author: PRESIDING JUSTICE GREIMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD McCLELLAN, Defendant-Appellant.
    First District (3rd Division)
    No. 1—88—3794
    Opinion filed June 30, 1992.
    Rehearing denied September 10, 1992.

      John L. Conlon, Russell E. Marsh, Kathleen M. Burch, and Jennifer M. Baratta, all of Hopkins & Sutter, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Christine Perille, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE GREIMAN

delivered the opinion of the court:

Following a jury trial, defendant, Richard McClellan, was convicted of voluntary manslaughter and armed robbery, and received extended-term sentences of 60 years for armed robbery and 30 years for voluntary manslaughter to be served concurrently.

On appeal, defendant raises seven issues: (1) the legality of his arrest; (2) the procurement and use of his statements to the police; (3) the flawed jury selection; (4) the admission of certain evidence; (5) the refusal to instruct the jury as to theft; (6) jury verdicts inconsistent or unsupported by the evidence; and (7) the impropriety of the extended-term sentences for both armed robbery and voluntary manslaughter.

For the reasons which follow, we reduce defendant’s sentence for voluntary manslaughter to 15 years and affirm the trial court’s decisions on the remaining issues.

On October 31, 1986, about 7:30 a.m., a police officer found the body of the victim, Paulette Washington, in an alley directly beneath the open window of the victim’s third-floor apartment. The cause of death was subsequently determined to be multiple stab wounds combined with blunt trauma injuries. The officer entered the victim’s apartment and found her three minor children, who were taken to the police station.

About 8:30 a.m., Detective David Nowak arrived at the scene to investigate the victim’s death. Nowak noticed that the window in the victim’s apartment was open, the area around the window was stained with blood, and there were no signs of forced entry. Nowak interviewed several residents of the building, including Lorraine and Charlene Powell, who lived in another apartment on the third floor, Michael and Delores Banks, who lived in a first-floor apartment, and defendant, Delores Banks’ nephew, who was staying in the Bankses’ apartment.

At this first interview, defendant stated that he was in the Powells’ apartment until about 1 a.m., returned to the Bankses’ apartment, fell asleep, and woke up about 7 a.m., at which time he learned of the incident. The police did not note any blood on defendant’s clothing or any bandages on his hands.

Lorraine and Charlene Powell stated that they were asleep at the time of the incident, but believed that Michael Banks may have been involved because the previous day the victim had allowed the electric company to enter the building and turn off the electricity in two apartments, one of which was the Bankses’ apartment.

Detective Nowak located Michael Banks outside the building and took him to the police station for further questioning.

Michael Banks told Nowak that on the night of the incident, he had arrived home about 10 p.m. after having gone to his mother’s house to borrow money. He fell asleep watching television and listening to the radio and woke up about 4 a.m. He then observed defendant entering the apartment, returned to bed, and next awoke between 6:30 and 7 a.m.

Banks submitted to a polygraph examination, and the technician who performed the polygraph test opined that Banks had an idea of who committed the crime but did not actually participate in the crime himself.

The investigation of the victim’s death continued from November 1 through November 7. During this time, the victim’s six-year-old daughter, Alanda, told family members that the person who had hurt her mother sometimes resided in the building and had keys to her mother’s apartment.

On the evening of November 7, Michael Banks flagged down a police car and told the officers that he had information about the investigation. Banks was taken to police headquarters where he described the events of the night of the victim’s death. Banks said that defendant came into his apartment about 4 a.m. and gave him $50 to buy cocaine. Banks left to obtain the cocaine and when he returned to the apartment, he observed that defendant had a fresh bandage on one of his hands and a reddish-brown stain on one of his shoes. Banks said that he refrained from giving this information to the police earlier because he did not want to admit his involvement in drug use.

The next day Detective Nowak verified this information with Michael Banks and reinterviewed Charlene Powell. Charlene stated that on the night of the incident, defendant was drinking in her apartment until about 3:30 a.m. Defendant asked Charlene to lend him $10 to purchase cocaine. When she refused to loan money to defendant, he left.

On November 9, 1986, around noon, Detective Nowak and his partner went to defendant’s grandmother’s house, knocked on the front door and defendant’s grandmother let the police officers in her apartment, where they found defendant asleep on the couch. Detective Nowak testified that he told defendant he was continuing the investigation and wanted to interview defendant again and that defendant agreed to accompany him to the police station. Defendant was transported to the station in the unmarked detectives’ car and was not handcuffed.

Defendant was taken to a windowless interview room which contained a desk and two chairs. After reiterating his original statement, defendant denied asking Charlene Powell for $10 for cocaine and denied giving Michael Banks $50 to buy cocaine. At the request of the police, defendant agreed to take a polygraph examination.

About 4 p.m. the police took defendant to the polygraph unit located in another building. After the test was completed, the polygraph examiner opined that defendant was not being truthful about his knowledge of or participation in the death of the victim.

Police returned defendant to an interview room, told him that he was under arrest, and advised him of his Miranda rights. About 11 p.m., defendant was placed in a lineup viewed by Alanda, the victim’s daughter. Alanda was unable to identify anyone.

The following day, November 10, Detective Nowak reinterviewed Michael Banks, who stated that the night of the incident defendant was wearing black loafer dress shoes. The police took defendant’s shoes, which he was wearing, and brought them to the crime lab. The serologist, Pam Fish, tested the shoes and found blood present on the right shoe and the instep area of the shoe; however, the amount of blood present was insufficient to perform further tests to determine whether the blood was animal or human.

About 4 p.m. Detective Nowak informed defendant that traces of blood had been discovered on his shoes and again advised defendant of his Miranda rights. Defendant again denied any involvement in the crime. The investigation was then turned over to two other detectives, Dennis Keane and Greg Baiocchi.

The evening of November 10, after informing defendant of his Miranda rights, Detectives Keane and Baiocchi questioned defendant, who denied knowledge of anything about the death of the victim. Defendant was told that his statements were inconsistent with the information given by Michael Banks. The police then allowed defendant to read Michael Banks’ statements. After reading his uncle’s statements, defendant gave a statement relating the events which led to the death of the victim.

In his statement, defendant said that he had gone to the victim’s apartment during the afternoon of October 30, 1986, to use her telephone and ask if he could borrow some money. The victim told defendant to come back later. About 2:30 a.m. on October 31, defendant returned to the •victim’s apartment. The victim told defendant that “he would have to be with her or she would not give him any money.” When defendant told her he could not comply, an argument began. When defendant walked to the apartment door, the victim came out of the kitchen with a butcher knife. Defendant grabbed the victim’s wrists and threw her to the floor. When she landed on the floor, she somehow stabbed herself once. Defendant then picked up the knife and stabbed the victim five or six times. Defendant went into the bedroom, found the victim’s purse and took about $100. While he was in the bedroom, he heard the window open. When he looked into the living room, defendant saw that the victim was gone. Defendant then went to the Bankses’ apartment, told Michael Banks what had happened, and gave Banks $50 to buy cocaine to calm him down.

Defendant filed a motion to quash his arrest and suppress evidence and his statements. At the suppression hearing, defendant testified that on November 9, 1986, when the police entered his grandmother’s house, they told defendant they wanted to ask him some more questions. Defendant also testified that he “went willingly” and was not handcuffed but thought he was under arrest at this time.

When they arrived at the police station, defendant testified that he was placed in the interview room, handcuffed to the wall, and denied permission to call his parents. After being questioned for about one hour, the police took his shoes and left. When the police returned, defendant was asked to take a lie detector test and he agreed.

After taking the lie detector test, defendant was again placed in the interview room and denied permission to call his father to get a lawyer. After defendant denied knowing anything, the police took his shoes, shirt, and jacket and left. When they returned, the police told defendant that blood had been found on defendant’s clothing, accused him of committing the crime, and started punching him.

Defendant further testified that he was then put in a lineup and was told that the victim’s daughter identified him. Defendant again asked to call his father and get a lawyer, but his requests were denied. Defendant testified that he was physically mistreated and verbally abused. Thereafter, defendant was taken from the interview room, formally charged and allowed to call his stepfather. During the phone conversation, defendant testified that Detective Nowak snatched the phone and threatened to “wrap the cord around [defendant’s] neck” if he told his father that the police were trying to make him say anything.

After being charged, according to his testimony, defendant was taken to Cook County jail and examined by a doctor. Defendant did not tell the doctor that he had been injured or beaten by the police.

At some time on November 10, defendant saw his aunt, Delores Banks, for about five minutes in the interview room. His aunt provided defendant with cigarettes. About 30 minutes later, defendant gave his statement because he “was tired of [the police] hitting on” him. Defendant testified that prior to the arrival of the assistant State’s Attorney to take his statement, he had not been advised of his Miranda rights. Defendant signed a document, after the assistant State’s Attorney read it to him, stating that he had been well treated by the police.

Although his aunt testified that defendant told her he had been beaten and the police kicked his chair out from under him, defendant did not show her any area of his body where he had been beaten and she did not notice any marks on defendant.

Defendant also testified that he had not been given any food during his detention but was allowed to use rest room facilities whenever he wanted.

The police officers involved denied any improper conduct and testified that defendant was given food.

Following the suppression hearing, the trial court denied defendant’s motions. Regarding defendant’s motion to quash his arrest, the trial court first found that defendant was not under arrest when he was brought from his grandmother’s house to the police station, stating that “the totality of the evidence is that he [defendant], in fact, went with those officers voluntarily and he was not under arrest at that point.”

Next the trial court found that defendant was placed under arrest after the polygraph examination and that the facts and circumstances known to the police at that time established probable cause.

The trial court reasoned that the police knew or had a reasonable basis to believe that: (1) defendant knew the victim; (2) defendant was staying in the same apartment building; (3) defendant may not have been telling the truth in light of the inconsistencies in the statements made by defendant and other people; (4) defendant had come into some money in a very short period of time; (5) there were no signs of forced entry into the victim’s apartment, indicating that someone who stayed in the building had been in the victim’s apartment; and (6) defendant had an injury to his hand and stains of some type on his shoes on the date in question.

