next thing she remembered was her two brothers and mother knocking on her apartment door. The police arrived a short time later and D.C. was taken to the hospital for an examination. D.C. testified that her VCR, video tapes, Walkman radio and leather work-out gloves had been taken.

On June 2, 1986, while with her two brothers, Robert and Demetri, and a friend, D.C. stopped at her mother’s house where her daughter had been playing in the front yard. Her daughter told her that she had seen one of the assailants across the street. D.C. told her brothers and her friend and they all got into the friend’s car and drove around looking for the assailant. At 72nd and Halsted, D.C. saw Kellum. She told her friend to drive around and try to find a police car. When they could not find a police car in the neighborhood, they drove to the police station. However, by the time they returned to 72nd and Halsted with the police, Kellum was no longer in sight. D.C., her brothers, and her friend continued to drive around, looking for Kellum. Eventually, they spotted both Kellum and defendant and alerted the police. The following day, D.C. viewed a lineup at police headquarters and identified defendant and Kellum as the assailants. The testimony of D.C.’s daughter corroborated D.C.’s version of the events that had occurred in the apartment living room. The daughter identified both defendant and Kellum as the assailants.

Charles Bailey, D.C.’s first-floor neighbor, then testified that on May 27, 1986, as he was approaching the apartment building, he happened ta look up and saw a male looking out the window of D.C.’s third-floor apartment. When he entered the building, he heard people running down the stairs. Once inside his apartment, he looked out the window and saw two men walking out of the building, carrying bags. One was carrying a red Nike gym bag and the other was carrying a gray plastic bag.

Bailey then went outside to watch the men. By the time he got outside, Kellum and defendant were almost to the alley. When they turned around and saw Bailey, they started to run toward the alley and then turned and ran down the alley. Bailey continued to follow them, and at the alley entrance, he saw D.C.’s brother, Demetri. He told Demetri that the two men had just come out of his sister’s apartment building. Both Bailey and Demetri then ran down the alley after Kellum and defendant. Defendant turned around once and shot at them. At the end of the alley, Bailey found the red Nike bag. He picked it up and gave it to a cousin of his, telling her to take it to D.C. He then saw a male walking out of the alley, carrying a VCR. When Bailey confronted the male and asked him where he got the VCR, the male told him that he had found it in the alley. Assuming that it belonged to D.C., Bailey took the VCR to her apartment. On June 3, 1986, Bailey identified defendant and Kellum in a lineup at police headquarters, and later identified them at trial.

Next, Demetri, D.C.’s brother, testified that on May 27, 1986, approximately 8:30 p.m., he was standing at the corner of 74th and Union, talking to some friends, when he saw two men running toward him from D.C.’s apartment building. One was carrying a red Nike gym bag and the other was carrying a gray plastic bag. Recognizing the red gym bag as belonging to his sister, Demetri ran to the alley where he met. Bailey and then the two of them ran after defendant and Kellum. While Demetri and Bailey were chasing defendant and Kellum down the alley, defendant turned around and shot at them. By the time Demetri reached the end of the alley, he had lost sight of the assailants. He then went to his sister’s apartment, where he found her lying on the floor, crying hysterically, saying that she had been robbed and raped. The apartment had been ransacked. At trial, Demetri identified defendant and Kellum as the two men he had chased.

Demetri further testified as to the events of June 2, 1986, when he, D.C., his brother, Robert, and his friend, Tim, were riding in Tim’s car, looking for the assailants. Demetri’s testimony as to the events of that day corroborated D.C.’s testimony. In addition, the testimony of D.C.’s brother, Robert, also corroborated the others’ testimony as to the events of June 2,1986.

Detective Michael Kill of the Chicago police department then read defendant’s statement into the record. In his statement, defendant stated that the “stickup” had been Kellum’s idea; that Kellum had raped D.C.; that they both had taken money from D.C.; that Kellum had taken the VCR and tapes; that he had rubbed D.C.’s vagina with the barrel of his gun; and that he had shot once at the two males who had chased them down the alley.

When the State rested its case, defense counsel moved for a directed verdict, which the trial court denied. Defense counsel then rested its case. Following closing arguments, the trial court entered its verdict. Defense counsel’s post-trial motion for a new trial was subsequently denied and a sentencing hearing was held, after which defendant was sentenced to concurrent prison terms of 55 years, 12 years and 12 years for aggravated criminal sexual assault, armed robbery, and home invasion, respectively, plus a consecutive six-year prison term for attempted armed robbery. Defendant’s timely appeal followed.

