author: JUSTICE RIZZI

text:
    YOLANDA CARDIEL, Plaintiff-Appellee, v. MARVIN WARREN, Defendant (Anne Tesluk, Indiv. and d/b/a The Cycle Inn, et al., Defendants-Appellants).
    First District (3rd Division)
    No. 1—87—1786
    Opinion filed September 29, 1989.
    Modified on denial of rehearing December 29, 1989.

      Heineke, Burke, Healy & Bodach and Law Offices of Sherwin Green-berg, both of Chicago (Mary Beth O’Brien, John C. Healy, and Michael F. Burns, of counsel), for appellants.
    James T. J. Keating and Elizabeth Davis, both of Chicago, for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendant Anne Tesluk, individually and d/b/a The Cycle Inn (Tesluk), appeals from a judgment which was entered in favor of plaintiff, Yolanda Cardiel (Cardiel). Codefendant John Pacocha, as special administrator of the estate of Mary Jaskiewicz (Pacocha), joins Tesluk and appeals from the same judgment. Pacocha argues that the trial court erred in (1) admitting into evidence the answers of Mary Jaskiewicz (Jaskiewicz) that were given in response to written interrogatories and during an oral deposition; (2) denying his motion for a judgment notwithstanding the verdict and (3) denying his motion for a new trial. We reduce the judgment from $15,000 to $300 and affirm the judgment as reduced.

Cardiel, a pedestrian, was injured when struck by an automobile driven by defendant Marvin Warren (Warren). Cardiel brought suit against Warren, Tesluk and Jaskiewicz. The actions against Tesluk and Jaskiewicz were brought pursuant to the Illinois Dramshop Act (Ill. Rev. Stat. 1985, ch. 43, par. 135) and alleged that defendants caused the intoxication of Warren. After the lawsuit was filed, Tesluk’s insurance carrier, Kent Insurance Company, was declared insolvent. As a result, the Illinois Insurance Guaranty Fund (the Fund) assumed all responsibility for pending and future litigation and/or claims against persons insured with Kent Insurance Company and undertook the defense of Tesluk in the instant matter.

Warren was an uninsured motorist. Prior to judgment, Cardiel sought and was awarded damages under the uninsured motorist coverage provided by her insurer. Cardiel received $14,700 from her insurer and assigned to them her right of recovery as well as the proceeds of any settlement recovered for bodily injuries. Tesluk made a pretrial motion to dismiss Cardiel’s lawsuit pursuant to the “covered claim” and “non-duplication of recovery” provisions of the Illinois guaranty fund act. The trial court denied the motion.

Prior to trial and pursuant to discovery, Jaskiewicz provided answers to written interrogatories. The pertinent questions and answers were as follows:

“QUESTION: State the full name and last known address of the manager of the dramshop, commonly known as Jasmar Lounge, on April 15th, 1981?
ANSWER: Mary Jaskiewicz.
QUESTION: State the full name and last known address of any and all bartenders on duty and operating the dramshop, commonly known as Jasmar Lounge on April 15th, 1981[.]
ANSWER: Mary Jaskiewicz.”

In addition, Jaskiewicz provided the following answers during a pretrial oral deposition:

“QUESTION: Did you operate the Jasmar Lounge?
ANSWER: Yes, me, only me.
QUESTION: There was no one else who operated it with you?
ANSWER: No.
QUESTION: So when you were at the 2700 Chicago Avenue Jasmar Lounge, you were the only employee, is that right?
ANSWER: Yes.”

Jaskiewicz died before trial, and Pacocha, as administrator of her estate, undertook her defense in this matter. At trial, Cardiel moved to admit the above-quoted questions and answers. The trial court allowed the questions and answers to be admitted into evidence over Pacocha's objection.

Warren testified at trial that on April 15, 1981, at approximately 3:30 p.m., he went to the Jasmar Lounge located at 2700 Chicago Avenue, Chicago, Illinois, drank two shots of Seagrams 7 and purchased a half-pint of whiskey to go. Warren further testified that, thereafter, he was involved in an automobile accident on the 4000 block of West Armitage. Cardiel was injured as a result of the accident.

At the close of evidence, a jury found for Cardiel and against defendants Warren, Tesluk and Pacocha in the amount of $31,048.45. The verdict against Tesluk and Pacocha, the two dramshop defendants, was reduced to the total statutory limit of $15,000.

Tesluk filed a post-trial motion requesting that the court rule that pursuant to provisions of the Fund, Cardiel be ordered to satisfy her judgment from defendant Pacocha, who was insured by a solvent carrier, or in the alternative, that the $15,000 verdict against Tesluk be reduced to the amount of $300, the difference between the $15,000 statutory recovery limit of the Dramshop Act and the $14,700 paid to Tesluk by her uninsured motorist carrier. The trial court denied Tesluk’s motion. Pacocha filed a post-trial motion for a judgment notwithstanding the verdict and a motion for a new trial. The trial court denied both motions. This appeal followed.

Tesluk argues that the provisions of the Insurance Code which govern the Fund prohibit Cardiel from recovering from the Fund or Tesluk the $14,700 bodily injury payment which has been assigned to Cardiel’s uninsured motorist insurance carrier. We agree.

The Fund is a not-for-profit association created by the Illinois legislature to limit the impact on the public, claimants and policyholders, of losses arising out of insurer insolvencies. (Ill. Rev. Stat. 1985, ch. 73, par. 1065.82.) The Fund limits its obligations only to those claims falling within the statutory definition of a “covered claim.” The “covered claim” provisions provide in pertinent part:

“(b) ‘Covered claim’ does not include:
* * *
(ii) any claim for any amount due any *** insurer *** as subrogated recoveries or otherwise. No such claim held by a[n] *** insurer *** may be asserted in any legal action against a person insured under a policy issued by an insolvent company other than to the extent such claim exceeds the Fund obligation limitations set forth in Section 537.2 of this Code.” Ill. Rev. Stat. 1985, ch. 73, par. 1065.84—3.

We believe that the wording of the statute makes it clear that the legislature did not want the assets of the Fund depleted to reimburse solvent insurance companies for payments made to claimants or their insureds under policies for which they received a premium. It is also clear that the legislature intended to protect individual insureds of the insolvent company from claims for reimbursement by the solvent insured. Therefore, it would counteract the purposes of the Fund to allow a solvent insurer to be reimbursed by proceeds from the Fund. Pierre v. Davis (1987), 165 Ill. App. 3d 759, 761, 520 N.E.2d 743, 744.

In the present case, Cardiel’s uninsured motorist carrier has been assigned her entire interest in any judgment paid as a result of her successful litigation against Tesluk. Because of this assignment, $14,700 of the $15,000 judgment entered against Tesluk is an amount due an insurer as subrogated recovery. Thus, pursuant to the provisions governing the Fund, that amount is not a “covered claim” and therefore cannot be recovered from the Fund or Tesluk. However, to the extent that the judgment against Tesluk exceeds the amount paid to Cardiel by her uninsured motorist carrier, Cardiel is entitled to recover the excess from Pacocha or the Fund. (Pierre, 165 Ill. App. 3d at 761.) Therefore, Cardiel is entitled to collect $300 (which represents the difference between the $15,000 judgment and the $14,700 sum paid by her uninsured motorist carrier) from Pacocha or the Fund. Therefore, the judgment against Tesluk must be reduced to the amount of $300.

Pacocha initially argues that the trial court erred in admitting into evidence Jaskiewicz’s answers taken during pretrial discovery. It is Pacocha’s contention that the answers were irrelevant to the issue of whether or not Jaskiewicz served or sold alcohol to Warren. We disagree.

The supreme court rules provide that answers given in discovery depositions may be used as admissions made by a party or by an officer or agent of a party in the same manner and to the same extent as any other admission made by that person. (107 Ill. 2d R. 212(a)(2).) The rules also provide that answers to interrogatories may be used in evidence to the same extent as a discovery deposition. (107 Ill. 2d R. 213(f).) Further, when relevant to issues in the case, admissions by a party are admissible as substantive evidence of the truth of the statements made or of the existence of any facts which they have a tendency to .establish. Security Savings & Loan Association v. Commissioner of Savings & Loan Associations (1979), 77 Ill. App. 3d 606, 610, 396 N.E.2d 320, 323; Doherty v. Kill (1986), 140 Ill. App. 3d 158, 162, 488 N.E.2d 629, 632.

In the present case, Warren testified that on April 15, 1981, he purchased and consumed liquor at the Jasmar Lounge. Jaskiewicz’s answers to pretrial discovery questions revealed that on that date, she was on duty as the manager, bartender and sole employee of the Jasmar Lounge. However, at trial, Pacocha took the position that Jaskiewicz did not serve alcohol to Warren on that date. Under these circumstances, the pretrial discovery admissions were clearly inconsistent with Pacocha’s position at trial, and they were relevant to the issue of whether Jaskiewicz served alcohol to Warren. (See Mortell v. Insurance Co. of North America (1984), 120 Ill. App. 3d 1016, 1028, 458 N.E.2d 922, 930.) Therefore, the trial court properly allowed the admission of Jaskiewicz’s pretrial discovery admissions as substantive evidence. The admissions possessed an independent evidentiary value which tended to establish a material element or issue in the litigation.