The trial court further found that defendant was advised of his Miranda rights on numerous occasions and that he freely and voluntarily made his statements to the police on the day after his arrest. The trial court believed that there was no evidence that defendant had been beaten, struck or injured in any way, and that the police officers’ testimony denying striking defendant was corroborated by the testimony of Delores Banks, who observed no injury to defendant when she saw him on November 10, by the testimony of the assistant State’s Attorney, who indicated that defendant was well when he saw him, and by defendant’s statements to the assistant State’s Attorney and the paramedics indicating that he had suffered no injuries.

In addition, the trial court found that defendant’s will had not been improperly overcome by the actions of the police or by the treatment he received. The trial court stated that defendant was not continuously interrogated during his period of confinement, had access to the telephone and relatives, sustained no physical injury, and was not misled or tricked by the police. Moreover, the trial court explained that defendant had placed his credibility in issue when he chose to testify and the court did not believe his testimony.

The jury found defendant not guilty of felony murder but convicted him of voluntary manslaughter and armed robbery.

Defendant first contests the time and legality of his arrest. He submits that the conduct of the police, his belief that he was under arrest, his transportation to the police station in a police vehicle with two officers, and the length and place of his detention are sufficient indicia of an arrest at his grandmother’s home.

Considering the consensual entry into the premises and that defendant voluntarily accompanied the police to the station, the trial court found defendant was not placed under arrest until later that same day at the police station.

A trial court’s finding as to the time of arrest cannot be disturbed unless it is manifestly erroneous. (People v. Rimmer (1985), 132 Ill. App. 3d 107, 476 N.E.2d 1278.) Moreover, a reviewing court will not substitute its judgment for that of the trial court in resolving conflicts in the evidence.

“An arrest occurs when the circumstances are such that a reasonable person, innocent of any crime, would conclude that he was not free to leave.” (In re D.G. (1991), 144 Ill. 2d 404, 409, 581 N.E.2d 648.) Courts look to the totality of the circumstances surrounding the encounter to determine if an arrest occurred. People v. Graham (1991), 214 Ill. App. 3d 798, 809, 573 N.E.2d 1346.

“In Illinois, a valid arrest occurs when: police officers inform defendant of a violation; defendant submits to their control; and the evidence clearly shows that the officers intended to effect the arrest and defendant so understood them.” (Emphasis in original.) Rimmer, 132 Ill. App. 3d at 111.

Factors to be considered in determining whether or not an arrest occurred include the presence or absence of a formal declaration of arrest and other routine procedures associated with an arrest, such as handcuffing, fingerprinting, and photographing. (People v. Clay (1984), 124 Ill. App. 3d 140, 148, 463 N.E.2d 929.) The subjective understanding of the arrestee is not relevant to this analysis, but rather what a reasonable, innocent man should have thought under the circumstances. Clay, 124 Ill. App. 3d at 148.

To support his position that the arrest was effected at the time he left his grandmother’s house, defendant incorrectly relies on People v. Vega (1990), 203 Ill. App. 3d 33, 560 N.E.2d 983. In Vega, the 16-year-old defendant had previously refused to comply with the police officers’ repeated attempts to contact him; police required the defendant to stand with his legs spread apart and searched him as they left his home; although refusing to take a lie detector test, he was forced to go to a crime laboratory for a polygraph test; and the police officers testified that they may have physically restrained the defendant if he had attempted to leave. The court also considered that no probable cause existed to justify the defendant’s arrest. These are very different circumstances than those in the case before us.

“A citizen’s assumption that he is required to cooperate with police should not be equated with an arrest.” Rimmer, 132 Ill. App. 3d at 112; People v. Johnson (1989), 187 Ill. App. 3d 756, 544 N.E.2d 392.

In Johnson, the appearance of four policemen at the defendant’s home, their request that he dress and accompany them to the police station, the observation by an officer while he dressed, no questions asked of the defendant at home, and no display of weapons or handcuffing did not constitute an arrest. Johnson, 187 Ill. App. 3d at 770.

Similarly, in People v. Hunley (1989), 189 Ill. App. 3d 24, 545 N.E.2d 188, no arrest occurred where a police officer testified that the defendant agreed to go to the police station for questioning, was not handcuffed or restrained in any way, and was not advised of his Miranda rights notwithstanding the defendant’s contrary testimony that he was handcuffed in the apartment hallway and that he believed he had no choice but to go. Hunley, 189 Ill. App. 3d at 36.

We believe that the circumstances in Johnson and Hunley are similar to the situation in the present case. Thus, the trial court’s finding that defendant was placed under arrest at the police station, rather than at his grandmother’s house, is not manifestly erroneous given the consensual nature of the entry into her home, the lack of indicia of arrest, and defendant’s testimony that he accompanied the police “willingly.”

Defendant next asserts that even if the time of arrest is determined to be at the police station, his arrest was still illegal because the police improperly relied on polygraph results. Without the polygraph results, defendant argues, the police did not have probable cause to arrest him and, in any event, the results of the polygraph tests of defendant and Michael Banks should not have been admitted at the suppression hearing.

The State responds that defendant waived this issue by failing to state specifically in his motion for a new trial that the police improperly relied on the polygraph test. However, in any event, the police were aware of sufficient facts to reasonably believe that defendant had committed the crime and did not improperly rely upon the results from the polygraph tests.

The State asserts that the polygraph tests were introduced at the suppression hearing to show that the motivation for defendant’s decision to make a statement to police was other than police brutality.

Initially we find that defendant has not waived this issue. To preserve an issue for appeal, an objection must be made at trial and the issue must be included in a written post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124.) The record reveals that defendant objected to the introduction of the polygraph test results at the suppression hearing and defendant’s post-trial motion raised the issue of the trial court’s denial of his motions to quash his arrest and suppress his statement, expressly encompassing his arguments on the motions.

The parties agree that the results of a polygraph test cannot be the basis for making a probable cause determination. People v. Booker (1991), 209 Ill. App. 3d 384, 394, 568 N.E.2d 211; People v. Haymer (1987), 154 Ill. App. 3d 760, 769, 506 N.E.2d 1378.

A probable cause determination, however, is governed by commonsense considerations and the totality of the facts and circumstances known to the police officers “such that a reasonably prudent person would believe that the suspect is committing or has committed a crime.” (People v. Montgomery (1986), 112 Ill. 2d 517, 525, 494 N.E.2d 475.) The calculation used to determine the existence of probable cause concerns the “ ‘probability of criminal activity,’ ” not “ ‘proof beyond a reasonable doubt.’ ” Montgomery, 112 Ill. 2d at 525, quoting People v. Tisler (1984), 103 Ill. 2d 226, 236, 469 N.E.2d 147.

A trial court’s finding as to probable cause will not be disturbed unless it is shown to be manifestly erroneous. (People v. Haymer (1987), 154 Ill. App. 3d 760, 767, 506 N.E.2d 1378.) It is the function of the trial court to evaluate the credibility of witnesses and resolve conflicts in their testimony. Rimmer, 132 Ill. App. 3d at 112.

At the time of defendant’s arrest, the police investigation had gleaned sufficient information to connect defendant to the crime: the lack of any signs of forced entry into the victim’s apartment and the statement by the victim’s daughter that her mother was attacked by a person who resided in the building indicated that the perpetrator knew the victim and lived in the same apartment building; defendant knew the victim, resided in the victim’s apartment building and was present in the building during the entire night of the incident; defendant’s effort to obtain money from Charlene Powell and his subsequent possession of cash as indicated by Michael Banks’ statement that defendant gave him $50 about 4 a.m.; Banks’ observation that defendant had injured his hand and stained his shoes; and discrepancies contained in the statements of the Powells, Michael Banks, and defendant which suggested that defendant may not have been telling the truth to the police.

All of these facts and circumstances indicate the police had probable cause to arrest defendant without reliance upon the polygraph tests.

To the extent, if any, the trial court relied on the results of the polygraph examination in his probable cause determination, such reliance is error. However, since we have determined that sufficient information existed to establish probable cause, any consideration of the polygraph test by the trial court was harmless error.

Furthermore, we reject defendant’s argument that the introduction of the results of the polygraph tests at the suppression hearing requires reversal. To support this proposition, defendant primarily relies on cases dealing with the inadmissibility of polygraph evidence at trial (People v. Baynes (1981), 88 Ill. 2d 225, 430 N.E.2d 1070), in a sentencing hearing (People v. Szabo (1983), 94 Ill. 2d 327, 447 N.E.2d 193), and in ruling on a post-trial motion which raised the sufficiency of the evidence (People v. Yarbrough (1982), 93 Ill. 2d 421, 444 N.E.2d 493). Unlike the cases relied on by defendant, the issue in the present case arose at a suppression hearing.

The suppression hearing addressed two motions by defendant: (1) a motion to quash his arrest and suppress evidence; and (2) a motion to suppress his statements. Although polygraph tests cannot be .used to establish probable cause, they can be considered as a factor in determining whether a statement was given voluntarily. (People v. Jackson (1990), 198 Ill. App. 3d 831, 846, 556 N.E.2d 619 (the evidence showing that the defendant failed a polygraph examination was admissible for the limited purpose of showing that it was his failure to pass the test, rather than the alleged threats of violence by the police, which motivated the defendant to confess).) In Jackson the court found:

“The underlying rationale for both Baynes and Yarbrough was the fear that the fact finder would consider the polygraph results as conclusive. Neither Baynes nor Yarbrough dealt with the admissibility of polygraph evidence for the limited purpose of determining the voluntariness of a confession.” (Jackson, 198 Ill. App. 3d at 846.)

Moreover, a trial court, without a jury, is presumed to consider only competent evidence. (People v. Padilla (1988), 173 Ill. App. 3d 357, 361, 527 N.E.2d 700.) To overcome that presumption, the record must affirmatively show the contrary. Padilla, 173 Ill. App. 3d at 361.

Accordingly, we hold that the admission of the results of the polygraph examination in the dual purpose suppression hearing of the present case does not require reversal.