Initially, defendant contends that defense counsel’s admission of defendant’s guilt during closing argument constituted ineffective assistance of counsel during a critical stage in the proceedings and rendered the trial nonadversarial, thereby necessitating reversal without any requirement that prejudice be shown. Specifically, defendant refers to the following comments made by defense counsel during closing argument:

“I have been struggling since this case’s inception to come up with a defense, and I have concluded that I have not come up with a salient defense because the crime was committed so poorly. Evidence was so overwhelming, the testimony of [D.C.], things that happened are almost irrefutable, Judge. * * *
Judge, in the case such as this, your Honor, it is quite difficult for me to distinguish in my presentation between an argument which is a true closing argument and an argument in mitigation. I will attempt to do so, but if I transgress and get into mitigation, I will definitely try to limit myself. I have the feeling I think that this situation is analogous to my jumping from a garage as a descent to the bottom of that void there.
As the Court knows, it is a horrible case. * * *
We have evidence that at some point at the conclusion of this, Kennard Combs and Christopher Kellum had sexual intercourse in the kitchen before they left. Kennard Combs did not touch her at the beginning of this. He did not touch her at the end. The only instance of aggravated sexual assault would be the touching as to Kennard Combs.
I know that under the accountability theory, Mr. Kennard Combs would be responsible for everything that Christopher Kellum did at this incident.”

In response, the State argues that defense counsel’s closing statements were an attempt to mitigate defendant’s participation in the incident and that the record indicates that defense counsel had conducted an able and vigorous defense despite the overwhelming evidence against his client.

As a general rule, a defendant alleging ineffective assistance of counsel must satisfy the two-pronged test set forth in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (the Strickland test), which requires that defendant prove: (1) his counsel made such serious errors and performed so deficiently that he was not functioning as “counsel” guaranteed by the sixth amendment of the United States Constitution; and (2) his counsel’s deficiencies prejudiced him so as to deprive him of a fair trial. However, if defendant can establish per se ineffective assistance of counsel by showing that defense “counsel entirely fail[ed] to subject the prosecution's case to a meaningful adversarial testing,” prejudice will be presumed and he need not satisfy the Strickland test. People v. Johnson (1989), 128 Ill. 2d 253, 538 N.E.2d 1118.

In Illinois, proof of per se ineffective assistance of counsel has evolved from simply a concession by defense counsel of defendant’s guilt (People v. Hattery (1985), 109 Ill. 2d 449, 488 N.E.2d 513) to a requirement that defense counsel must have “entirely failed to subject the prosecution’s case to meaningful adversarial testing.” (People v. Johnson (1989), 128 Ill. 2d 253, 270, 538 N.E.2d 1118.) In Hattery, defendant was charged with murder and pleaded not guilty. In an attempt to avoid the death penalty, defense counsel admitted defendant’s guilt in his opening statement to the jury and attempted to establish on cross-examination that defendant had been compelled to kill his victims. Defendant was convicted of murder and sentenced to death. On direct appeal to the supreme court, the court found that the admission of defendant’s guilt by his counsel was unequivocal and “totally at odds with defendant’s earlier plea of not guilty.” (Hattery, 109 Ill. 2d at 464.) As a result, defense counsels’ conduct had not subjected the prosecution to the meaningful adversarial testing required by the sixth amendment.

Subsequently, in People v. Johnson (1989), 128 Ill. 2d 253, 538 N.E.2d 1118, the supreme court narrowed the Hattery holding and held that a concession of guilt by defense counsel does not constitute per se ineffectiveness of counsel. Rather, defendant must first prove that his counsel “entirely failed to subject the prosecution’s case to meaningful adversarial testing.” (128 Ill. 2d at 270.) In Johnson, defendant was indicted for one count of intentional murder, two counts of knowing murder, three counts of felony murder, two counts of attempted murder, seven counts of armed violence, four counts of aggravated battery, three counts of armed robbery, one count of theft, and one count of unlawful restraint, stemming from an incident in which one man was killed, two others were wounded and personal property was taken. During his opening statement, defense counsel stated that the issue was not whether defendant had committed a murder, but whether he had committed the murder during the course of a felony. This defense strategy was based on defense counsel’s belief that defendant would not be eligible for the death penalty if the murder had not occurred during the course of a felony. Defense counsel’s statement as to what the evidence would show was consistent with defendant’s confession and his testimony at the sentencing hearing.