Pacocha next argues that the trial court erred in denying his motion for a judgment notwithstanding the verdict. We disagree. A motion for a judgment notwithstanding the verdict should be granted only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.

In the present case, Pacocha argues that, based on Warren’s testimony and the pretrial admissions, it cannot reasonably be inferred that Jaskiewicz gave or sold alcohol to Warren on the date in question. It is Pacocha’s position that because Warren failed to specifically state that Jaskiewicz served him liquor, it could reasonably be inferred that someone else sold him the liquor. However, as previously noted, Jaskiewicz was the sole manager, bartender, and employee present in the lounge on the date in question. Under these circumstances, we cannot say that the evidence so overwhelmingly favored Pacocha that no verdict in favor of Cardiel could ever stand. Therefore, we conclude that the trial court did not err in denying Pacocha’s motion for a judgment notwithstanding the verdict.

Finally, Pacocha argues that the trial court erred in denying his motion for a new trial. We disagree. On a motion for a new trial, a court will weigh the evidence, set aside the verdict, and order a new trial if the verdict is contrary to the manifest weight of evidence. (West v. City of Hoopeston (1986), 146 Ill. App. 3d 538, 543, 497 N.E.2d 170, 174.) Here, the verdict is not contrary to the manifest weight of the evidence, since it could reasonably be inferred from the evidence that Jaskiewicz sold liquor to Warren on the date in question. We therefore conclude that the trial court did not err in denying Pacocha’s motion for a new trial.

For all of the foregoing reasons, the judgment in favor of Cardiel and against Tesluk is reduced from $15,000 to $300 and the judgment as reduced is affirmed. The judgment in favor of Cardiel and against Pacocha is affirmed in its entirety.

Judgment reduced and affirmed.

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


source: Caselaw Access Project

author: JUSTICE LINN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL CORREA, Defendant-Appellant.
    First District (4th Division)
    No. 1—88—1558
    Opinion filed November 16, 1989.

      Barsy, Joseph & Lichtenstein, of Chicago, and Reno, O’Byrne & Kepley, P.C., of Champaign (Burton Joseph, Maaren M. Plant, and Glenn A. Stanko, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Marie Quinlivan Czech, and Angela M. Tisdale, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Following a bench trial in the circuit court of Cook County, defendant, Michael Correa, was convicted of possessing obscene magazines with the intent to disseminate them. (Ill. Rev. Stat. 1985, ch. 38, par. 11—20(a)(5).) The trial judge sentenced defendant to court supervision for one year and ordered defendant to pay $750 in fines and costs.

Defendant appeals, contending: (1) the magazines on which the State based its prosecution are not obscene; (2) the trial court erred in completely disregarding his evidence relating to the literary and artistic value of the magazines; (3) the State failed to prove beyond a reasonable doubt the essential elements of the offense; and (4) the criminal complaint was duplicitous and, therefore, void.

We reverse the judgment of the trial court.

Background

The record contains the following pertinent facts. Defendant was employed as the manager of Friendly Frank’s Comic Shop at 3427 Ridge Road in Lansing, Illinois. Youth officer investigator Anthony Van Gorp served in the Lansing police department. Officer Van Gorp’s duties included observing areas where youths congregate.

On the afternoon of November 28, 1986, Officer Van Gorp and his partner went to the comic book store. Three of the store’s four walls were filled with cartoon comic books, arranged on four rows of shelves on each wall. The cashier’s area was located on the fourth wall. The officers perused the comic books and found some that depicted scenes of sexual conduct and nudity. These comic books were not separated in one area of the store; they were found on different walls and on different levels. Van Gorp and his partner returned to the police station and reported to their supervisor.

On December 3, 1986, Officer Van Gorp returned to the comic book store, which was open for business. Van Gorp selected 15 cartoon comic books that depicted scenes of sexual conduct and nudity. At the counter, defendant examined each comic book to find its price. The total bill was $41.10, which Van Gorp paid from police department funds. Defendant accepted payment from Van Gorp and gave the officer change, a receipt, and a bag containing the comic books.

On December 10, 1986, Officer Van Gorp swore out a criminal complaint charging defendant with obscenity, in that he possessed obscene magazines with the intent to disseminate them. Listing their titles, the complaint charged that 7 of the 15 cartoon comic books which Van Gorp bought were obscene. Van Gorp and another officer then went to the comic book store and arrested defendant.

Having waived a jury, defendant was tried by the court. On January 1, 1988, the court found defendant guilty as charged. The sentencing hearing immediately followed defendant’s conviction. At the close of the hearing, the court sentenced defendant to court supervision for one year and ordered defendant to pay $750 in fines and costs. Defendant appeals.

Opinion

Books, newspapers, magazines, and motion pictures are all forms of expression normally protected by the free speech provisions of the United States and Illinois Constitutions. (U.S. Const., amend. I; Ill. Const. 1970, art. I, §4.) This protection is not affected by the fact that the material is sold for profit, or that it primarily entertains rather than communicates ideas. Leopold v. Levin (1970), 45 Ill. 2d 434, 441, 259 N.E.2d 250, 254; City of Chicago v. Festival Theatre Corp. (1980), 88 Ill. App. 3d 216, 220, 410 N.E.2d 341, 344-45, aff’d (1982), 91 Ill. 2d 295, 438 N.E.2d 159.

Further, sexuality is not synonymous with obscenity; expression which is sexually oriented, but not obscene, commands full constitutional protection as speech. (Festival Theatre Corp., 88 Ill. App. 3d at 221, 410 N.E.2d at 345; City of Rolling Meadows v. Kohlberg (1980), 83 Ill. App. 3d 10, 15, 403 N.E.2d 1040, 1044.) However, regardless of the form of expression, these constitutional guarantees do not protect obscene material. Miller v. California (1973), 413 U.S. 15, 23, 37 L. Ed. 2d 419, 430, 93 S. Ct. 2607, 2614.

In Illinois, a person commits the offense of obscenity when he or she, inter alia, creates, buys, procures, or possesses obscene material with the intent to disseminate it, with knowledge of the nature or content of the material, or recklessly failing to exercise a reasonable inspection that would have disclosed the nature or content of the material. (Ill. Rev. Stat. 1985, ch. 38, par. 11—20(a)(5).) The State carries the burden of proving beyond a reasonable doubt the existence of all the elements of the offense. People v. Thomas (1976), 37 Ill. App. 3d 320, 323, 346 N.E.2d 190, 192; 67 C.J.S. Obscenity §24 (1978).

Our statute defines “obscene” as follows:

“Any material or performance is obscene if: (1) the average person, applying contemporary adult community standards, would find that, taken as a whole, it appeals to the prurient interest; and (2) the average person, applying contemporary adult community standards, would find that it depicts or describes, in a patently offensive way, ultimate sexual acts or sadomasochistic sexual acts, whether normal or perverted, actual or simulated, or masturbation, excretory functions or lewd exhibition of the genitals; and (3) taken as a whole, it lacks serious literary, artistic, political or scientific value.” (Ill. Rev. Stat. 1985, ch. 38, par. 11—20(b).)

This statutory definition incorporates the United States Supreme Court’s three-part test of obscenity with examples. Miller, 413 U.S. at 24-25, 37 L. Ed. 2d at 430-31, 93 S. Ct. at 2615.

The statute further directs the fact finder to determine obscenity with reference to ordinary adults. However, the determination must be made with reference to children if the circumstances surrounding the dissemination of the material show that the material was directed to children. Ill. Rev. Stat. 1985, ch. 38, par. 11—20(c).

These criteria insure that no one may be convicted for the sale or exposure of obscene materials unless those materials depict or describe patently offensive “hard-core” sexual conduct specifically defined by the regulating statute or ordinance. (Miller, 413 U.S. at 27, 37 L. Ed. 2d at 432, 93 S. Ct. at 2616; Kohlberg, 83 Ill. App. 3d at 15, 403 N.E.2d at 1044; People v. Burkhardt (1973), 11 Ill. App. 3d 760, 765, 297 N.E.2d 694, 698.) Lastly, this court is required, as are all appellate tribunals, to make an independent constitutional judgment on the fact of obscenity. People v. Ridens (1974), 59 Ill. 2d 362, 373-74, 321 N.E.2d 264, 270 (and cases cited therein).

After reviewing each of the seven cartoon comic books at issue, we cannot say that they constitute hard-core obscenity. Omaha The Cat Dancer, Numbers 1, 2, and 3, are in the nature of a soap opera, with primary and secondary plots that continue in each subsequent issue. We find that the depicted nudity and sexual conduct of the cartoon characters (animals with human attributes) are part of a subplot incidental to the main storyline. The Bodyssey is a square-bound cartoon comic book with at least 52 pages, containing a complete story in the nature of a paperback novel. Again, the nudity and sexual conduct depicted in the book are subsidiary to a discernible plot. In terms of the statute, we cannot say that each of these comic books, taken as a whole, lacks serious literary or artistic value.