Defendant next argues that his statements to police should have been suppressed because they were (1) the result of an illegal arrest; (2) taken in disregard of his right to counsel; and (3) made involuntarily-

Our finding that defendant’s arrest was valid obviates the need to consider defendant’s first argument. People v. Clay (1973), 55 Ill. 2d 501, 506, 304 N.E.2d 280; Rimmer, 132 Ill. App. 3d at 115.

Second, defendant asserts that he requested an attorney at least twice prior to making his statements and that the police ignored his requests. Thus, defendant submits that his statements were illegally obtained because they were taken in disregard of his right to counsel.

It is well established that when an individual requests an attorney, all interrogation must cease until an attorney is present. (Miranda v. Arizona (1966), 384 U.S. 436, 474, 16 L. Ed. 2d 694, 723, 86 S. Ct. 1602, 1627-28.) The State bears the burden of proving that a defendant knowingly waived his Miranda rights, but proof beyond a reasonable doubt of waiver is not required. (People v. Rogers (1988), 123 Ill. 2d 487, 495, 528 N.E.2d 667.) After observing the witnesses testify at a suppression hearing, a trial court is entitled to disbelieve the defendant’s version of what transpired. People v. Gacho (1988), 122 Ill. 2d 221, 238, 522 N.E.2d 1146.

Defendant’s own testimony at the suppression hearing was the only evidence presented to indicate that defendant invoked his right to counsel before making any inculpatory statements. Although defendant acknowledged that before giving his oral statement to the police and his written statement to the assistant State’s Attorney he had talked to his stepfather on the telephone and had visited with his aunt in person, neither relative substantiated defendant’s claim that he had requested a lawyer.

The testimony of the police officers and the assistant State’s Attorney contradicted defendant’s testimony on this issue. The trial court specifically found that defendant’s testimony was not believable and that he had received his Miranda warnings on several occasions prior to giving his oral and written statements.

In light of the evidence adduced at the suppression hearing and the presumption afforded the trial court’s ruling, we find that defendant’s statements were not taken in disregard of an invocation for counsel.

Defendant next asserts that his statements were made involuntarily and thus should have been suppressed.

A confession is voluntary when found to have been made freely and without compulsion and if the defendant’s will was not overcome at the time he confessed so as not to be the product of rational intellect and free will. (People v. Perez (1992), 225 Ill. App. 3d 54, 66, 587 N.E.2d 501.) In determining the voluntariness of the statements, courts must consider the totality of the circumstances (Perez, 225 Ill. App. 3d at 66), including both the characteristics of the accused and the details of the interrogation (Hunley, 189 Ill. App. 3d at 38). The burden is on the State to establish by a preponderance of the evidence that a confession is voluntary. Perez, 225 Ill. App. 3d at 65.

A reviewing court will not disturb a finding on the issue of whether a confession is voluntary unless it is contrary to the manifest weight of the evidence and may consider the evidence presented at the suppression hearing and at trial. People v. Caballero (1984), 102 Ill. 2d 23, 464 N.E.2d 223; Perez, 225 Ill. App. 3d at 66.

We hold that the trial court’s finding of voluntariness is not against the manifest weight of the evidence. The record reveals that defendant was an adult with no indication of limited mental capacity. As previously discussed, defendant was not illegally detained and his allegations of physical and verbal abuse were refuted by other testimony, by the written statement signed by defendant that he had been treated well and not threatened, by the stipulated testimony of a hospital employee who stated that defendant told him during a physical examination on November 11 at Cook County jail that he was in good health and had no injuries, and by the lack of physical evidence of injury. Moreover, the evidence reveals that defendant was advised of his Miranda rights on several occasions prior to making any inculpatory statements. Furthermore, detention in an interview room which lacks “comfortable furnishings fails to indicate the existence of a coercive element in the circumstances surrounding the confessions.” (People v. Stachelek (1986), 145 Ill. App. 3d 391, 402, 495 N.E.2d 984.) The evidence presented also revealed that defendant was fed, notwithstanding defendant’s testimony to the contrary.

Defendant also argues that his statements were coerced because he was not brought before a judge for a preliminary hearing between the time of his arrest and his statements. Since defendant did not raise this issue in his motion to suppress, the trial court did not consider this factor and the issue is waived on review. Even if we were to consider this factor, it would not suggest a different result since unnecessary delay is only one of the myriad factors to be considered and unnecessary delay “will not render a confession per se invalid.” People v. Kokoraleis (1986), 149 Ill. App. 3d 1000, 1012, 501 N.E.2d 207.

The totality of the circumstances in the present case supports the trial court’s finding that defendant’s statements were voluntarily made.

In the third issue raised on appeal, defendant asserts that the trial court’s refusal to “life qualify” the jury constituted reversible error because his right to an impartial jury was violated. Defendant argues that his jury was biased toward the prosecution because the trial court “death qualified,” but did not “life qualify,” the jury. Defendant urges this court to follow cases from other States, Stanford v. Commonwealth (Ky. 1987), 734 S.W.2d 781, and Patterson v. Commonwealth (1981), 222 Va. 653, 283 S.E.2d 212.

At the time of trial, the Illinois Supreme Court had repeatedly held that a trial court is not required to “life qualify” a jury. (People v. Jackson (1991), 145 Ill. 2d 43, 582 N.E.2d 125; People v. Brisbon (1985), 106 Ill. 2d 342, 478 N.E.2d 402; cf. Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770 (death-qualifying questions are appropriate).) Accordingly, the trial court’s refusal to pose life-qualifying questions to the prospective jurors did not violate the constitutional requirements of due process at that time.

However, in a case originating in Illinois, the United States Supreme Court has recently held that a trial court’s refusal to “life qualify” potential jurors in a capital case when requested to do so is inconsistent with the due process clause of the fourteenth amendment. (Morgan v. Illinois (1992), 504 U.S._, 119 L. Ed. 2d 492, 112 S. Ct. 2222.) In Morgan the Court reversed the death sentence imposed on the defendant who had been convicted of first-degree murder and remanded for a new sentencing hearing. It is evident from the Morgan decision that life-qualifying questions, when requested, will now be required in cases involving capital offenses.

Unlike Morgan, the present case involves a defendant who, although charged with a capital crime, was convicted of voluntary manslaughter, not murder, and sentenced to a prison term, not death. Moreover, the present defendant was sentenced by a judge, not a jury. Although a “reverse Witherspoon” or “Morgan" inquiry would have been appropriate at voir dire, the jury’s verdict of manslaughter makes such inquiry moot.

The fourth issue raised by defendant is whether the trial court erred in admitting evidence of the blood spot on defendant’s shoes and the results of the tests performed on the blood spot. The test results showed that blood was present on the instep area of defendant’s right shoe but the amount of blood was insufficient to perform any further tests. Thus, the blood type could not be established and no determination was made as to whether it was human or animal blood.

Defendant asserts that the admission of the blood spot on his shoe and the subsequent test results constitutes reversible error because the State failed to establish a nexus between the blood spot and either defendant, the victim or the crime.

The State contends that the evidence was properly connected to both defendant and the crime. Alternatively, the State maintains that the admission of this evidence, even if improper, did not prejudice defendant since (1) the jury was aware the blood was not conclusively determined to be human and thus could have attached little weight to this evidence; and (2) the other evidence against defendant was strong.

“The general rule is that physical evidence may be admitted provided there is proof to connect it with the defendant and the crime.” (People v. Free (1983), 94 Ill. 2d 378, 415, 447 N.E.2d 218.) Proof of the connection between the defendant and the crime may be circumstantial and relevance is the basic question in determining the sufficiency of the nexus. People v. Valentino (1985), 131 Ill. App. 3d 257, 260, 475 N.E.2d 627.

“[Rjelevant evidence means evidence having any tendency to make the existence of any material fact more probable or less probable than it would be without the evidence.” Free, 94 Ill. 2d at 415.

We believe that a sufficient connection was established such that the trial court did not abuse its discretion in admitting defendant’s shoes and the results of the tests performed on the stain found on one of the shoes. The shoes clearly were sufficiently connected to defendant since he was wearing them at the time they were confiscated by the police. The statement and testimony of Michael Banks established the type of shoes, i.e., black loafers, worn by defendant and that the stains on the shoes were present when he saw defendant shortly after the victim was killed. Although Banks could not positively identify the shoes at trial, he testified the shoes admitted into evidence appeared to be the ones defendant was wearing on the morning of the incident and were similar to the shoes which were bloodstained. Moreover, the victim’s apartment was splattered with blood when inspected by the police. The tests determined that the stain on the shoe was blood even though the analysis could not substantiate whether the blood was human or animal. The inconclusiveness of the tests and Banks’ testimony only impact the weight, not the admissibility of the evidence.

The cases relied upon by defendant are distinguishable. (City of Chicago v. Brown (1978), 61 Ill. App. 3d 266, 377 N.E.2d 1031; People v. Rogers (1976), 42 Ill. App. 3d 499, 356 N.E.2d 413.) In Brown, the defendant, who was convicted of resisting a police officer while attempting to enter a theater for a music concert without a ticket, sought to introduce into evidence her allegedly bloodstained jacket to support her claim that a police officer struck her in the nose contrary to the officer’s testimony which maintained that the defendant caused her nose to bleed at the precinct house and refused to accept first aid. The Brown court found that the exclusion of the jacket was proper because the defendant offered no proof that the blood appeared on her coat on the night of the incident and an inspection of the coat did not reveal any bloodstains on the jacket. In contrast, the present case includes evidence that Michael Banks saw the stains on defendant’s shoes on the morning of the incident and the tests revealed that the stains on the shoes were blood.

