author: JUSTICE O’CONNOR

text:
    THE PEOPLE ex rel. NEIL F. HARTIGAN, Attorney General, et al., Petitioners-Appellants, v. ILLINOIS COMMERCE COMMISSION et al., Respondents-Appellees.
    First District (1st Division)
    Nos. 1-90-0709, 1-90-0720, 1-90-0848, 1-90-0849, 1-90-1103, 1-90-1104 cons.
    Opinion filed July 15, 1991.

      Neil F. Hartigan, Attorney General, of Springfield (Robert W. Cushing and G. Darryl Reed, Assistant Attorneys General, of Chicago, of counsel), for petitioner People of the State of Illinois ex rel. Hartigan.
    Cecil A. Partee, State’s Attorney, of Chicago (Thomas H. Rowland and Robert K. Lock, Assistant State’s Attorneys, of counsel, for petitioner People of Cook County ex rel. Partee.
    Office of Public Counsel, of Chicago (Stephen J. Moore, of counsel), for petitioner Office of Public Counsel.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Jean Dobrcr, Assistant Corporation Counsel, of counsel), for petitioner City of Chicago.
    Jenner & Block, of Chicago (Robert L. Graham, Norman M. Hirsch, and Jose E. Rivera, of counsel), for petitioner Citizens Utility Board.
    Legal Assistance Foundation of Chicago, of Chicago (Allen W. Cherry and Susan Wallitsch, of counsel), for petitioners Community Action for Fair Utility Practice, National Peoples’ Action, and South Austin Coalition Community Council.
    Neil F. Hartigan, Attorney General, of Springfield (James E. Weging, Special Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Commerce Commission.
    Sidley & Austin, of Chicago (Howard J. Trienens, Michael I. Miller, David F Graham, and Gerard D. Kelly, of counsel), for respondent Commonwealth Edison Company.
   JUSTICE O’CONNOR

delivered the opinion of the court:

In this appeal, we consider whether the Illinois Commerce Commission (Commission) properly determined the amount of refund due consumers of electricity service provided by Commonwealth Edison Company (Edison) in view of our decision in Commonwealth Edison Co. v. Illinois Commerce Comm’n (1989), 180 Ill. App. 3d 899, 536 N.E.2d 899, appeal denied (1989), 126 Ill. 2d 557, 541 N.E.2d 1105.

In Commonwealth Edison, we affirmed an order of the Commission in docket No. 86 — 0128, approving a revised rate schedule which had been originally proposed by Edison in response to consumer dissatisfaction with the disparity between seasonal rate charges for electricity. We also vacated an order granting Edison’s petition for special permission to implement revised rates in docket No. R. 18712. The special permission was allowed subsequent to our grant of a stay, at Edison’s request, of operation of the docket No. 86 — 0128 order, pending Edison’s challenge to that order on appeal. Because the rates authorized by special permission in docket No. R. 18712 were substantially different from those established in docket No. 86 — 0128, consumers were charged more than they would have been charged had the rates under the docket No. 86 — 0128 order not been stayed. See Commonwealth Edison, 180 Ill. App. 3d 907, 536 N.E.2d 899, appeal denied (1989), 126 Ill. 2d 557, 541 N.E.2d 1105.

In the wake of our decision in Commonwealth Edison, the Illinois Attorney General, the Cook County State’s Attorney, and three community groups, National Peoples’ Action, South Austin Coalition Community Council, and Community Action for Fair Utility Practice, filed complaints with the Commission seeking refunds from Edison for overpayments made during the period June 8 through December 31, 1988, when the rates imposed by special permission in docket No. R. 18712 were in effect. The actions were consolidated. The office of public counsel, the Citizens Utility Board, and •the City of Chicago also eventually joined in the proceedings before the Commission.

Following several evidentiary hearings, methodologies for calculating the refund amount were submitted by the parties to the Commission, including a recommendation by the Commission’s staff. The Commission subsequently heard oral argument in October 1989. On February 23, 1990, the Commission entered its order in the matter. Essentially adopting the methodology urged by Edison, the Commission determined the refund amount to be approximately $5.7 million.

In turn, the governmental and consumer groups (together, complainants) initiated this appeal (Ill. Rev. Stat. 1987, ch. lll2/3, par. 10 — 201; 134 Ill. 2d R. 335), contending that the adopted methodology effectively eliminated consideration of the rates which should have applied under the docket No. 86 — 0128 order, resulting in an improperly calculated refund.

For reasons which follow, we agree.

Our disposition in the instant matter depends on an understanding of the chronology of events, including rate proposals and rates actually in effect, before, during, and after the time period for which the rate schedule contained in the docket No. 86 — 0128 order should have been in effect. To that extent, we must repeat some of the facts previously set out in Commonwealth Edison.

Under the established tariff for residential electricity use which would have been in effect through December 31, 1988, had the events in the instant case not taken place, Edison employed a rate schedule which utilized a seasonal rate differential permitting Edison to charge a higher rate per kilowatt hour during a four-month summer period than that charged per kilowatt hour during an eight-month nonsummer period. In 1986, Edison, in response to consumer dissatisfaction regarding the seasonal rate differential, initiated proceedings before the Commission in docket No. 86— 0128, proposing to decrease the rate differential between summer and nonsummer months. Shortly thereafter, Edison successfully sought to terminate those same proceedings in view of a proposed settlement of the matter. However, the Commission eventually denied Edison’s petitions regarding settlement.