Bizarre Sex, Number 5, is a collection of short cartoon stories. The majority of these stories contain extremely juvenile humor in incredibly poor taste. The remainder simply make no sense. This critique applies additionally to Weirdo, Numbers 17 and 18, which are also collections of short cartoon stories. We additionally note that they are particularly bizarre. We find no serious literary or artistic value in these magazines.

Nonetheless, we cannot say that they constitute hard-core obscenity. Paraphrasing Justice Stewart of the United States Supreme Court, we shall not attempt today to further define the kinds of material embraced within the term “hard-core obscenity.” Perhaps we could never succeed in such a task. However, we know it when we see it, and Bizarre Sex, Number 5; and Weirdo, Numbers 17 and 18; in addition to all of the other cartoon comic books in this case, are not hard-core obscenity. (See Jacobellis v. Ohio (1964), 378 U.S. 184, 197, 12 L. Ed. 2d 793, 804, 84 S. Ct. 1676, 1683 (Stewart, J., concurring).) In terms of the statute, we conclude that these comic books are not patently offensive.

We are not impressed with the literary or artistic merit of the cartoon comic books before us. However, that is not the standard which we must apply. We hold that none of the cartoon comic books on which the State based its prosecution constitutes patently offensive hard-core obscenity as stated in the statute. Consequently, defendant’s conviction and sentence must be reversed.

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

Reversed.

JIGANTI, P.J., and McMORROW, J., concur.


author: JUSTICE PINCHAM

text:
    ROBERT DIGGS, Plaintiff-Appellant, v. SUBURBAN MEDICAL CENTER et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—88—2516
    Opinion filed November 17, 1989.

      Hayes & Power, of Chicago (Margaret M. Power and David A. Novoselsky, of counsel), for appellant.
    Ruff, Weidenaar & Reidy, Ltd., of Chicago (Charles E. Reiter III, of counsel), for appellee Nagabhu Koneru.
   JUSTICE PINCHAM

delivered the opinion of the court:

Plaintiff Robert Diggs brought this medical malpractice action in the circuit court of Cook County against the defendants, Suburban Medical Center, Benjamin LeCompte, Frederick Locher, James B. Tully, and D. Waxier (Suburban Medical Center et al.). Plaintiff Diggs amended his complaint and added Dr. Nagabhu Koneru, an anesthesiologist, as a defendant. Dr. Koneru filed a motion for summary judgment which the trial court granted and found, pursuant to Supreme Court Rule 304(a) (103 Ill. 2d R. 304(a)), that there was no just reason to delay enforcement or appeal of the summary judgment. On this appeal plaintiff contends that the trial court erred in granting summary judgment to Dr. Koneru before the completion of discovery and that the trial court abused its discretion in finding that there was no just reason to delay enforcement or appeal of the summary judgment. We affirm.

The following facts are pertinent to our disposition. On March 23, 1982, plaintiff filed a medical malpractice complaint against Suburban Medical Center et al., alleging that on or about October 27, 1981, the defendants, surgeons and a radiologist, “deviated from the appropriate standard of care, in failing to diagnose that sublaminar wires, surgically placed to reduce and hold [plaintiff’s] cervical fractures, were pressing on his spinal cord resulting in quadriparesis.” Almost a year later, on February 23, 1983, plaintiff amended his complaint, adding Dr. Koneru, an anesthesiologist, as a party defendant, and alleged that Dr. Koneru was negligent in various respects, including deviating from the applicable standard of care and in improperly administering anesthesia. Dr. Koneru answered the amended complaint on May 25, 1983, and denied plaintiff’s allegations of negligence. Plaintiff filed additional amended complaints which in essence restated the allegations that had been made against Dr. Koneru in the first amended complaint. Dr. Koneru’s denial responses to these amended complaints remained the same and discovery ensued.

On November 1, 1984, Dr. Koneru gave his discovery deposition and testified that the care he rendered to plaintiff was within the accepted standards of medical practice. Dr. Koneru then deposed Dr. Meyer, who was an orthopedic surgeon and who was also plaintiff’s treating physician. Dr. Meyer testified on his deposition that he had no opinion of the care rendered by Dr. Koneru to plaintiff.

Neither of plaintiff’s three expert witnesses, whom plaintiff intended to call at trial, criticized or offered an opinion on their deposition about the care rendered by Dr. Koneru to plaintiff. Plaintiff’s first expert witness, Dr. Brooks, an orthopedic surgeon, testified on his deposition that he had no “basis to feel that anesthesia played any role in” plaintiff’s injury. Plaintiff’s second expert witness, Dr. Stears, a neuroradiologist, testified on his deposition that “[f]rom the evaluation of others that I have read, I understand that now — from the orthopedist or the neurosurgeon, I understand that the anesthesia was not a problem here.” Finally, plaintiff’s third expert witness, Dr. Austin, a neurosurgeon, testified on his deposition that there was nothing to indicate that Dr. Koneru deviated from the acceptable standards of medical practice.

After the depositions of plaintiff’s three expert witnesses, defendant Dr. Koneru filed a motion for summary judgment on March 29, 1988, on the ground that none of plaintiff’s expert witnesses criticized or expressed any opinion that he deviated from the accepted standards of medical practice. Dr. Koneru attached his affidavit to his motion for summary judgment, which stated that the anesthesia care he rendered to plaintiff was well within the accepted standards of practice.

On May 23, 1988, plaintiff filed a motion pursuant to Supreme Court Rule 191(b) (73 Ill. 2d 191(b)), requesting a continuance of the summary judgment hearing on the ground that a witness, Dr. Weinberg, was still being deposed and could offer an opinion critical of Dr. Koneru’s care. Plaintiff also requested permission to again depose Dr. Koneru. On the same day that plaintiff filed the Rule 191(b) motion, Dr. Koneru filed an affidavit which stated that Dr. Weinberg had been deposed and that he did not offer an opinion about Dr. Koneru’s treatment of plaintiff.

The trial court granted plaintiff leave to again depose Dr. Koneru and ordered plaintiff to file by July 5, 1988, his response to Dr. Koneru’s motion for summary judgment. On July 5, 1988, plaintiff filed his response to Dr. Koneru’s motion for summary judgment, without having redeposed Dr. Koneru, and without filing any opposing affidavits to Dr. Koneru’s motion for summary judgment. One week thereafter, on July 12, 1988, Dr. Koneru filed his reply to plaintiff’s response. The trial court granted Dr. Koneru’s motion for summary judgment on July 15, 1988, and made an express written finding, pursuant to Supreme Court Rule 304(a), that there was no just reason to delay enforcement or appeal of the judgment. On August 8, 1988, plaintiff filed a motion requesting the trial court to reconsider its order granting summary judgment to Dr. Koneru, or in the alternative, to strike the paragraph that contained the finding that there was no just reason to delay enforcement or appeal of the judgment. Plaintiff’s motion for reconsideration or to strike was denied on August 11, 1988, from which plaintiff appeals. Plaintiff’s suit is still pending in the trial court against the remaining defendants, Suburban Medical Center et al., and they are not parties to this appeal.

Plaintiff contends on appeal that it was error for the trial court to prematurely grant summary judgment to defendant Dr. Koneru when the witnesses expected to be called by the remaining defendants had not been deposed and when discovery had not been completed. We disagree with these contentions.

It is well established in Illinois that in medical malpractice and other cases summary judgment is appropriate where there is no genuine issue of material fact. Bennett v. Raag (1982), 103 Ill. App. 3d 321, 431 N.E.2d 48; Prather v. Decatur Memorial Hospital (1981), 95 Ill. App. 3d 470, 420 N.E.2d 810; Goldstein v. Kantor (1981), 101 Ill. App. 3d 264, 427 N.E.2d 1322.

Under section 2—1005(c) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(c)), summary judgment is proper “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Addison v. Whittenberg (1988), 124 Ill. 2d 287, 529 N.E.2d 552; Johnson v. Matviuw (1988), 176 Ill. App. 3d 907, 531 N.E.2d 970; Bennett, 103 Ill. App. 3d 321, 431 N.E.2d 48.) Moreover, a defendant may move for summary judgment at any time. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(b).) The purpose of summary judgment is not to try an issue of fact but to determine whether a triable issue of fact exists. (Miller v. Smith (1985), 137 Ill. App. 3d 192, 196, 484 N.E.2d 492, 495-96.) If, however, there are facts upon which reasonable persons may disagree, or if varying inferences could fairly be drawn from the facts, the motion for summary judgment must be denied and the resolution of these facts and inferences must be made at trial. (Diamond Headache Clinic v. Loeber Motors, Inc. (1988), 172 Ill. App. 3d 364, 526 N.E.2d 599; Amin v. Knape & Voght Co. (1986), 148 Ill. App. 3d 1075, 500 N.E.2d 454; Montes v. Hawkins (1984), 126 Ill. App. 3d 419, 466 N.E.2d 1271.) Conversely, if the nonmovant fails to file affidavits in opposition to the motion for summary judgment, the trial court must take as true all assertions made in the movant’s affidavit. The nonmovant risks entry of summary judgment when he fails to file counteraffidavits to rebut assertions made in the movant’s affidavits. Bennett, 103 Ill. App. 3d 321, 431 N.E.2d 48.