In Rogers, the court found that the admission of a sheet and the victim’s shorts and undershirt, all stained with blood, was error because no evidence was introduced to establish that the victim was wearing the items of clothing at the time of the incident nor was any connection whatsoever made to the sheet. Moreover, the State failed to present any testimony regarding the results of the analysis of these items. Most importantly, the prosecutor in Rogers repeatedly and improperly made statements regarding these items which were not based upon the evidence admitted at trial. Unlike Rogers, the present case includes evidence establishing that the blood was seen on defendant’s shoes shortly after the victim was killed, the shoes were confiscated directly from defendant, a serologist testified as to the results of the tests performed on the shoes, and no allegation exists that the prosecutor made improper arguments regarding the shoes.

A logical inference can support the admission of physical evidence and we believe that under the circumstances of this case, a logical inference was drawn that defendant, the bloodstains, and the shoes were connected to the death of the victim. People v. Fletcher (1978), 66 Ill. App. 3d 502, 515, 383 N.E.2d 1285.

Defendant next contends that the evidence entitled him to an instruction on the offense of theft and that the trial court erred in refusing to give such a tendered instruction. We disagree.

Defendant was indicted for the offenses of murder and armed robbery. Defendant requested and received a jury instruction on voluntary manslaughter, which is a lesser included offense of murder.

An accused generally “cannot be convicted of an offense that was not charged unless the offense of which he is found guilty is a lesser included offense of the one charged.” (People v. Schmidt (1988), 126 Ill. 2d 179, 183, 533 N.E.2d 898.) This court specifically held that theft is not a lesser included offense of armed robbery. People v. Trotter (1988), 178 Ill. App. 3d 292, 299, 533 N.E.2d 94; cf. People v. Rivers (1990), 194 Ill. App. 3d 193, 550 N.E.2d 1179 (discusses the split of authority in Illinois on this issue and distinguishes Trotter).

In Trotter, this court found that the “two crimes [armed robbery and theft] are distinct. (People v. McCarty (1983), 94 Ill. 2d 28, 445 N.E.2d 298.) Theft requires only an intended, unauthorized deprivation of property, while robbery requires the use of force, regardless of intent. [Citation.] Since theft is not a lessor [sic] included offense of armed robbery, a defendant charged with armed robbery is not entitled to a theft instruction.” Trotter, 178 Ill. App. 3d at 299.

“[W]here some of the elements of the crime charged themselves constitute a lesser crime, the defendant, if the evidence justifies it, is entitled to an instruction which would permit a finding of guilt of the lesser offense.” (People v. Sanders (1988), 168 Ill. App. 3d 295, 305, 522 N.E.2d 715; accord People v. Roberts (1989), 189 Ill. App. 3d 66, 72, 544 N.E.2d 1340 (“a defendant is entitled, under certain circumstances, to have the jury instructed as to an offense less serious than that with which the defendant is charged”) (emphasis in original).) Both Sanders and Roberts held that the trial court’s refusal to instruct on the lesser offenses requested did not constitute error.

Nonetheless, where “the evidence is sufficient for a conviction on the greater offense, it is not reversible error to instruct only as to that offense.” (People v. Fonville (1987), 158 Ill. App. 3d 676, 685, 511 N.E.2d 1255.) Even if an instruction on a lesser offense might have been given, “the failure to give an otherwise appropriate jury instruction requires reversal only when the defendant was so prejudiced by that failure as to affect the outcome of the verdict.” Fonville, 158 Ill. App. 3d at 687-88.

We believe that no such prejudice is present in the instant case.

Defendant next asserts that the jury verdicts which acquitted him of murder and convicted him of voluntary manslaughter and armed robbery are legally and logically inconsistent.

“Legally inconsistent verdicts are verdicts where the same essential element of each crime is found to exist and not to exist and both crimes arise out of the same set of facts. [Citations.] Legally inconsistent verdicts are invalid and the convictions must be reversed. [Citation.] However, a jury may acquit a defendant on one or more counts on a multicount indictment in the belief that the count on which it convicted the defendant will provide sufficient punishment.” People v. Sandy (1989), 188 Ill. App. 3d 833, 845, 544 N.E.2d 1248 (acquittal on first degree murder and conviction on felony murder based on aggravated battery were not legally inconsistent in a case involving the death of a child); see People v. Bridges (1989), 188 Ill. App. 3d 155, 157-58, 544 N.E.2d 40 (acquittal of murder and conviction of voluntary manslaughter were not inconsistent “because together they implicitly show that the jury rejected the theory that defendant intended to kill [the victim], and instead found that defendant had an unreasonable belief in the need to defend himself”).

Accordingly, we find that the jury verdicts in this case are not legally inconsistent.

This court explained logically inconsistent verdicts as follows:

“Logical inconsistency between verdicts involves the acceptance and rejection of the same theory of the case for the State or the defense, and may exist between a conviction of one crime and an acquittal of another, where both arise out of the same facts but have different essential elements. [Citation.] If logically inconsistent verdicts cannot be construed otherwise, their inconsistency is a factor contributing to the existence of a reasonable doubt of guilt to be considered upon review of a contention that a defendant was not proven guilty beyond a reasonable doubt. However, verdicts that are only logically inconsistent do not per se require a reversal since it may be determined upon review that there was, nonetheless, sufficient evidence to support the defendant’s conviction.” (People v. Cobbins (1987), 162 Ill. App. 3d 1010, 1024, 516 N.E.2d 382.)

Moreover, this court noted that “[i]t is well established that the jury’s historic power of lenity prevails over traditional doctrine concerning inconsistent verdicts.” Cobbins, 162 Ill. App. 3d at 1025.

In light of these principles, we find that any logical inconsistency which may be deciphered from the jury verdicts in this case does not mandate reversal.

Defendant next asserts that there was insufficient evidence to support an armed robbery conviction because the State failed to prove beyond a reasonable doubt that the force used by defendant was used for the purpose of depriving the victim of money.

In reviewing the sufficiency of evidence to support a criminal conviction, “ ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis omitted.) People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 461, quoting Jackson v. Virginia (1979), 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573-74, 99 S. Ct. 2781, 2788-89.

At trial the jury heard not only defendant’s confession to the police and the assistant State’s Attorney, but also heard the testimony of Michael Banks, who stated that defendant had planned the robbery of the victim and had confessed to Banks after the crimes were committed. From our examination of the record, in the light most favorable to the prosecution, we believe that a rational jury could find defendant guilty of voluntary manslaughter and armed robbery.

Finally, defendant contends that the trial court abused its discretion in sentencing him to an extended term of 60 years for armed robbery and an extended term of 30 years for voluntary manslaughter. Defendant argues that the statutory criteria for an extended-term sentence were not satisfied and that the trial court erred in considering the death of the victim and failed to consider the mitigating factors.

A reviewing court may not alter a sentencing decision absent an abuse of discretion by the trial court and may not substitute its judgment for that of the trial court merely because it would have balanced the appropriate factors differently. People v. Cox (1980), 82 Ill. 2d 268, 279-80, 412 N.E.2d 541; People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

Aggravating factors authorized by statute which a court may consider include whether or not the defendant’s conduct caused serious harm and the sentence is necessary to deter others from committing the same act. Ill. Rev. Stat. 1985, ch. 38, pars. 1005 — 5—3.2(aXl), (aX7).

In applying the statutory aggravating factor that the defendant’s conduct caused serious harm, a trial court may consider “the force employed and the physical manner in which the victim’s death was brought about” in sentencing a defendant on a conviction for voluntary manslaughter. (People v. Saldivar (1986), 113 Ill. 2d 256, 271-72, 497 N.E.2d 1138.) However, it is improper to consider the death of the victim where the death is implicit in the offense like voluntary-manslaughter. Saldivar, 113 Ill. 2d at 271-72.

At sentencing in the present case, the trial court stated:

“In aggravation and mitigation, we consider and are considering whether — or may consider whether an individual’s actions caused serious harm. Well, in your case, Mr. McClellan, the jury found that your actions caused the ultimate harm, that being death.
We may also consider and do consider in this case whether the sentence is necessary to deter others from committing the same or similar crimes.” (Emphasis added.)

The trial court made no mention of the amount of force used or the manner in which the defendant killed the victim.

We recognize that “it is unrealistic to suggest that the judge in sentencing the defendant must avoid mentioning the fact that someone has died or risk committing reversible error.” (People v. Green (1991), 209 Ill. App. 3d 233, 248, 568 N.E.2d 92, citing People v. Martin (1983), 112 Ill. App. 3d 486, 445 N.E.2d 795.) However, where the trial court expressly states that it was considering the death of the victim, the court errs. Green, 209 Ill. App. 3d at 248.

In Green, this court found that the trial court erred by improperly considering the death of the victim when it stated, during sentencing, “ ‘I am taking into consideration how your conduct caused serious harm, it caused serious harm, the worst possible loss to the victim of the murder, her life was taken.’ ” Green, 209 Ill. App. 3d at 248.

Similarly, this court found that the trial court improperly considered the death of the victim when it stated that “ ‘the defendant’s conduct caused serious harm. The most serious fatality. That is a factor in aggravation which the Court must consider in imposing a more severe sentence.’ ” (People v. Moore (1988), 178 Ill. App. 3d 531, 544, 533 N.E.2d 463.) In Moore, the court found that the comment “[t]he most serious fatality” revealed that the trial judge had improperly focused on the victim’s death rather than the manner in which the defendant killed the victim and the amount of force used. Moore, 178 Ill. App. 3d at 544.

The Illinois Supreme Court concluded that the trial judge improperly considered the victim’s death as an aggravating factor in sentencing the defendant where the trial judge stated “ ‘in committing the felony [involuntary manslaughter] the defendant inflicted serious bodily injury to another resulting in death.’ ” People v. Martin (1988), 119 Ill. 2d 453, 461, 519 N.E.2d 884.

We believe that the comments made by the trial court at sentencing in the present case are so analogous to the remarks made in Green, Moore and Martin as to be indistinguishable. Thus, we find that the trial court erred by improperly considering the death of the victim in sentencing.

Notwithstanding the error, resentencing is not required where any consideration given to the improper factor was insignificant and where the court did not rely on this factor alone in sentencing the defendant. (Green, 209 Ill. App. 3d at 248; Moore, 178 Ill. App. 3d at 544.) The Moore court affirmed the sentence of 40 years’ imprisonment for murder and the Green court upheld the extended-term sentence of 60 years’ imprisonment for murder.