On behalf of the State, two of the victims, co-workers of defendant, testified as to the events leading up to the shootings. In addition, the State introduced into evidence defendant’s written statement, in which he admitted shooting the victims and taking their wallets. Although defense counsel presented no evidence, he did cross-examine each of the State’s witnesses in an attempt to prove that defendant had not entered the work premises with the intent to rob any of the victims. Subsequently, during closing argument, defense counsel stated, “Your Honor, we did admit in our opening statement that Brian Johnson committed murder,” but that the State had failed to prove felony murder. Defendant was found guilty of all charges and sentenced to death. On direct appeal to the supreme court, defendant argued, inter alia, that he had been deprived of effective assistance of counsel.

In holding that defendant had not been denied effective assistance of counsel, the supreme court stated:

“In situations where there is overwhelming evidence of guilt and no defense, if counsel contests all charges he is liable to lose credibility with the trier of fact when it comes to charges where a legitimate defense exists. Though concession of the murder was made, going to trial did preserve for the defendant matters that a guilty plea necessarily would have waived. Counsel did not concede each element of attempted murder, felony murder, armed violence, aggravated battery, armed robbery, theft and unlawful restraint.” (128 Ill. 2d at 270.)

The Johnson court concluded that defense counsel had not been per se ineffective because he had asserted a theory of defense and had not “entirely failed” to subject the prosecution’s case to meaningful adversarial testing. Therefore, because the presumption of prejudice did not arise, defendant had to establish prejudice pursuant to the Strickland test in order to prove ineffective assistance of counsel. In applying the Strickland test, the court further stated that, “[c]laims of ineffective assistance of counsel may be disposed of on the ground that the defendant suffered no prejudice from the claimed errors, without deciding the first prong, whether the errors were serious enough to constitute less than reasonably effective assistance.” 128 Ill. 2d at 271.

Shortly after People v. Johnson was decided, the supreme court decided People v. Chandler (1989), 129 Ill. 2d 233, 543 N.E.2d 1290, in which it held that per se ineffective assistance of counsel had not occurred and applied the Strickland test to determine whether defendant had been prejudiced by defense counsel’s actions. Unlike in Johnson, the Chandler court concluded that defendant had been prejudiced and, thus, had been denied effective assistance of counsel. The Chandler court reached its decision based on the following facts:

“Defendant was charged with four counts of murder, including felony murder ***. Counsel’s apparent strategy was to convince the jury, in closing argument, to believe defendant’s denial, in his statements to the police, -of killing the victim. This strategy was the basis of counsel’s deficiency. Counsel did not attempt to develop a theory of innocence during his cross-examination of several witnesses, and did not cross-examine several key witnesses at all. Moreover, counsel presented no witnesses on behalf of the defense and failed to call defendant to the stand even though he had stated in his opening argument that defendant would testify and tell the jury what he did and did not do. Defense counsel apparently mistakenly believed that the jury could find defendant not guilty of murder if they believed that he had not inflicted the fatal wounds to the victim. Indeed, defense counsel concluded his closing argument by telling the jury, T don’t think if you take a realistic view of this that you can find [defendant] guilty of murder.’ The jury, however, having been instructed on both felony murder and accountability, had no choice but to find defendant guilty of murder, residential burglary and arson.
The jury could have returned a not-guilty verdict on the charged offenses only if it had chosen to disregard the jury instructions. Counsel had admitted that defendant was telling the truth in his statements to the police, and that he had broken into the victim’s house. The ultimate error of counsel’s strategy, however, is revealed by the fact that even if counsel had succeeded in persuading the jury that defendant did not stab the victim, the jury was still instructed to find defendant guilty of murder under the law of accountability or felony murder.” 129 Ill. 2d at 246-47.

In summation, based upon .Johnson and Chandler, a defendant can establish per se ineffectiveness of counsel only if the facts establish that defense counsel had failed entirely to subject the prosecution’s case to meaningful adversarial testing. If defendant fails to do this, he must satisfy the Strickland test by proving that defense counsel’s deficiencies prejudiced him so as to deprive him of a fair trial.

In the present case, during closing argument, defense counsel admitted that there had been home invasion, kidnapping, and unlawful use of a weapon. However, he argued that defendant could not be found guilty of aggravated criminal sexual assault or attempted murder. All of the offenses admitted to during closing argument had also been admitted to by defendant in his statement which had been read into evidence. Therefore, those concessions by defense counsel do not by themselves establish per se ineffectiveness of counsel. (People v. Chandler (1989), 129 Ill. 2d 233, 543 N.E.2d 1290.) Further, the fact that defense counsel argued against the charges of aggravated criminal assault and attempted murder also removes the facts from the per se rule on the ground that defense counsel had not failed entirely to present a meaningful adversarial defense. People v. Johnson (1989), 128 Ill. 2d 253, 538 N.E.2d 1118.