In a medical malpractice case a plaintiff must present expert testimony to establish the applicable standard of care, that the defendant deviated from the applicable standard of care, and that the deviation resulted in plaintiff’s injury. (Addison v. Whittenberg (1988), 124 Ill. 2d 287, 297, 529 N.E.2d 552, 556, citing Purtill v. Hess (1986), 111 Ill. 2d 229, 241-42, 489 N.E.2d 867, 872.) Exceptions to the requirement of expert testimony at trial have been found to exist in cases in which treatment by the defendant is so common or the act so grossly negligent that a layman would be able to make a proper evaluation in light of his own experience and knowledge. Purtill v. Hess (1986), 111 Ill. 2d 229, 242, 489 N.E.2d 867, 872; Walski v. Tiesenga (1978), 72 Ill. 2d 249, 256-57, 381 N.E.2d 279, 282.

In applying the foregoing principles to the case at bar, we believe that the trial court was correct and did not abuse its discretion in granting summary judgment to defendant Dr. Koneru.

The record reveals that the entry of summary judgment was not premature. The motion for summary judgment was granted more than six years after this case was initially filed. Plaintiff had ample opportunity during this six-year period to obtain an opinion critical of Dr. Koneru’s care to raise a genuine issue of material fact, precluding summary judgment, but plaintiff failed to do so. All the witnesses who had been deposed, including plaintiff’s own three expert witnesses, failed to question or offer opinions critical of the care defendant anesthesiologist, Dr. Koneru, rendered to plaintiff. Plaintiff’s three expert witnesses, Drs. Brooks, Stears, and Austin, respectively, testified on their depositions that: “[I]t saw nothing in the record to indicate that there was any deviation on Dr. Koneru’s part”; that “based on my review of the records, I find no basis to feel that anesthesia played any role in the patient’s subsequent disability”; and that “I have no opinion of Dr. Koneru’s care.” Plaintiff’s treating physician, Dr. Stears, also testified on his deposition that he had no opinion concerning the care rendered by Dr. Koneru.

There is no evidence in the record that Dr. Koneru deviated from the applicable standard of care or that anesthesia played any role in plaintiff’s quadriparesis. In fact, the deposition testimony of the expert doctors was to the contrary. Plaintiff filed a Supreme Court Rule 191(b) motion, stating that summary judgment should be denied because experts of the remaining defendants had not been deposed. Plaintiff, however, failed to state what difference the remaining defendants’ expert witnesses’ opinions or their testimony might be. The plaintiff had sufficient time to present expert testimony and in fact presented three doctor-experts who failed to criticize Dr. Koneru’s care. It was the plaintiff’s duty to present expert opinions of Dr. Koneru’s negligence, and he cannot be heard to complain that the defendant failed to do it for him. Addison, 124 Ill. 2d at 299, 529 N.E.2d at 557.

The record also reveals that plaintiff failed to file affidavits in opposition to Dr. Koneru’s motion for summary judgment, and thus, permitted the trial court to take as true all assertions made in Dr. Koneru’s affidavit. In failing to file affidavits in opposition to Dr. Koneru’s motion for summary judgment, plaintiff risked entry of summary judgment for Dr. Koneru. Even after the trial court granted summary judgment to defendant Dr. Koneru, plaintiff could have filed counteraffidavits in his motion to reconsider, but again plaintiff failed to do so.

This case is similar to many of the other decided cases where summary judgment was granted after plaintiff’s expert witnesses failed to offer opinions critical of a defendant’s care. (Bennett v. Raag (1982), 103 Ill. App. 3d 321, 431 N.E.2d 48; Chiero v. Chicago Osteopathic Hospital (1979), 74 Ill. App. 3d 166, 392 N.E.2d 203; Lundahl v. Rockford Memorial Hospital Association (1968), 93 Ill. App. 2d 461, 235 N.E.2d 671.) In the case at bar, like many of the other decided cases, it is incumbent on the plaintiff to substantiate his allegations through expert testimony in order to defeat a motion for summary judgment. The failure of a nonmovant in a medical malpractice case to bring forth experts, who will raise the necessary inferences sufficient to defeat a motion for summary judgment, is fatal and will result in the entry of summary judgment to the movant. If the plaintiff’s own expert witnesses fail to criticize the care rendered by the defendant and the plaintiff fails to file counteraffidavits to the motion for summary judgment, the plaintiff cannot rely on the unknown testimony of the defendant’s experts to defeat a motion for summary judgment.

Plaintiff further argues that summary judgment was premature and improper in view of the difficulty he experienced in obtaining experts to testify against Dr. Koneru. We are advised that, in medical malpractice cases, it is difficult for plaintiffs to obtain medical experts to testify against one in the same profession (Chiero v. Chicago Osteopathic Hospital (1979), 74 Ill. App. 3d 166, 392 N.E.2d 203), but, in the case at bar, plaintiff encountered no such difficulties in obtaining expert witnesses. The record reveals that plaintiff obtained two experts to testify a year before the summary judgment hearing, while his third witness testified six months before the summary judgment hearing. Plaintiff could have contradicted defendant Dr. Koneru’s summary judgment affidavit but he failed to do so.

For the foregoing reasons, the trial court’s entry of summary judgment for defendant Dr. Koneru was proper.

Plaintiff next contends that the trial court abused its discretion when it made the express written finding pursuant to Supreme Court Rule 304(a) (103 Ill. 2d R. 304(a)) that there was no just reason to delay enforcement or appeal of the judgment. We disagree. Supreme Court Rule 304(a) provides as follows:

“If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. Such a finding may be made at the time of the entry of the judgment or thereafter on the court’s own motion or on motion of any party. The time for filing the notice of appeal shall run from the entry of the required finding. In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is not subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.” 103 Ill. 2d R. 304(a).

Thus, where there are multiple parties and multiple claims for relief and final judgment disposes of one or more but fewer than all the parties and claims, then an appeal may be taken from the final order only if the trial court makes a finding pursuant to Supreme Court Rule 304(a) that there is no just reason for delay or appeal. (Santana v. Zipperstein (1986), 142 Ill. App. 3d 386, 491 N.E.2d 1231; Pecora v. Szabo (1982), 109 Ill. App. 3d 824, 441 N.E.2d 360.) The purpose of Rule 304(a) is to discourage piecemeal appeals and to remove the uncertainty which exists when a final judgment is entered on less than all the matters in controversy. (Salyers v. Board of Governors (1979), 69 Ill. App. 3d 356, 387 N.E.2d 1129; Statistical Tabulating Corp. v. Hauck (1972), 5 Ill. App. 3d 50, 282 N.E.2d 524.) An order is final when it terminates litigation between all the parties on its merits or disposes of the rights of the parties’ entire controversy. (Peter Fischer Import Motors, Inc. v. Buckley (1984), 121 Ill. App. 3d 906, 460 N.E.2d 346.) An order granting summary judgment is a final order. (Atherton v. City of Champaign (1966), 71 Ill. App. 2d 432, 218 N.E.2d 106.) Additionally and more importantly, a finding of appealability in less than all the issues in controversy is a matter of judicial discretion, and the finding -will be reversed only if the trial court abused its discretion. See Weber v. Northern Illinois Gas Co. (1973), 10 Ill. App. 3d 625, 295 N.E.2d 41; Statistical Tabulating Corp. v. Hauck (1972), 5 Ill. App. 3d 50, 282 N.E.2d 524.

Applying the foregoing principles to the case at bar, we do not believe the trial court abused its discretion in finding that there was no just reason to delay enforcement or appeal of the summary judgment. The record reveals that the trial court deliberated and made a conscious decision before granting the Rule 304(a) finding that there was no just reason to delay enforcement or appeal of the summary judgment. The trial court stated as follows:

“THE COURT: Well, I’m pretty cautious when I give 304(a) language. *** I require that the party's involvement be disposed of before I will give 304(a) language. So I can’t see how this would be an abuse. I mean, you are going to have a defendant that is going to have to attend all the depositions and incur all the expenses of trial preparation in a case that they have been dismissed from. I don’t think that is fair to that defendant.”

The Rule 304(a) enforcement-appeal finding was made after summary judgment was entered and after the litigation between Koneru and plaintiff had been terminated. Contrary to the plaintiff’s argument, the trial court did not grant the Rule 304(a) finding “for the asking,” nor was the Rule 304(a) finding granted routinely, as plaintiff suggests.

Accordingly, the trial court’s order entering summary judgment for Dr. Koneru and its finding that there was no just reason to delay enforcement or appeal of the summary judgment are affirmed.

Affirmed.

COCCIA and LORENZ, JJ., concur.