From our review of the total sentencing hearing, we find that the trial court gave minimal weight to the improper aggravating factor and appropriately considered other proper factors, including deterrence, rehabilitation, protection of society, and the brutal nature of the offense.

Moreover, an extended-term sentence may be imposed “[w]hen a defendant is convicted of any felony and the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—3.2(bX2).) Defendant was convicted of two felonies, voluntary manslaughter and armed robbery. The trial court found that the circumstances of this case, including the infliction of multiple stab wounds and the trauma to the various parts of the victim’s body, evidenced brutal and heinous conduct on the part of defendant. Given the facts of this case, we cannot say that the trial court abused its discretion in imposing an extended-term sentence.

We also reject defendant’s argument that the trial court failed to consider mitigating factors. “[W]here mitigation evidence is before the court, it is presumed that the sentencing judge considered the evidence, absent some indication, other than the sentence imposed, to the contrary.” People v. Bergman (1984), 121 Ill. App. 3d 100, 109, 458 N.E.2d 1370.

Defendant correctly asserts, and the State agrees, that the extended-term sentence for voluntary manslaughter should be reduced because he was also sentenced to an extended term for armed robbery.

“[W]hen a defendant has been convicted of multiple offenses of differing classes, an extended-term sentence may only be imposed for the conviction within the most serious class and only if that offense was accompanied by brutal and heinous behavior.” (People v. Jordan (1984), 103 Ill. 2d 192, 206, 469 N.E.2d 569, 575.) Voluntary manslaughter (Class 1 felony) is a less serious offense than armed robbery (Class X felony).

Accordingly, as authorized by Supreme Court Rule 615(bX4) (134 Ill. 2d R. 615(bX4)), we reduce defendant’s sentence for voluntary manslaughter to 15 years, the maximum term available for a Class 1 felony (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—l(aX4)), to run concurrently with defendant’s sentence for armed robbery.

Judgment affirmed in part; modified in part.

RIZZI and CERDA, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LaPORTA

license: Public Domain

text:
    RALPH W. LAVAT, Plaintiff-Appellant, v. FRUIN COLNON CORPORATION et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—91—1570
    Opinion filed July 31, 1992.

      Leonard M. Ring & Associates, P.C., of Chicago (Leonard M. Ring and Margaret A. McGuire, of counsel), for appellant.
    John B. Lashbrook and Diane Karp, both of Conklin & Roadhouse, of Chicago, for appellees.
   JUSTICE LaPORTA

delivered the opinion of the court:

Plaintiff Ralph W. Lavat appeals the dismissal by summary judgment of his two-count complaint for libel and retaliatory discharge filed against defendants Fruin Colnon Corp., McCartin-McAuliffe Mechanical Contractor, Inc., Kelso Burnett Co. and Power Systems, Inc., doing business as Baldwin Associates, a partnership (Baldwin).

Baldwin contends that Lavat was fired from its nuclear power plant construction project for lying on his resume with regard to the education he received from American University in Washington D.C. and the Cleveland Institute of Electronics. Lavat contends that his resume is truthful in all material aspects and that he was libeled by Baldwin when Baldwin informed the Bureau of Employment Security, Division of Unemployment Insurance (Unemployment Division), that Lavat was fired for “falsification of employment records.” Lavat sought damages for retaliatory discharge contending that he was fired because he went to the Nuclear Regulatory Commission (NRC) with concerns about being pressured to “sign off” on safety documentation.

On appeal the plaintiff raises as issues: whether, under the innocent construction rule, the statement “falsification of employment records” may be innocently construed when that statement is given as the reason for discharge and the employee is ineligible for rehire, and whether a genuine issue of material fact exists with respect to the motive of the employer when it fired the plaintiff.

The majority of the facts of this case are not in dispute.

On May 13, 1986, Ralph Lavat filed an amended complaint at law against Baldwin alleging one count of libel and one count of retaliatory discharge. The complaint contended Lavat was hired July 5, 1983, as a quality assurance document review engineer and that he was promoted from time to time for faithfully performing his duties. The complaint alleged that in April 1984 Lavat reported to the NRC violations by Baldwin of NRC codes, standards and regulatory requirements. Plaintiff alleged that “[s]ometime thereafter BALDWIN learned that the NRC found it in violation of certain document control procedures and that the plaintiff was the source of the report to the NRC. On August 27, 1984, the plaintiffs employment was terminated by BALDWIN.”

Plaintiff alleged that as a pretext for his firing Baldwin claimed plaintiff had falsified his employment application when in fact the “application was true in every material respect.” Plaintiff alleged that he was libeled when, in September of 1984, Baldwin composed and caused to be published to the Unemployment Division a statement that plaintiff had been fired for “falsification of employment records.”

Plaintiff alleged that the statement was libelous because it was false in fact and malicious in intent and published by Baldwin with knowledge of its falsity. Plaintiff also alleged, “on information and belief, BALDWIN, published said statement to prospective employers with knowledge of falsity or a reckless disregard of its truth of [sic] falsity.”

Plaintiff alleged that he suffered damage to his reputation and good name and was brought into public disgrace and scandal. He alleged he was prevented from gaining other employment, or employment at a comparable salary and has been “ostracized in the industry.”

In the retaliatory discharge count, plaintiff alleged he was hired by Baldwin because he possessed the educational qualifications and prior work experience required for the job. Plaintiff alleged that “plaintiff became aware of certain practices by BALDWIN in collusion with the NRC’s licensee, Illinois Power Company, and in violation of the said codes, standards, and regulatory requirements, including numerous requests by his superiors to certify procurement documents which in fact lacked sufficient underlying data to permit certification.” Plaintiff alleged that he reported his findings to the management of Baldwin and informed the NRC of the illegal practices in April of 1984.

Plaintiff alleged that he was fired in August of 1984 despite the fact that three other document reviewers “whose work was of the same quality as plaintiff and whose educational level was the same or less than that of plaintiff” were allowed to resign.

Plaintiff alleged that the reason given for his firing, “falsification of employment records,” was pretextual and in retaliation for his reporting Baldwin to the NRC and his refusal to certify inappropriate procurement documents. Plaintiff further alleged that his firing was in violation of public policy.

Baldwin filed an answer and then an amended answer with four affirmative defenses. In response to the libel count, Baldwin admitted that it hired plaintiff as a document reviewer, that he performed his job satisfactorily and was promoted on one occasion. Baldwin admitted that it was informed in April of 1984 of plaintiff’s contact with the NRC and that plaintiff was discharged in August for falsification of employment records. Baldwin admitted that in September 1984 it communicated to the Unemployment Division that plaintiff had been discharged for falsification of employment records.

Baldwin alleged three affirmative defenses to the libel count: (1) the statement “falsification of employment records” was true; (2) the communication by Baldwin to the Unemployment Division was absolutely privileged pursuant to section 1900 of the Unemployment Insur-anee Act (Ill. Rev. Stat. 1989, ch. 48, par. 640); and (3) the communication was conditionally privileged under common law.

In response to the retaliatory discharge count, Baldwin admitted that it certified plaintiff for certain positions prior to a completion of all background checks and that three employees who had not been properly certified did resign from Baldwin. Defendant admitted that plaintiff was fired for falsification of employment records. As an affirmative defense, Baldwin contended that it is against public policy to permit an unqualified individual from bringing a wrongful discharge action as a result of his discharge from a certified position as a quality assurance employee at a nuclear facility.

In May of 1990, defendant moved for summary judgment, contending that Lavat was fired because he lied on his resume and not in retaliation for anything Lavat had done. Baldwin contended that Lavat was not libeled because the statement to the Unemployment Division was both privileged and true.

Baldwin also pointed out that Lavat previously had filed a libel action against Baldwin in another county and in that action admitted that his resume was false. Lavat voluntarily dismissed that action on August 9, 1985, and then filed his first complaint in Cook County, which was subsequently amended.

Baldwin contended that it fired Lavat for valid, nonpretextual and nonretaliatory reasons. Baldwin attached to its motion the affidavits of three people, two who were Lavat’s superiors and involved in his firing and the third, a woman conducting the educational audit.

Larry W. Osborne, Baldwin’s manager for quality and technical services at the Clinton Power Station, swore by affidavit that he was responsible for all quality assurance and quality engineering activities. He was the liaison between Illinois Power and the NRC with regard to inspections and reports. He stated that he was responsible for assuring that people under his charge were free from intimidation and would suffer no retaliation for raising safety concerns with the NRC.

He stated that Baldwin policy provided three avenues for quality assurance inspectors to voice their concerns over potential safety problems: (1) Baldwin supervisors and management; (2) Illinois Power’s “Safe Team,” a confidential hotline; and (3) unrestricted access to the NRC, including an on-site office.

He stated that no employee, including Lavat, was ever fired in violation of the Energy Reorganization Act of 1974 (the ERA) (42 U.S.C. §5851(a) (1988)). The ERA forbids an employer from discharging an employee or otherwise discriminating against the employee because the employee pursued a complaint either through the ERA or the Atomic Energy Act of 1954, both governing nuclear power plant construction and operations.

Osborne stated that Lavat initially was assigned to the document review group of quality assurance as a document reviewer and later to quality engineering as a quality engineer. Osborne stated that in April 1984 he heard that Lavat received a threatening phone call at home and he released Lavat’s unlisted phone number and address to the NRC at the NRC’s request. He stated that no adverse action was taken against Lavat and the NRC requested no further information concerning Lavat. He stated that the NRC never sanctioned Baldwin for conduct brought to the NRC’s attention by Lavat.

Osborne stated that Baldwin hired its document reviewers and quality engineers in compliance with NRC regulations and the standards required by Illinois Power and Baldwin Associates. He detailed the educational requirements for someone in Lavat’s position.