Having determined that defense counsel had not been per se ineffective, it is necessary to review the record to determine whether the claimed errors prejudiced defendant. A review of the evidence indicates that D.C., her daughter, her two brothers and Charles Bailey identified defendant as one of the perpetrators. Descriptions of the bags carried by the perpetrators from D.C.’s apartment were corroborated by D.C., her brother and Charles Bailey. The items taken from D.C.’s apartment were found in the alley through which defendant and Kellum had escaped. Both Charles Bailey and Demetri testified that defendant had shot at them as they ran through the alley. In a signed statement, defendant admitted that he had pointed a gun at D.C. on the first-floor landing of her apartment building; that he had touched D.C.’s vagina with the barrel of his gun; that he had taken money from D.C.; and that he had fired his gun at two males who were chasing him through the alley. The evidence in this case is so overwhelming as to defendant’s guilt that there is no reasonable probability that defendant would not have been found guilty in the absence of defense counsel’s statements. Therefore, we find that defendant has failed to establish that he had been prejudiced by defense counsel’s statements.

Moreover, we find that defendant’s reliance on People v. Williams (1989), 192 Ill. App. 3d 304, 548 N.E.2d 738, is misplaced. In Williams, this court held that defense counsel’s representation of defendant was per se ineffective. Unlike defense counsel in the present case, defense counsel in Williams waived opening and closing statements, did not cross-examine any of the State’s witnesses and failed to obtain a ruling on pre-trial motions. As a result, the Williams court concluded that defense counsel had failed to subject the prosecution’s case to meaningful adversarial testing. By contrast, in the present case, defense counsel vigorously cross-examined the State’s witnesses and took the position during his closing statement that the State had failed to prove defendant guilty of attempted murder and aggravated criminal assault.

Next, defendant contends that the trial court erroneously found him guilty of counts 19, 21, and 23, charging aggravated criminal sexual assault predicated on defendant’s act of inserting his penis into D.C.’s vagina, and that the convictions of six of the remaining nine counts of aggravated criminal sexual assault should also be vacated on the ground that the nine counts were based on only three acts. The State concedes that there was no evidence presented to support the charges brought pursuant to counts 19, 21, 23 and, therefore, agrees that the convictions for these counts should be vacated. The State also concedes that six of the remaining nine counts of aggravated criminal sexual assault should be vacated pursuant to the “one act, one crime” rule set forth in People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838. Accordingly, by agreement of the parties, counts 19, 21 and 23 are vacated for lack of evidence and six of the remaining nine counts of aggravated criminal sexual assault are vacated on the ground that the nine counts were based on only three acts.

Finally, defendant contends that because 9 of the 12 counts of aggravated criminal sexual assault are to be vacated, the cause must be remanded for resentencing on the remaining counts. In response, the State argues that in imposing the sentences, the trial court focused on the heinous and brutal nature of defendant’s actions and not the number of counts. Therefore, the sentences should be affirmed.

In reaching a determination as to whether a cause should be remanded for resentencing when less than all of the counts of an offense have been reversed, the reviewing court must consider whether the trial court may have been influenced by the number of counts when it imposed sentencing. (See People v. Alcazar (1988), 173 Ill. App. 3d 344, 527 N.E.2d 325.) In the present case, in imposing the sentences upon defendant, the trial court stated:

“Having considered all the facts and the circumstances in this case, the presentence investigation report, the facts of the case which I have reread, the conduct, you, Mr. Combs, the conduct that was cruel, brutal and sadistic. You acted as an animal, a dangerous animal.
And in my judgment that you should not be free to society. * * *
Further find that you are eligible for an extended term. That your conduct constituted exceptional brutal and heinous behavior, indicative of wanton cruelty.”

In light of the facts and circumstances of this case, as well as the foregoing statement by the trial court, we are not persuaded that the exclusion of the nine counts vacated on appeal would have altered the trial court’s sentencing.

Based upon the aforementioned, the judgment of the trial court is vacated as to nine counts of aggravated criminal sexual assault; affirmed as to the remaining counts of aggravated criminal sexual assault, home invasion, attempted armed robbery, armed robbery and aggravated unlawful restraint; and the sentences imposed are affirmed.

Affirmed in part; vacated in part.

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

      Codefendant Kellum is not a party to this appeal.