       Supreme Court Rule 191(b) provides as follows: “If the affidavit of either party contains a statement that any of the material facts which ought to appear in the affidavit are known only to persons whose affidavits affiant is unable to procure by reason of hostility or otherwise, naming the persons and showing why their affidavits cannot be procured and what affiant believes they would testify to if sworn, with his reasons for his belief, the court may make any order that may be just, either granting or refusing the motion, or granting a continuance to permit affidavits to be obtained, or for submitting interrogatories to or taking the depositions of any of the persons so named, or for producing papers or documents in the possession of those persons or furnishing sworn copies thereof. The interrogatories and sworn answers thereto, depositions so taken, and sworn copies of papers and documents so furnished, shall be considered with the affidavits in passing upon the motion.” 73 Ill. 2d 191(b).


author: JUSTICE LaPORTA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERWIN DANIEL, Defendant-Appellant.
    First District (6th Division)
    No. 1—86—2617
    Opinion filed November 17, 1989.

      Roosevelt Thomas, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Carol L. Gaines, and Janet C. Mahoney, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LaPORTA

delivered the opinion of the court:

The defendant was arrested and was tried for the murder of Roger Tate and the attempted murder and aggravated battery of Darren Cooper. A mistrial was declared in defendant’s prior trial. On retrial, the jury found defendant guilty of the murder of Roger Tate, the attempted murder of Darren Cooper and aggravated battery of Darren Cooper. The trial judge imposed a sentence of natural life. After his motion for a new trial was denied, defendant appealed.

The defendant raises the following issues on appeal: (1) whether defendant was proven guilty of murder, attempted murder and aggravated battery beyond a reasonable doubt where he offered evidence to show he acted in self-defense; or (2) in the alternative, if the jury found he did not act in self-defense, whether defendant should have been found guilty of voluntary manslaughter, because at the time of the shootings, he believed the occupants of the car were armed and that his life was in danger and therefore he believed his actions were justified; (3) whether the trial judge failed to properly instruct the jury that when defendant raised as his defense his fear of great harm from the victims and his resultant belief that his actions were justified, the burden of proof shifted to the State to prove that his belief in justification was meritless; (4) whether the court erred in refusing to permit investigating police officers to testify to defendant’s statements made while in custody that the passenger in the back seat reached under the seat and pointed something black out the window at defendant; (5) whether the sentence of natural life imposed by the trial court without consideration of factors in mitigation violates the fourth, eighth and fourteenth amendments of the Federal Constitution; and (6) whether defendant was sentenced under the mandatory natural life statute.

Defendant and Calloway were arrested on charges of murder, attempted murder and aggravated battery. Defendant and Calloway made and signed sworn statements to an assistant State’s Attorney while in police custody. Calloway was tried in a bench trial and acquitted. Defendant first was tried by a jury which was unable to reach a verdict. The court declared a mistrial.

These convictions result from the jury’s finding the defendant guilty of the murder of Roger Tate and the attempted murder and aggravated battery of Darren Cooper in the defendant’s second trial.

The relevant facts are as follows. On the evening of June 13, 1985, just prior to the shooting, Phillip Potter was driving his car west on 90th Street in the vicinity of Bishop and Laflin Streets in Chicago, Illinois. Darren Cooper rode in the rear seat, and Roger Tate was in the front passenger seat with his head leaning out of the window looking back at people on the street corner.

At the same time, defendant Erwin Daniel, Ricky Calloway and Andre Mosley were standing on the sidewalk on 90th Street at the alley between Bishop and Laflin Streets as Potter’s car drove up. Defendant asked Tate “What *** are you looking at?” Although testimony conflicts as to what precisely was said in response, the testimony is uncontroverted that defendant pulled a gun from his pocket and shot Cooper and Tate. Potter drove immediately to Little Company of Mary Hospital, where Cooper was treated for a gunshot wound to his elbow and Tate was pronounced dead from a gunshot wound to the back. Both defendant and Calloway were arrested the next day. While in custody they were given Miranda warnings and both gave signed statements to the assistant State’s Attorney.

We first address the issue raised by defendant that the testimony of police officers Danzl and Baker regarding the defendant’s statements to them after his arrest was improperly excluded and should have been permitted at trial. The trial court rejected defendant’s offer of proof as to his statement to these police officers that the man in the back seat of the car reached under the front seat and then pointed something black out the window. The court noted on the record that the officers had been permitted to testify in the first trial to establish no recent fabrication in defendant’s testimony at trial because the defendant had testified. The defendant did not testify at the second trial.

Police reports and similar material are generally held to be inadmissible hearsay when offered to prove the truth of matters asserted. (Williamson v. City of Springfield (1984), 125 Ill. App. 3d 361, 366, 465 N.E.2d 1035, 1039; Kyowski v. Burns (1979), 70 Ill. App. 3d 1009, 1014, 388 N.E.2d 770, 774; Walls v. Jul (1969), 118 Ill. App. 2d 242, 249, 254 N.E.2d 173, 176; Redding v. Schroeder (1964), 54 Ill. App. 2d 306, 314, 203 N.E.2d 616, 620.) Police officers may be allowed to testify about otherwise hearsay material upon which they have based further actions and investigation. (People v. Hunter (1984), 124 Ill. App. 3d 516, 529, 464 N.E.2d 659, 671; People v. Bryant (1984), 123 Ill. App. 3d 266, 275, 462 N.E.2d 780, 786.) Here the testimony of Officers Danzl and Baker was offered by defendant as a substitute for defendant's failure to testify at trial. There was no evidence that the officers based any investigation upon the defendant’s statement.

The defendant argues that even if the testimony is hearsay, it should be admitted as either a state-of-mind exception or to prove that the statement was made. While a third party may testify that a certain conversation took place, the third party may not testify as to the contents of that conversation. People v. Jackson (1979), 72 Ill. App. 3d 231, 237, 390 N.E.2d 47, 52; People v. Finley (1978), 63 Ill. App. 3d 95, 100, 379 N.E.2d 645, 648.

Under certain circumstances, hearsay evidence may be admitted to inform the jury of the defendant’s state of mind at the time the acts with which he is charged occurred, but it may not be used as evidence of the contents of any statements made. In People v. Britz (1986), 112 Ill. 2d 314, 493 N.E.2d 575, cited by the defendant, tape recordings of conversations the defendant had with a witness were offered to show the voluntariness of his confession, but not for the contents of that confession. (Britz, 112 Ill. 2d at 320, 493 N.E.2d at 577.) Here the defendant attempts to offer the hearsay testimony to show his state of mind at the time of the shooting.

In People v. Kline (1980), 90 Ill. App. 3d 1006, 414 N.E.2d 141, the court noted that “defendant’s state of mind at the time of the occurrence is a material issue and is a proper subject of examination.” (Kline, 90 Ill. App. 3d at 1014, 414 N.E.2d at 146, citing People v. Harris (1956), 8 Ill. 2d 431, 436, 134 N.E.2d 315, 318, and People v. Pernell (1979), 72 Ill. App. 3d 664, 668, 391 N.E.2d 85, 88.) The court in Kline held that the defendant should have been able to testify as to his state of mind at the time he acted. There the defendant was a police informant, was aware that he was placing himself in a dangerous situation (Kline, 90 Ill. App. 3d at 1009-10, 414 N.E.2d at 143), and shot only after the assailants continued to attack despite warnings, when a shotgun was pointed at the defendant. (Kline, 90 Ill. App. 3d at 1011, 414 N.E.2d at 144.) Because the defendant here did not testify, the Kline case does not apply.

We find no error in the trial court’s refusal to permit the investigating police officers to testify at the second trial since the only basis for offering their testimony was to disprove recent fabrication by defendant at trial. In the absence of any trial testimony from defendant, their testimony was inadmissible.

The defendant next argues that he should not have been found guilty because he acted in self-defense.

“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he 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 or another ***.” Ill. Rev. Stat. 1985, ch. 38, par. 7—1.

Inasmuch as self-defense is an affirmative defense, defendant is required to offer sufficient proof to show that force is threatened against the defendant, that the defendant when threatened was not the aggressor; that the danger of harm to defendant is imminent; that the force threatened is unlawful; that the defendant when threatened must actually believe that a danger exists; that his use of force is necessary to avert the danger; that the kind and amount of force which he uses is necessary and that these beliefs are reasonable. Where the defendant uses deadly force he must believe that the threatened force will cause him death or great bodily harm, or that the force threatened is a forcible felony. People v. Carter (1985), 135 Ill. App. 3d 403, 409, 481 N.E.2d 1012, 1017, citing People v. Williams (1965), 56 Ill. App. 2d 159, 165-66, 205 N.E.2d 749, 752.

At trial, the State’s witnesses Cooper and Potter testified that no one in the car spoke any gang slogans, but that when defendant shot into the car he shouted “Insane Vice Lords.” Both Cooper and Potter denied that any of the men in the car had a gun. Calloway testified at trial that, earlier on the day of the shooting, defendant met Calloway and Andre Mosley and at defendant’s request Calloway gave defendant a .25 automatic pistol. After the shooting, the police, based on Calloway’s instructions, recovered the gun from Calloway’s home, where he testified he had hidden it at defendant’s request. He also testified that at the time of the occurrence he saw no gun or other weapon in the victim’s car, that the defendant told him the person in the back seat of the car looked “like he was pulling up a gun,” so defendant shot into the car.