Osborne stated that to comply with NRC requirements, Baldwin undertook a 100% audit of its quality assurance inspection employees to verify their educational and experimental requirements. He stated that the audit resulted in the identification of three other individuals who had misstated their educational level, though they each possessed the minimum required educational background for “certification.”

He stated that in August 1984 he learned that Lavat did not possess the degrees listed on his resume and therefore could not properly be certified as either a document reviewer or a quality engineer. Osborne stated that Craig Anderson, Lavat’s immediate supervisor, advised him Lavat was persisting in his claim that he had the degrees listed on his resume and that, upon Anderson’s recommendation, he directed Anderson to fire Lavat for falsification of his employment records.

Attached to Osborne’s affidavit were internal documents to Craig Anderson dated August 9, 24 and 31, 1984. The August 31 memorandum was written by Craig Anderson himself as documentation for the files. The letters detailed Baldwin’s attempts to verify Lavat’s education and Anderson’s impression of Lavat’s initial response.

Baldwin’s motion for summary judgment also included the affidavit of Craig Anderson, who stated that at the time of Lavat’s employment he was either Baldwin’s manager of quality assurance or manager of quality engineering.

Anderson detailed the applicable American National Standard Institute (ANSI) standards of education required for a person employed in Lavat’s position. He stated that the actions taken by Baldwin regarding Lavat “were taken solely to comply with Baldwin quality control and assurance procedures, ANSI standards and federal regulations.”

Anderson stated that the only reason Baldwin undertook a 100% audit of the education and references of Lavat and other document reviewers and quality engineers was to “comply with previous commitments to the NRC regarding verification of employees’ references and educational qualifications.”

Anderson stated that at the time the audit began he had no knowledge that Lavat had contacted the NRC or expressed concern about the integrity of Baldwin’s quality assurance program. Anderson explained that Pamela Jo Dahl, a quality assurance training coordinator, contacted him on or about August 9, 1984, to say she was unable to verify Lavat’s college degree or any high school equivalency. He stated that he directed her to pursue verification and that he received a second memorandum from her on August 24, 1984, which detailed her findings.

He stated that he reviewed her two memos and concluded that Lavat neither completed high school nor had the degrees as stated on his resume. American University informed Baldwin Associates that Lavat did not earn a degree from that school but instead he had taken 14 courses over a period of three months. Anderson stated that he believed an associate degree consisted of two years of study with approximately 24 to 28, three-credit-hour courses. Cleveland Institute of Electronics confirmed that it did not award degrees until 1979 and that the only degrees it awarded were associate degrees. Anderson stated that this made Lavat unqualified to be certified as a document reviewer or a quality engineer.

Anderson stated that when he confronted Lavat with this information Lavat admitted that he had not graduated from high school. Lavat told him that his former employer could verify his electrical engineering (EE) degree from Cleveland Institute of Electronics. Anderson stated that Lavat told him his attendance at American University was the equivalent of an “Associate Degree Bachelor Science and Social Sciences.” Anderson stated that Lavat insisted that his resume was truthful and never contended that anyone at Baldwin told him to falsify his resume.

Anderson stated that Lavat’s previous employer, Daniels International, could not confirm Lavat’s electrical engineering degree and Lavat was told August 27, 1984, that he was being fired for falsifying employment records. Lavat then produced proof of a GED certification he obtained nine days before on August 18, 1984; however, Anderson said he told Lavat that the offer was pointless at such a late date because Lavat had misled Baldwin concerning his resume.

Anderson stated that Lavat was fired for this reason and no other. He also stated that he was not aware of any adverse finding against Baldwin as a result of any condition, incident or discrepancy reported to the NRC by Lavat.

Pamela Jo Dahl swore by affidavit that she was hired by Baldwin to verify the certification of all quality assurance personnel. She stated that at the time she undertook the audit of employees she had no knowledge of Lavat’s complaint to the NRC. She stated that she could not verify any college degrees or high school graduation or equivalency for Lavat and therefore determined that Lavat was not properly certifiable as either a document reviewer or quality engineer.

She stated that Cleveland Institute told her it had never issued an electrical engineering degree. She stated that Lavat’s previous employer, Daniels International, informed him it “also had questioned Mr. Lavat’s EE degree.” She stated that Lavat persisted in his contention that his resume was accurate in all respects.

In Lavat’s deposition he acknowledged that he had two years of high school and six months at American University, where he thought he received an associate degree. He stated that he had to take a GED examination to get into the American University program; however, all his documentation and proof of his prior education was lost in a hurricane.

He stated that when he was interviewed by a Baldwin employee, the employee urged him to move his Cleveland Institute training from the bottom of his resume to the top to emphasize his electrical training. He stated that before he was fired he was called in and told that he did not have the education to be certified. He stated that he believed he was not fired for his lack of education.

Lavat stated that he called the NRC in April after he received a threatening call at home on a Sunday. He stated that his former girlfriend, who worked on the Clinton construction project, also received threats. He acknowledged that he had emotional trouble during that time and was absent from work on the Monday and Tuesday after the threat. He stated that he suffered two heart attacks brought on by the pressure he experienced at work. He stated that he didn’t know who was behind the threats and that after he had some trouble with a subordinate, he demanded to be moved to another area of quality control.

As to the libel action, plaintiff acknowledged that he did not have the document to support the libel claim but contended that the oral statement or written statement to the Illinois Unemployment Division would be obtained through depositions and subpoenas to the Unemployment Division. Plaintiff stated that he had been told by others, such as “people around town,” that he was blackballed in the nuclear industry.

On April 2, 1991, the trial court heard arguments on the summary judgment motion. The court found several of Baldwin’s assertions un-controverted: that plaintiff’s employment application was inaccurate; that Baldwin learned of plaintiff’s inaccurate resume from a department-wide verification of several hundred employees’ employment and educational information; that three other employees admitted they had lied on their resumes and were given a choice of either being fired or resigning; and that plaintiff misstated his background but was not given a chance to resign. The court found uncontroverted plaintiff’s assertions that he made a complaint to the NRC, that he was fired four months after he made his complaint to the NRC and that he was not given the option of resigning.

As to the libel count, the court found that the phrase “falsification of employment records” could be innocently construed under the innocent construction rule and therefore was not libel per se. The court rejected Baldwin’s contention that the communication was privileged saying: “[t]here is absolutely no information contained in the eviden-tiary material submitted to this court as to why this information was submitted *** therefore, movant has failed to sustain its burden of establishing that the statement was made in connection with the requirements of the act or the regulations thereunder. *** In this case, there is nothing before this case relating to the facts surrounding the making of the statement to the [Unemployment Division]; that is, *** facts as to why it was made, to whom it was made, or under what circumstances it was made. The same is true of the alleged statements to perspective [sic] employers. We do not know to whom the statement was made, why it was made, under what circumstances it was made, or even if it was made.”

As to the retaliatory discharge claim, the trial court found, in judging the evidence in the light most favorable to the plaintiff, that Baldwin knew of plaintiff’s complaint to the NRC at the time it fired plaintiff but that plaintiff was fired after Baldwin conducted a 100% audit of the educational and employment experience of its entire quality assurance department. The court found Baldwin had put forth a legitimate, nonretaliatory and nonpretextual reason for plaintiff’s termination and that therefore the burden shifted to plaintiff to come forward with evidentiary material which would show a genuine issue of fact existed as to defendant’s motivation. The court found: “[t]he plaintiff has failed to do so, and his inference is not a rational one, based upon the evidence that he draws it from. He seems to be arguing that because he made a complaint to the NRC, and because he was thereafter fired, he concludes that he was fired because he made a complaint to the NRC.” The trial court found that plaintiff failed to put forth any evidence to connect the firing with the NRC inquiry and therefore found the defendant was entitled to judgment as a matter of law on the retaliatory discharge count.

The trial judge then granted the summary judgment in defendant’s favor as to count II, the retaliatory discharge count, and count III, a count seeking punitive damages. The court granted partial summary judgment in defendant’s favor as to count I, stating “that plaintiff does not have an action for libel per se by virtue of the innocent construction rule but denies the motion for summary judgment on count 1 because there are material disputes of fact under libel per quod.”

On April 12, 1991, defendant moved the court to dismiss the remainder of count I by summary judgment. On April 15, 1991, plaintiff filed a motion seeking leave to file an amended complaint at law instanter. Plaintiff’s motion was granted and that same day the trial court granted defendant’s motion to dismiss plaintiff’s second amended complaint by summary judgment and ordered this cause dismissed. Plaintiff appealed.

The standard for granting summary judgment and the standard of review on such judgments is concisely described in Thompson v. Platt (1983), 116 Ill. App. 3d 662, 664, 452 N.E.2d 733, where the court stated:

“Summary judgment is a harsh remedy which is to be avoided in favor of granting the parties an opportunity to present their evidence at trial unless all of the pleadings, depositions, admissions, [and] affidavits, and all permissible inferences, analyzed in the light most favorable to the non-movant, so clearly favor the movant that no fair-minded person could dispute the movant’s right to judgment in his favor. On appeal, this court will affirm the trial court’s decision to grant summary judgment only if, after scrutinizing the record, we are absolutely convinced there is no genuine issue as to any material fact and that the movant was, indeed, entitled to judgment as a matter of law.” Thompson, 116 Ill. App. 3d at 664.

At the pleading stage, plaintiff need only provide some factual basis which would arguably entitle him to judgment to defeat a summary judgment motion. (Williams v. Alfred N. Koplin & Co. (1983), 114 Ill. App. 3d 482, 487, 448 N.E.2d 1042.) But as a general rule, summary judgment is to be encouraged as an aid to the expeditious disposition of a lawsuit. Reed v. Bascon (1988), 124 Ill. 2d 386, 393, 530 N.E.2d 417.

The sole function of the court reviewing the trial court’s entry of summary judgment is to determine whether the lower court correctly ruled that no genuine issue of material fact had been raised, and if none was raised, whether judgment was correctly entered as a matter of law. Fuller v. Justice (1983), 117 Ill. App. 3d 933, 938, 453 N.E.2d 1133.