Calloway’s sworn statement to the assistant State’s Attorney was read into the record. In his statement Calloway stated that defendant “and one of the guys in the car said something about GD, meaning Gangster Disciples and Erwin reached for his gun, pulled it out and fired two shots.” Calloway also stated that “I never saw [a] gun or other weapon in the car where the guys were shot.

At trial, the defense offered evidence to show that defendant was defending himself from what he believed was a gun. While defendant did not testify at trial, his signed statement made to the assistant State’s Attorney at the time of his arrest was read into the record without objection. In his signed statement defendant stated that somebody in the car had said “GD,” which meant Gangster Discipies, a rival gang to the Vice Lords, before the defendant fired the gun into the car. The defendant claimed that Cooper said he was a member of a rival gang, and may have pointed something at defendant, at which point defendant shot into the car while calling out the name of his street gang. The statement in defendant’s own words was “I thought because [Cooper] was a Gangster Disciple, he would have a gun. I never saw a gun, though.”

Here the testimony of those present at the time of the shooting established that the defendant was not in a clearly dangerous situation and had not been attacked.

When there is a disputed question as to self-defense, it is a question for the jury to decide. (People v. Feierabend (1981), 98 Ill. App. 3d 731, 736, 424 N.E.2d 765, 770, citing People v. Jordan (1960), 18 Ill. 2d 489, 493, 165 N.E.2d 296, 298, and People v. Johnson (1969), 112 Ill. App. 2d 148, 152, 251 N.E.2d 393, 395.) “A conviction will not be reversed unless the evidence presented is so improbable or so palpably contrary to the verdict as to raise a reasonable doubt of guilt.” Feierabend, 98 Ill. App. 3d at 736, citing People v. McClain (1951), 410 Ill. 280, 285, 102 N.E.2d 134, 137; People v. Lewis (1979), 75 Ill. App. 3d 259, 281, 393 N.E.2d 1098, 1114; People v. Polk (1979), 70 Ill. App. 3d 903, 906, 388 N.E.2d 864, 867.

Here the jury clearly did not believe the self-defense argument when balanced against the evidence produced by the State. No one testified that Cooper exhibited a gun. No one testified that Cooper did in fact point “something black” out the car window. No evidence was produced at trial to support defendant’s alleged belief that he was in danger nor that his firing of the gun was a reaction to any threat, actual or subjectively perceived. The evidence supports the jury’s rejection of self-defense.

The defendant argues in the alternative that even if it were not shown that he acted in self-defense, he should have been found guilty only of voluntary manslaughter. “The difference between self-defense and voluntary manslaughter is in the reasonableness of the defendant’s subjective belief. If reasonable, then a jury is justified in finding the defendant acted in self-defense. If unreasonable, the jury is justified in returning a verdict of voluntary manslaughter.” (People v. Scott (1981), 97 Ill. App. 3d 899, 903, 424 N.E.2d 70, 73, citing Ill. Rev. Stat. 1979, ch. 38, par. 9—2, and People v. O’Neal (1984), 104 Ill. 2d 399, 405, 472 N.E.2d 441, 443.) The defendant here argues that if he cannot be found to have acted in self-defense, he should have been found guilty only of voluntary manslaughter, not of murder.

“A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.” Ill. Rev. Stat. 1985, ch. 38, par. 9—2(b).

The issue of whether it would be unreasonable for the defendant here to have assumed he was in mortal danger just before he shot Cooper in the arm and Tate in the back is a question of fact for the jury to decide. (People v. Jordan (1985), 130 Ill. App. 3d 810, 812, 474 N.E.2d 1283, 1286; People v. Chatman (1981), 102 Ill. App. 3d 692, 700, 430 N.E.2d 256, 262.) Unless the record raises serious questions regarding the appropriateness of the jury’s decision, it should not be disturbed by a reviewing court. (People v. Steffens (1985), 131 Ill. App. 3d 141, 147, 475 N.E.2d 606, 612, citing People v. Yates (1983), 98 Ill. 2d 502, 518-19, 456 N.E.2d 1369, 1378, cert, denied (1984), 466 U.S. 981, 80 L. Ed. 2d 836, 104 S. Ct. 2364; People v. Jordan (1985), 130 Ill. App. 3d 810, 813, 474 N.E.2d 1283, 1286; Feierabend, 98 Ill. App. 3d at 736, 424 N.E.2d at 770.) There is no proof that the defendant was in actual danger, but merely that he thought that one of the car’s passengers might have had a gun. The defendant stated that he feared Gangster Disciples because a Gangster Disciple had shot at him once, but he acknowledged that it was not Potter or Tate or Cooper who had done so.

The jury was required to judge the credibility of the evidence offered to establish defendant’s subjective belief that he was justified in firing a gun at the men in the car. In finding defendant guilty of murder, attempted murder and aggravated battery, the jury clearly did not believe that the evidence supported a finding that defendant believed he was justified in firing his gun at the victims in the car. Therefore, the jury rejected defense arguments for a finding of voluntary manslaughter instead of murder.

Defendant next argues that the trial court failed to properly instruct the jury on the State’s burden to affirmatively prove the defendant’s belief in justification to have been meritless where defendant has raised as his defense his belief that he was in danger of great harm and that his actions were justified because of that belief.

In his supplemental brief, the defendant argues that the jury instructions given by the court for the burdens of proof on the issues of murder, self-defense and the lesser offense of voluntary manslaughter based upon defendant’s unreasonable belief in justification were erroneous, because they failed to instruct the jury that the burden of disproving defendant’s belief that his actions were justified rests with the State. (People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141.) The defendant contends that the reasoning of the supreme court in Reddick is applicable here. The court stated “the burden of proof and elements of the offense[ ] are essential to a fair trial and that the failure to give such instructions constitutes grave error when, viewing the record as a whole, it appears that the jury was not appraised of the People’s burden of proof.” Reddick, 123 Ill. 2d at 198, 526 N.E.2d at 147, citing People v. Berry (1984), 99 Ill. 2d 499, 460 N.E.2d 742; People v. Jenkins (1977), 69 Ill. 2d 61, 370 N.E.2d 532.

Defendant argues that because the erroneous instructions are substantial defects and, even though defendant did not raise the issue before the trial court, the interests of justice require this court on appeal to consider the question under the grave error exception to Supreme Court Rule 451(c) (107 Ill. 2d R. 451(c); Reddick, 123 Ill. 2d at 198, 526 N.E.2d at 147). Defendant argues that because the jury was not properly instructed his conviction should be reversed and he is entitled to a new trial.

The pertinent burden of proof Illinois Pattern Jury Instructions (hereinafter IPI) given here were:

“I.P.I. Criminal Number 7.02 (Murder)
To sustain the charge of murder, the State must prove the following propositions:
First: That the defendant performed the acts which caused the death of Roger Tate; and
Second: That when the defendant did so, he intended to kill or do great bodily harm to Roger Tate; or he knew that his act would cause death or great bodily harm to Roger Tate; or he knew that his acts created a strong probability of death or great bodily harm to Roger Tate; and
Third: That the defendant was not justified in the force he used.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.
I.P.I. Criminal Number 24—2506 (Self-Defense)
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.
I.P.I. Criminal Number 7.06 (Voluntary Manslaughter — Justification)
To sustain the charge of voluntary manslaughter, the State must prove the following propositions:
First: That the defendant performed the acts which caused the death of Roger Tate; and
Second: That when the defendant did so, he intended to kill or do great bodily harm to Roger Tate; or he knew that his acts would cause death or great bodily harm to Roger Tate; or
He knew that his acts created a strong probability of death or great bodily harm to Roger Tate; and
Third: That when the defendant did so he believed that the circumstances existed which would have justified killing Roger Tate; and
Fourth: That the defendant’s belief that such circumstances existed was unreasonable.
If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.” See Illinois Pattern Jury Instructions, Criminal, Nos. 7.02, 24—2506, 7.06 (2d ed. 1981).

The Reddick court centered its analysis of the errors in these jury instructions (where defendant has raised as his defense evidence to show that when he acted he believed his act was justified) on two considerations: (1) whether the State in order to maintain a murder conviction must disprove the existence of defendant’s mental state, i.e., prove defendant’s belief in justification was unreasonable and therefore meritless, or (2) whether the defendant, in order to avoid the murder conviction and instead be convicted of voluntary manslaughter, must prove his belief that his actions were justified. Reddick, 123 Ill. 2d at 195, 526 N.E.2d at 145.

The court stated that where “a defendant charged with murder asserts that (if he acted unjustifiably) he acted under either an unreasonable belief of justification or intense provocation, the People need not present evidence of either of those mental conditions in order to convict him of voluntary manslaughter. The reason for this result is that these two mental states are states of lesser culpability, and defendant relies on their existence in order to lessen the culpability of his otherwise murderous conduct.” (Reddick, 123 Ill. 2d at 195, 526 N.E.2d at 145.) Therefore, a defendant must produce sufficient evidence to reduce the charge from murder to voluntary manslaughter, and when he has done so, the State then must prove beyond a reasonable doubt all of the statutory elements of murder and also must prove the defenses are meritless and insufficient to reduce the charge to voluntary manslaughter. Reddick, 123 Ill. 2d at 197, 526 N.E.2d at 146.

Where defendant has failed to produce sufficient evidence to prove he believed he was in danger, he has fallen short of establishing the mitigating mental condition of voluntary manslaughter required to shift the burden of disproving his belief to the State. (People v. Carter (1988), 177 Ill. App. 3d 593, 598, 532 N.E.2d 531, 535.) Here no evidence was adduced which would have given defendant reason to believe he was justified in his use of deadly force against Tate, and therefore, if any error existed in the given instructions, it was harmless beyond á reasonable doubt. People v. Skipper (1989), 177 Ill. App. 3d 684, 689, 533 N.E.2d 44, 47.

Applying the Reddick analysis to this case, we find the defendant has failed to produce sufficient evidence to reduce the charge to voluntary manslaughter. Therefore, while the instructions given stated an erroneous burden of proof for voluntary manslaughter, we conclude that this was harmless error because the State has overwhelmingly proved defendant guilty of murder.

Defendant was convicted of the murder of Tate. The uncontroverted evidence established that Tate was the passenger in the front seat of the car, that he had his head out of the window immediately prior to the confrontation with defendant, that defendant was some distance away from the car when words were exchanged between defendant and Cooper, who was in the back seat of the car, that Tate moved his head back into the car and Cooper leaned forward to the open window, that Cooper and defendant exchanged words, that defendant came up close to the car, drew his gun and shot into the car, killing Tate and wounding Cooper. The evidence is clear that Tate made no threatening moves or statements to defendant, and therefore, in shooting Tate defendant could not have believed Tate was a threat to him so that the act of shooting Tate would be justified.

Following the shooting, defendant ran from the scene, gave the gun to Calloway to hide and went for something to eat.

Defendant’s version of the occurrence at trial was elicited from the testimony of Calloway, who testified that defendant told him he thought Cooper in the back seat “looked like he was pulling up a gun,” but Calloway’s statement to the assistant State’s Attorney while in custody was that one of the people in the car used a gang slogan and defendant reached for his gun and fired two shots into the car. Calloway stated at trial and in his prior sworn statement that he never saw a weapon in the car. Because he did not testify, defendant’s only statement at trial was his sworn statement to the assistant State’s Attorney while in custody, where he stated that one passenger used a gang slogan and may have pointed something at defendant at which point he shot into the car. He stated that he thought Cooper had a gun because Cooper “was a Gangster Disciple, [and] would have a gun” but that he “never saw a gun, though.”

The defendant’s claim that his actions were justified centered around his confrontation with Cooper, whom he recognized. An examination of the record shows his statement and Calloway’s statement and trial testimony referred to the passenger in the back seat and defendant’s alleged perception of danger from him. No proofs were offered that defendant feared danger from Tate and yet Tate was shot and killed.

Hence, on the issue of erroneous jury instructions, we find the record does not support a reversal of defendant’s conviction of murder nor is defendant entitled to a new trial.

We next consider defendant’s argument that the trial judge’s imposition of the sentence of natural life without parole was unconstitutional where the court did not consider factors in mitigation and where there is no provision for reevaluating defendant’s rehabilitation. Defendant draws an analogy between a death sentence and a sentence of natural life without parole and concludes that in each instance the trial court first must consider relevant mitigating factors before imposing sentence. Here, the trial judge specifically noted at sentencing that he was precluded from imposing a death sentence. Defendant’s argument equating the sentence of natural life without parole with a death sentence contradicts United States Supreme Court cases which find clear distinctions between them. Solem v. Helm (1983), 463 U.S. 277, 289, 77 L. Ed. 2d 637, 648-49, 103 S. Ct. 3001, 3009; Rummel v. Estelle (1980), 445 U.S. 263, 272, 63 L. Ed. 2d 382, 390, 100 S. Ct. 1133, 1138.

The Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 9—1(c)) requires the court, prior to sentencing, to consider any aggravating and mitigating factors which are relevant to a determination of the degree of moral culpability of the defendant. In assessing defendant’s moral culpability, the evidence showed that, prior to the occurrence, he asked Calloway to give him a gun, that when the shooting occurred, he pulled out the gun and fired two shots into the car even though he saw no gun and only verbal exchanges took place between defendant and one of the victims. The victims made no attempt to leave the car or pursue the defendant. Following the shooting, defendant and his companions fled the scene, defendant asked Calloway to hide the gun, and in his signed statement he told the assistant State’s Attorney that he then left and went to get something to eat.

Where the defendant showed a lack of remorse and an “eagerness to party” following the victim’s murder, the court found these factors together with the wanton brutality of the crime to justify the imposition of the sentence of natural life. (People v. Wilson (1985), 133 Ill. App. 3d 265, 272, 478 N.E.2d 561, 566.) In People v. Nester (1984), 123 Ill. App. 3d 501, 502, 462 N.E.2d 1011, 1012-13, the defendant began a fight with a much smaller, unarmed victim and stabbed him. Finding defendant’s actions “cold-blooded *** reprehensible, cruel and heinous,” the trial court imposed the sentence of natural life which was affirmed on review. (Nester, 123 Ill. App. 3d at 505, 462 N.E.2d at 1015.) Where the “murder was casually undertaken *** and was performed cold-bloodedly without any provocation, real or imagined, on the part of the victim,” the sentence of natural life was upheld on review. People v. Walker (1985), 136 Ill. App. 3d 177, 182, 483 N.E.2d 301, appeal denied (1985), 111 Ill. 2d 563, 485 N.E.2d 2093.

There is no evidence in our case that the murder victim Tate did anything to provoke the defendant to shoot him in the back. In fact, the defendant’s own statement to the assistant State’s Attorney was that he thought the person in the back seat was reaching for a gun under the seat. The person in the back seat was Cooper and not Tate. Defendant’s lack of remorse following the murder renders his claim that the shooting occurred because he was in fear for his life from the victim unbelievable. Given the facts of this case and the evidence produced against the defendant, we hold the sentence of natural life was proper.

As his final allegation of error, the defendant argues that he should have been sentenced under the statutory section which permits a discretionary natural life sentence (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—1(a)(1)(b)) instead of under the statutory section which requires mandatory life imprisonment (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—1(a)(1)(c)). Defendant was charged with the murder of Tate under section 9—1(a)(2) (Ill. Rev. Stat. 1985, ch. 38, par. 9—1), which states:

“§(a) A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
* * *
(2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another;
* * *
(b) A defendant who at the time of the commission of the offense has attained the age of 18 or more and who has been found guilty of murder may be sentenced to death ***.”

That statute further provides:

“(c) the court shall consider *** any aggravating and any mitigating factors which are relevant to the imposition of the death penalty. *** Mitigating factors may include but need not be limited to the following:
1. the defendant has no significant history of prior criminal activity.” (Ill. Rev. Stat. 1985, ch. 38, par. 9—1(c).)

That statute further provides that the court was required to impose the death sentence if there were no mitigating factors to preclude its imposition, but if such factors were present, then sentence was required to be imposed under Chapter V of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—1).

Here, the trial judge sentenced the defendant to natural life and stated that “the reason I am giving natural life, as opposed to the death penalty, is due to the fact of his absence of serious involvement with any law enforcement authorities before this happened.” Clearly the mitigating factor of ho prior involvement with the police was considered and was the reason defendant was not sentenced to death.

We find no error in the court’s omission of any reference to the statutory section under which sentence was imposed. The sentence was appropriate and within the statutory proscriptions for the defend-' ant’s murder conviction.

For all of the reasons stated, the judgment of the trial court is affirmed.

Judgment affirmed.

McNAMARA AND QUINLAN, JJ., concur.

       Justice Quinlan participated in this opinion prior to his resignation from the court.


text:
    JUDITH VERSON, Plaintiff and Counterdefendant-Appellee, v. MAURICE STEIMBERG et al., Defendants and Counterplaintiffs-Appellants.
    First District (6th Division)
    No. 1—88—1356
    Opinion filed November 17, 1989.
    Rehearing denied January 10, 1990.
    Chadwell & Kayser, Ltd., of Chicago (Paul W. Gabler and Stephen N. Landsman, of counsel), for appellants.

      Rosenberg, Opdycke, Gildea, Hellner & Kelly, of Chicago (Mark Hellner, of counsel), for appellee.
   JUSTICE LaPORTA

delivered the opinion of the court:

Plaintiff filed suit to quiet title on her home, naming as defendants Maurice Steimberg, Harold Marcus and Annabelle Marcus, who held a trust deed encumbering the property. The defendants filed a counterclaim to foreclose on the trust deed. Following trial the court held in favor of plaintiff, found that she had received no consideration for executing the trust deed and found defendants were not entitled to the foreclosure sought in the counterclaim.