If a genuine issue of material fact exists, a motion for summary judgment may not be granted. (Fuller, 117 Ill. App. 3d at 938; see also Joiner v. Benton Community Bank (1980), 82 Ill. 2d 40, 44, 411 N.E.2d 229; Estate of Kern v. Handelsman (1983), 115 Ill. App. 3d 789, 793, 450 N.E.2d 1286 (summary judgment reversed where court found that facts were not free and clear of uncertainties).) But plaintiff cannot rest on general denials unsupported by any evidentiary facts. Such denials are insufficient to raise a triable issue as against uncontroverted evidentiary matter. Purdy Co. v. Transportation Insurance Co. (1991), 209 Ill. App. 3d 519, 529, 568 N.E.2d 318.

First, we address the trial court’s dismissal of plaintiff’s libel action. The trial judge applied Illinois’ innocent construction rule to find that plaintiff’s libel action could not stand, relying in part on definitions in Washer v. Bank of America National Trust & Savings Association (1943), 21 Cal. 2d 822, 136 P.2d 297. Without addressing the innocent construction rule, we find that the libel action had to be dismissed because Baldwin’s communication to the Unemployment Division was privileged.

Section 1900 of the Unemployment Insurance Act states, in pertinent part: “All *** communications *** to the Director *** made in connection with the requirements and administration of this Act *** shall be absolutely privileged and shall not be made the subject matter or basis for any suit for slander or libel in any court of this State, unless the same be false in fact and malicious in intent.” Ill. Rev. Stat. 1983, ch. 48, par. 640.

The trial court rejected Baldwin’s contention that the communication was privileged and found “absolutely no information contained in the evidentiary material submitted to this court as to why this information was submitted” to the Unemployment Division. The court found Baldwin failed to sustain its “burden of establishing that the statement was made in connection with the requirements of the act or the regulations thereunder.”

We find, however, that the record contains information which supports Baldwin’s contention that it forwarded its communication to the Unemployment Division. Lavat concedes this fact in his deposition attached to plaintiff’s memorandum in opposition to defendant’s motion for summary judgment. Lavat was asked: “Sometime in September 1984 Baldwin Associates advised the Department of Unemployment Insurance Division of the Illinois Department of Labor that you had been discharged for ‘falsification of employment records,’ is that right?” Lavat responded: “Yes, sir.” He was then asked: “That’s the basis for your libel action against Baldwin Associates?” And again he responded, “Yes, sir.”

Considering the plain language of the statute, information provided by the employer is absolutely privileged unless it is false in fact and malicious in intent. (Harrison v. Sears, Roebuck & Co. (1989), 189 Ill. App. 3d 980, 995, 546 N.E.2d 248.) We find plaintiff has not met this burden.

Plaintiff has not established that the communication was false. Both sides acknowledge that the communication to the Unemployment Division occurred and that a privilege attached unless the communication was false and made with malicious intent. Plaintiff acknowledged on appeal that the information on his resume was false. But he contended that his former employer’s statement, “falsification of employment records,” was not a truthful statement because of plaintiff’s subjective belief at the time that he completed the employment records. However, we find plaintiff’s subjective belief does not make a false statement true, nor does it become less than false.

Nor has plaintiff established that the communication was made with malicious intent. Actual malice may be found where the person making the communication had reason to believe it was false and failed to investigate further. (Harrison, 189 Ill. App. 3d at 995.) Plaintiff does not deny that defendant conducted a thorough investigation into plaintiff’s educational background after discovering a problem with his resume. Defendant believed that plaintiff had falsified his employment records at the time it made the communication. Defendant still believes that plaintiff’s resume was false and on appeal plaintiff has admitted that the resume is inaccurate.

Plaintiff has established neither falsity nor malice on the part of defendant with regard to the communication to the Unemployment Division.

We find the trial court correctly ruled that nothing in the record supported plaintiff’s allegations that Baldwin published this information to prospective employers.

We therefore affirm the trial court’s dismissal of plaintiff’s action, in part for reasons other than those given by the trial judge. A trial court order may be sustained on appeal for reasons other than those relied upon by the trial judge if the conclusion is correct, irrespective of the court’s reasoning. Village of Schaumburg v. Franberg (1981), 99 Ill. App. 3d 1, 424 N.E.2d 1239.

Next we consider the retaliatory discharge count and whether a genuine issue of material fact exists with respect to the motive of the employer when it fired the plaintiff. To state a cause of action for retaliatory discharge, plaintiff must allege that he was discharged in retaliation for his activities, and that the discharge was in contravention of a clearly mandated public policy. (Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill. 2d 502, 505, 485 N.E.2d 372.) The Wheeler court stated that the protection of the lives and property of citizens from the hazards of radioactive material is as important and fundamental as protecting them from crimes of violence and that by enacting legislation Congress effectively declared a clearly mandated public policy to that effect. Wheeler, 108 Ill. 2d at 511.

Retaliatory discharge is reviewed under a traditional tort analysis, and so to defend against such a charge, an employer must establish that plaintiff was guilty of conduct justifying his discharge. (Netzel v. United Parcel Service, Inc. (1989), 181 Ill. App. 3d 808, 812, 537 N.E.2d 1348.) Retaliatory discharge is a proper subject for summary judgment. La Porte v. Jostens, Inc. (1991), 213 Ill. App. 3d 1089, 572 N.E.2d 1209.

Baldwin maintains that it fired plaintiff because plaintiff’s educational background did not permit him to be certified as a nuclear plant quality assurance employee under NRC regulations and that plaintiff persisted in his contention that his resume was accurate. Both parties agree that Baldwin made a commitment to the NRC in 1982 to verify the education and experience of all its quality assurance employees. Baldwin contends that it discovered plaintiff’s lack of education in 1984 when it undertook the promised audit of quality assurance employees.

The trial court found Baldwin had put forth a legitimate, nonreta-liatory and nonpretextual reason for plaintiff’s termination and that therefore the burden shifted to plaintiff to come forward with eviden-tiary material that would show a genuine issue of fact existed as to defendant’s motivation. The trial court found plaintiff “failed to do so, and his inference is not a rational one, based upon the evidence that he draws it from. He seems to be arguing that because he made a complaint to the NRC, and because he was thereafter fired, he concludes that he was fired because he made a complaint to the NRC.”

Plaintiff contends that the record is replete with evidence from which it can reasonably be inferred that plaintiff was terminated because of his complaint to the NRC. Plaintiff points to the affidavits and depositions of former Baldwin employees who stated that the 100% audit was promised in 1982 with a targeted completion date of February 1983 and yet was not started until after plaintiff filed his complaint with the NRC. Plaintiff contends that the employee affidavits in support of the motion for summary judgment conflict with the documents in the record as to whether the audit began in April or May of 1984.

Lavat argues that three other employees with inaccurate resumes were permitted to resign and he was not. Baldwin responds by stating that the three other employees admitted that they lied whereas Lavat insisted that he was telling the truth.

Lavat argues that further proof that his firing was pretextual comes from Baldwin’s personnel manual which states that a person not eligible for hire because he has no high school education or GED can be reconsidered for employment if he or she submits proof of successful completion of this educational requirement. Lavat submitted proof of his GED certification in August 1984 but he was fired nine days later.

Plaintiff cites Kansas Gas & Electric Co. v. Brock (10th Cir. 1985), 780 F.2d 1505, where a quality assurance employee was fired when he was not able to provide proof of his educational background within 48 hours. The employee also had filed several reports with his superior detailing potential quality assurance problems. The Tenth Circuit found disparate treatment between the way the plaintiff was treated because the defendant did not fire other employees who failed to verify their backgrounds. Lavat argues that here other employees who admitted they lied were allowed to resign and Lavat, who insisted his resume was truthful, was fired despite the fact that he had proof of a GED completion. Lavat argues further that a material fact exists as to when Larry Osborne learned about his complaint to the NRC.

Lavat also argues that in cases where the plaintiff contends he was fired for filing a Workers’ Compensation Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.) claim, the courts have noted that a prima facie case of retaliatory discharge can be shown by showing a short time span between the exercise of the employee’s rights under the Workers’ Compensation Act and the employee’s discharge. Hugo v. Tomaszewski (1987), 155 Ill. App. 3d 906, 910, 508 N.E.2d 1139; see also Netzel, 181 Ill. App. 3d 808, 537 N.E.2d 1348.

Baldwin contends that Hugo is factually distinguishable because in that case the employee was discharged immediately upon the employee’s return from medical leave following his work place accident prompting his worker’s compensation claim. Here, Lavat was fired four months after his contact with the NRC.

Baldwin contends that its reason for firing Lavat was not pretextual and was not in retaliation for plaintiff’s complaint to the NRC. Baldwin argues that in order to believe Lavat’s contentions this court would have to believe that when Baldwin managers learned of Lavat’s call to the NRC they “were so upset they devised a scheme to retaliate against him” by auditing approximately 250 quality assurance department employees. But Lavat’s contention fails to consider how Baldwin management would know that it would find errors on Lavat’s employment application and why it took so long to fire Lavat.

Baldwin notes that it had a stated policy of protecting its employees who took safety concerns to the NRC. Baldwin argues that if it simply wanted to fire Lavat it could have done so when it laid off other workers in June for reasons unrelated to this appeal. Instead, Lavat was transferred to another quality assurance job.

Baldwin contends that it permitted three other employees to resign because they admitted that they had lied. Lavat was fired because he insisted that his resume was accurate, thus continuing to lie even when faced with documentary proof of the false records. Baldwin argues that falsification of employment records is proper grounds for dismissal. Roundtree v. Board of Review (1972), 4 Ill. App. 3d 695, 696, 281 N.E.2d 360.

We agree with the trial court’s finding that, judging the evidence in the light most favorable to the plaintiff, Lavat’s firing was not pre-textual and was not in retaliation for his contacting the NRC. We affirm the trial court finding that no genuine issue of material fact exists and the court’s order dismissing plaintiff’s complaint on Baldwin’s motion for summary judgment.

Affirmed.

McNAMARA and RAKOWSKI, JJ., concur.

       Justice LaPorta authored this opinion before her death.


author: PRESIDING JUSTICE McNULTY

text:
    RICKY BALSLEY, Plaintiff-Appellant, v. RAYMOND CORPORATION, Defendant-Appellee.
    First District (5th Division)
    No. 1—90—2775
    Opinion filed July 24, 1992.
    Rehearing denied August 26, 1992. — Modified opinion filed September 25,1992.
    Anesi, Ozmon & Rodin, Ltd., of Chicago (Stephen S. Phalen, of counsel), for appellant.

      Wildman, Harrold, Allen & Dixon, of Chicago (Brian W. Bell, Ruth E. VanDemark, and Aaron T. Shepley, of counsel), for appellee.
   PRESIDING JUSTICE McNULTY

delivered the opinion of the court:

Following a July 1980 accident in which his hand was crushed by the falling of a 60-pound protective battery cover on a Raymond Model 75 sideloader (a machine similar to a forklift), plaintiff Ricky Balsley filed a product liability action against the machine’s manufacturer, the Raymond Corporation. A jury returned a verdict for the corporation and plaintiff now appeals this finding.

Plaintiff first contends that defendant’s expert was improperly allowed to testify regarding an alleged lack of other accidents involving the battery box lid on the Model 75 sideloader. Plaintiff alleges that this testimony was improper because the subject matter of defendant’s expert’s opinion was not disclosed prior to trial in accordance with Supreme Court Rule 220(d) (107 Ill. 2d R. 220(d)), which requires the disclosure of the subject matters of an expert’s testimony. (See Stringham v. United Parcel Service, Inc. (1989), 181 Ill. App. 3d 312, 536 N.E.2d 1292.) We do not address the substance of this argument, as such objection, which was made in the motion in limine, was not preserved in the post-trial motion and has been effectively waived for purposes of appeal. Although plaintiff argues that his second memorandum in support of his post-trial motion, which incorporates by reference the motion in limine, is sufficient to preserve the Rule 220 objection, such is not the case. Illinois case law requires specificity in post-trial motions in order to accomplish the following: to allow the trial judge to review his own decisions; to allow the reviewing court to determine whether the trial court has had an adequate opportunity to reassess the allegedly erroneous rulings; and to prevent litigants from stating general objections and then raising issues on appeal that the trial judge was never given an opportunity to consider. (Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 415 N.E.2d 337.) In Brown, the Illinois Supreme Court held that plaintiff’s post-trial motion was not sufficiently specific to preserve allegations of error in jury instructions when it merely listed the objectional instructions without apprising the court of the points and arguments relied upon. Similarly, in the case at bar, plaintiff’s memorandum supporting his post-trial motion refers to the motion in limine but does not discuss the arguments and points contained therein. Thus, although the motion in limine does raise the Rule 220 argument, it also raises the lack of foundation argument, and based upon Brown, a general reference to the motion would not be sufficient to apprise the trial judge of the arguments relied upon and therefore would not serve to preserve such arguments for review.

Plaintiff next maintains that defendant’s expert’s testimony regarding lack of prior accidents was improper as a sufficient foundation for such testimony was never laid. Existing case law firmly establishes the fact that evidence of an absence of prior accidents or incidents is admissible when the party offering the evidence establishes as foundation that the absence of other accidents occurred when the same product was used and that the product was used under conditions substantially similar to those in which the plaintiff used the product. Schaffner v. Chicago & North Western Transportation Co. (1989), 129 Ill. 2d 1, 541 N.E.2d 643; Salvi v. Montgomery Ward & Co. (1986), 140 Ill. App. 3d 896, 489 N.E.2d 394; Leischner v. Deere & Co. (1984), 127 Ill. App. 3d 175, 468 N.E.2d 182.

In Salvi, which involved a plaintiff’s claim that a cross bolt safety on an air gun manufactured by the defendant was defective, the appellate court affirmed the trial court’s determination that the defendants had provided a sufficient foundation regarding admission of evidence of lack of prior accidents. In evaluating the necessary foundational requirements and in reaching its conclusion that the 459,000 air guns with the cross bolt safety were used under substantially similar circumstances, the court noted that because the subject mechanism was a part of the gun itself, each and every owner of the gun necessarily used the cross bolt safety in a similar manner while operating the gun. Thus, it was appropriate for defendant to admit evidence of absence of prior accidents. Similarly in Leischner, which involved the safety of 64,000 snowmobiles, the appellate court found that the evidence established that a substantial number of the snowmobiles were used on similar terrains at similar speeds in a similar manner, and that, therefore, a proper foundation for lack of prior accident testimony had been established. However, a contrary conclusion as to the propriety of foundational requirements for lack of prior accident testimony was reached by the appellate court in Connelly v. General Motors Corp. (1989), 184 Ill. App. 3d 378, 540 N.E.2d 370. In this case, which involved allegedly defective automobile tires, the appellate court affirmed the trial court’s refusal to admit evidence of the alleged lack of prior accidents as defendant failed to produce any evidence that the absence of these complaints occurred when others were using the tires under conditions substantially similar to those in which they were used by the plaintiff. (Among the variables which diminished substantial similarity in the use of the tires were: (1) weight of the load on the tires; (2) number of miles the tires had been used; (3) speed of the vehicle at the time of the accident; (4) terrain on which the vehicle was being used; and (5) the amount of air in the tires.) See also Walker v. Trico Manufacturing Co. (7th Cir. 1973), 487 F.2d 595 (which held in construing Illinois law that although the sufficiency of foundation evidence varies and must be determined from case to case, without evidence of similarity of the location of the limit switch in other machines (a safety device in the machine at issue), and without evidence as to the frequency of conditions of use of such other machines, Trico should not have been permitted to introduce its evidence of absence of prior accidents).

In the case at bar, prior to giving his testimony that plaintiffs accident was the only one of its kind involving the machine at issue, defendant’s expert established that each Model 75 sideloader is equipped with an identical battery compartment cover; each side-loader must be electrically recharged after eight hours of use; and each sideloader is recharged by opening and closing the battery compartment cover in exactly the same manner. If the facts ended here, we could analogize the foundational requirements to those in Salvi (involving the safety of air guns with built-in mechanism), Leischner (the safety of identical snowmobiles) or Schaffner (the safety of Schwinn bicycles with quick release mechanisms but without positive retention devices). Unlike the products in the aforementioned cases, which contained no variables and were thus used in substantially the same manner, the Model 75 sideloader (whose battery lid had been designed to stay open without propping) nevertheless required an adaptation to be made by each user during the battery recharging process. Because recharging had to be accomplished with the battery lid open, and because the lid would not stay open on its own accord, the user had to prop it open. Defendant’s expert presented no evidence to establish that all battery lids in all Raymond Model 75 sideloaders were propped open the same way. Plaintiff in the instant action propped the battery lid open with a two-by-four. Defendant’s expert testified that in the course of his inspection of 100 sideloaders, he had observed one sideloader which had incorporated a safety latch to keep the open lid in place. He further testified that, if modifications were made to the battery lids, users were required by OSHA (Occupational Safety and Health Administration) to get prior approval from the Raymond Corporation and to date the Raymond Corporation had not had notice of any such modifications. Nevertheless, this information still does not account for how the battery lids of the remainder of Model 75 sideloaders were kept open during the recharging process. Although the sideloader battery recharging process has only one variable (unlike the many variables in the tires involved in Connelly), we nevertheless find that the presence of this factor casts doubt upon the conclusion that the machines were used in a substantially similar manner. Therefore, the foundational requirements for the introduction of the lack of other accidents were not met. We acknowledge that a trial court’s decision to admit or refuse evidence is a matter of discretion and its decision should be reversed on appeal only if the court abused its discretion. (Connelly, 184 Ill. App. 3d 378, 540 N.E.2d 370.) We nevertheless find that because of the variable involved in the propping of the battery lids, defendant’s expert did not establish that similar equipment was used in a substantially similar manner and, therefore, did not lay a proper foundation for the introduction of his testimony regarding the lack of other accidents. Accordingly, such testimony was improperly admitted.

As further grounds for trial error, plaintiff maintains that the defense attorney improperly referred to the movements of plaintiff’s hands in an effort to introduce evidence of plaintiff’s fault into a product liability lawsuit. Defendant argues that his remarks in this regard were relevant to the issues of whether there was a defect and proximate cause. Alternatively, he postulates that plaintiff’s objections were “too little, too late,” or that any prejudice to plaintiff was cured by subsequent jury instructions. We disagree. Defendant’s continued references during cross-examination to the placement and movement of plaintiff’s hands went well beyond what was necessary to establish either a lack of defect or lack of proximate cause. Finally, after objection, the court instructed the defense attorney as follows: “You can certainly describe to the jury how it happened without asking him did he attempt to support. That does suggest that maybe he did something improper ***. I’m going to ask you to rephrase the question.” These remarks did not deter defense counsel from again referring to plaintiff’s conduct in his closing argument in which he stated: “You will recall Mr. Balsley on the witness stand talking about what he was doing. The movement of his hand, the human factor, was essentially rearward and laterally. Rearward and laterally.” After objection, the court declared, “Movement is not an issue. However the plaintiff moved is not an issue in this case.”

We find that defendant’s improper and repeated referrals to plaintiff’s conduct were adequately preserved by plaintiff’s timely objections. The continuing nature of these remarks is particularly egregious considering defendant’s futile attempt to introduce the affirmative defense of assumption of the risk. Under the circumstances, we cannot say that such innuendos of plaintiff’s negligence were adequately cured by jury instruction. For the above-mentioned reasons we reverse and remand for a new trial.

Reversed and remanded.

MURRAY and GORDON, JJ., concur.

       Although misuse, assumption of the risk, and comparative negligence are affirmative defenses which may be raised in a product liability lawsuit in Illinois (Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 454 N.E.2d 197), the trial court had already denied defendant’s motion for leave to file an affirmative defense regarding assumption of the risk, and no motion regarding misuse or comparative negligence was ever made.