Defendants filed this appeal and raise these issues: (1) whether plaintiff in fact did receive consideration for the trust deed so that defendants are entitled to foreclose the mortgage lien against the property, and (2) regardless of whether or not plaintiff received consideration, were defendants entitled to foreclose the trust deed against the undivided one-half interest in the property owned by plaintiff’s husband at the time the trust deed was executed and delivered? Plaintiff adds the issue of whether plaintiff proved the affirmative defense of laches and therefore whether the foreclosure action was barred by laches.

Plaintiff and Stuart Banks were married in 1965 and purchased the residence in Homewood, Illinois, in 1969, subject to a purchase money mortgage to St. Paul Federal Savings & Loan Association. In 1976, their marriage was failing and plaintiff and Banks separated. Plaintiff remained in the family home with their children and continued to make the mortgage payments to St. Paul Federal Savings & Loan while Banks moved to another residence. Plaintiff and Banks were divorced in 1982. As part of the property settlement, Banks quitclaimed the house to plaintiff.

For some time prior to their marriage, Banks worked for H & M Truck and Auto Parts (Truck) and H & M Auto Electric (Electric). These businesses were owned by defendants. In 1977, Banks and Fred Goldstein, who was the son-in-law of the defendants, agreed to buy the stock of the two businesses and defendants agreed to sell them. At that time Banks and Goldstein also were the only shareholders of Stugo, Inc., an Illinois corporation. Stugo, Inc., also was named as a purchaser in the agreement. A written agreement was executed on or about July 8, 1977, by Banks, Goldstein and Stugo, Inc., and provided in pertinent part: (1) that in consideration of the sale of the stock, purchasers were to execute four promissory notes payable to the defendants, all for a total principal value of $1,467,472.49; (2) that purchasers Banks and Goldstein were to personally guarantee payment of the four notes; and (3) that as additional security for the promissory notes, Banks agreed that he and his wife, plaintiff, would execute a second mortgage on their residence in Flossmoor and Gold-stein agreed that he and his wife would execute a second mortgage on their home in Des Plaines. The closing took place on December 31, 1977.

On December 29, 1977, Banks and plaintiff jointly executed a trust deed dated December 31, 1977, on their home to the defendants, which deed was delivered to defendants at closing and subsequently recorded. The trust deed recites consideration of $1 and “to secure payment of the principal amount plus interest” of the four promissory notes given by Stugo, Inc., Banks and Goldstein for the purchase price of the businesses. The trust deed “conveyed and warranted” all their interest in the property and was subject to the St. Paul mortgage.

At the time the trust deed was executed by Banks and plaintiff, they were living separate and apart from each other. Subsequently, in late 1982, Banks and plaintiff were divorced, and as part of the property settlement on October 20, 1982, Banks executed a quitclaim deed for the Flossmoor property to plaintiff and she assumed responsibility for payment of the first mortgage. The quitclaim deed to plaintiff was made subject to the trust deed recorded January 10, 1978, to secure notes for $1,467,472.49 and was also subject to the purchase money mortgage recorded August 28,1969, to secure a note for $25,000.

The record discloses that at the time Banks and Goldstein entered into the agreement to purchase the businesses from the defendants, plaintiff and Banks were separated from each other. Plaintiff testified that because title to their home was in joint tenancy, Banks assured her that her signature on the trust deed required by the defendants was just a formality.

Within two years of closing on the purchase of the businesses, Banks, Goldstein and Stugo, Inc., defaulted on their obligations on all of the promissory notes. Exchange National Bank held a first lien against all assets of the companies and moved to foreclose on the lien on all assets of the businesses, subsequently selling the assets to one Bernie Hirsch. Exchange National Bank took no action against plaintiff since she had not participated in the negotiations for agreement to purchase the businesses nor had she agreed to assume any responsibility for the repayment of defendants’ business loans with the Exchange National Bank which Banks and Goldstein had assumed as part of the agreement to purchase. Plaintiff was not a stockholder or officer in Stugo, Inc., nor had she ever worked for Electric, or Truck or Stugo.

In 1985, plaintiff decided to sell the property and brought suit to quiet title to remove the trust deed as a cloud on her title. Defendants countersued to foreclosure on the trust deed.

The record does not indicate what, if any, action was taken by defendants against Banks or Goldstein to recover on the promissory notes which are the underlying debt for which the trust deed was given as security. Defendants acknowledge that they have initiated no action to recover on the notes against Goldstein, their son-in-law, nor have they sought to foreclose on the trust deed given by Goldstein and his wife. Sometime after default on the notes and before the filing of the suit to quiet title, Banks filed a bankruptcy petition listing the promissory notes among his debts. He was adjudicated a bankrupt, and this debt was discharged.

Consideration for a mortgage or trust deed usually flows between the mortgage and mortgagor, but in certain situations the consideration can also flow to a third party. (Thackaberry v. Johnson (1907), 228 Ill. 149, 154, 81 N.E. 828, 830; Codo v. Union National Bank & Trust Co. (1977), 54 Ill. App. 3d 810, 812, 370 N.E.2d 140, 142.) The exception to the rule is the situation where the mortgagor is a stranger to the underlying transaction. (Turner v. Porter (1931), 264 Ill. App. 15.) Where a wife secures notes made to her husband and the creditor accepts the wife’s note for less than the debt, the court has found consideration for the mortgage has been given (Post v. First National Bank (1891), 138 Ill. 559, 564, 28 N.E. 978, 979), or where the mortgagee released unliquidated claims (Boley v. Whipple (1965), 62 Ill. App. 2d 448, 453, 211 N.E.2d 113, 115). Although the parties in State Bank v. Sorenson (1988), 167 Ill. App. 3d 674, 521 N.E.2d 587, were engaged but not married, the court found sufficient consideration for the woman’s mortgage made on the man’s behalf because the mortgagee bank had “cancelled [the man’s] preexisting debt, returned the collateral it was holding on that debt, and made a new cash disbursement,” noting that the mortgagee’s change in condition served as valid consideration. Sorenson, 167 Ill. App. 3d at 684, 521 N.E.2d at 594.

No case parallels the peculiar facts of the instant case, however, where an estranged wife is persuaded to cosign a trust deed on the house owned in joint tenancy with her estranged husband so that he can complete a wholly leveraged purchase of the businesses in which he works. In Peterson Bank v. Langendorf (1985), 136 Ill. App. 3d 537, 539, 483 N.E.2d 279, 280, the court noted that where there is a claim of insufficient consideration, the interests of the parties must be examined, and this is best done by “consideration of all instruments executed by the contracting parties in the course of the transaction, and such construction must take place within the context of the overall transaction.” Peterson Bank, 136 Ill. App. 3d at 540, 483 N.E.2d at 281, citing Tepfer v. Deerfield Savings & Loan Association (1983), 118 Ill. App. 3d 77, 454 N.E.2d 676.

Here, plaintiff’s only act was the cosigning of the trust deed with Banks. She was unrelated to any of the parties except Banks and had been separated from him for over a year. Plaintiff has not communicated with any of the parties except Banks since 1975 and was characterized at trial by defendant Steimberg, one of the sellers, as a stranger to the sale of the businesses except for her signature on the trust deed.

This situation is similar to that in Turner v. Porter (1931), 264 Ill. App. 15. In Turner, Fred L. White gave a check to Frederick A. Turner in repayment of a debt. The check was returned by the bank for insufficient funds. Turner pressured White to obtain security for the debt, and through a friend, White met Agnes Porter, with whom he had not previously been acquainted but whom he induced to execute a note for the amount due, securing it with a trust deed on some real property she owned. When White defaulted, Turner sued to foreclose on the trust deed, and Porter countersued to quiet title and to remove the mortgage as a cloud on her title.

There, the court noted that Porter had not understood the nature of the transaction and “did not know White and knew nothing about his business affairs except that he needed some financial assistance.” (Turner, 264 Ill. App. at 19.) No consideration passed to Porter, and none passed between White and Turner because White was as indebted to Turner as he had been before the transaction.

Here plaintiff was clearly a stranger to the underlying transaction and cosigned the trust deed only at Banks’ urging and upon his assurances that this was a mere formality since she and Banks held title to the house in joint tenancy. The trial court found that plaintiff received no consideration for her signature on the trust deed and properly held that as a stranger to the transaction, she was not liable for the underlying debt.

The underlying debt was discharged by Banks’ bankruptcy, thereby extinguishing any basis for the continuation of the trust deed as security for a nonexistent debt. We find no error in the trial court’s ruling granting plaintiff judgment removing the trust deed as a cloud on her title and denying defendants’ countersuit to foreclose their purported lien on the property. Since the underlying debt is discharged, there is no legal basis for foreclosure of the trust deed.

Because this case has been decided on the foregoing grounds we need not discuss the issue of laches.

For the foregoing reasons, the judgment of the trial court is affirmed.

Judgment affirmed.

EGAN, P.J., and QUINLAN, J., concur.

       Justice Quinlan participated in this opinion prior to his resignation from the court.