Edison subsequently initiated proceedings in docket No. 87— 0427, seeking to implement a new rate schedule containing overall rate increases to become effective January 1, 1989. The issue of the seasonal rate differential under that rate schedule was included in the considerations before the Commission. Proceedings in docket No. 87 — 0427 remained pending throughout much of 1988.

In 1988, the Commission, on its own motion, reopened the record in docket No. 86 — 0128. The Commission’s intention was to draft an order based on the existing record in that docket as well as relevant portions of other prior proceedings related to altering the seasonal rate differential. However, the Commission did consider briefs and exceptions submitted by Edison, the Illinois Attorney General, the Cook County State’s Attorney, the Citizens Utility Board, Community Action for Fair Utility Practice, National Peoples’ Action, and the Commission’s staff, and held hearings on the matter.

The Commission entered its order in docket No. 86 — 0128 on April 27, 1988. Because proceedings in docket No. 87 — 0427 would not be concluded until well after the summer rate schedule, as altered by the docket No. 86 — 0128 order, became effective, the order was specifically intended to effectuate only an interim alteration of the summer rates to be charged during 1988 under the then existing rate schedule. The rate charges were to go into effect with the summer month billing period in June.

The Commission noted that Edison’s original proposal in docket No. 86 — 0128 contained complementary increases in rates over the nonsummer period. Those complementary increases would have the effect of offsetting the decrease in revenues which Edison would otherwise have expected if the summer rates were not lowered. The Commission acknowledged that it intended to likewise maintain the same “revenue neutrality” in its order. However, in the proceedings held pursuant to the reopened docket, Edison had asserted that the order proposed by the Commission in docket No. 86 — 0128 would achieve revenue neutrality only if the restructured rates remained in effect over a 12-month time frame, containing both summer and nonsummer billing periods. However, Roland Kraatz, Edison’s director of rates, had testified that to preserve revenue neutrality, the Commission could take into account the need to recoup any decrease in revenue during the remainder of 1988 in rates set in the docket No. 87 — 0427 proceedings.

Achievement of revenue neutrality was in issue throughout proceedings in the reopened docket. The Commission’s staff had criticized Edison’s claim of achieving revenue neutrality at the time Edison had made its proposal in docket No. 86 — 0128 because Edison had not considered whether consumer use would be affected based on the changed rates. The Attorney General, recognizing the proceedings in docket No. 87 — 0427 would not be completed prior to the start of the 1988 summer rate billing period, had accepted the revenue-neutral treatment for 1988 only, relying on statements in the proposed order in docket No. 86 — 0128 that the parties would not be prejudiced by that rate design.

In its conclusion, the Commission observed that the rates recommended in the docket No. 86 — 0128 order would be revenue neutral on an annual basis only if the rates were implemented on January 1, 1988. Any revenue shortfall, the Commission determined, could be appropriately addressed directly in docket No. 87— 0427 by adjusting for any actual shortfall resulting from the rates implemented under the docket No. 86 — 0128 order. That calculation could take into account any increase in sales during the period the rates under the docket No. 86 — 0128 order were in effect, as well as the difference in revenue shift from summer to nonsummer rates as set forth in the order. Accordingly, the order provided, in Finding 10:

“[T]he annual revenue requirements established in Edison’s most recent rate case, and currently utilized in the rate levels under Edison’s existing tariffs, are maintained in the restructuring of Rate 1 — Residential Rate and the rates established in this proceeding; consideration should be given in Docket 87 — 0427, to any actual revenue shortfalls resulting from the rates established herein offset by any quantifiable increase in sales during the summer billing period for the period of time during which the rates remain in effect; appropriate modification should be implemented in 1988, to the extent possible.”

On December 30, 1988, the same day in which the decision in Commonwealth Edison was filed, the Commission entered its order in docket No. 86 — 0427, authorizing, effective January 1, 1989, implementation of rates generating an increase in revenues of approximately $235 million.

On February 23, 1990, following the filing of complainants’ actions before the Commission in the instant case, the Commission issued its refund order. In a preface, the Commission acknowledged the period addressed by the refund order began in June, with the beginning of the 1988 summer rate billing period, and continued through December, the period during which rates in docket No. 86 — 0128 would have been in effect, and ended January 1, 1989, when rates imposed under the docket No. 87 — 0427 order became effective. The refund order also identified that the parties’ disagreement centered on the achievement of revenue neutrality and interpretation of Finding 10 in addressing that issue. Essentially, the argument was whether, as Edison contended, Finding 10 required revenue neutrality for the period June through December 1988.

Edison had acknowledged that, if the rates contained in the docket No. 86 — 0128 order had been implemented, the revenue shortfall recoverable through Finding 10 would have exceeded $153 million in light of the revenues collected by special permission in docket No. R. 18712. However, Edison argued that the refund should have been calculated for the relevant period by comparing revenues which would have been collected under the docket No. 86 — 0128 order, had Edison’s stay of operation of that order not been allowed, and revenues which would have been collected assuming the Commission had not granted Edison the special permission to revise rates in docket No. R. 18712. Edison calculated that amount to be approximately $5.7 million. That calculation was consistent with Commonwealth Edison, Edison concluded, because the decision did not address what action the Commission should take in the event that rates designed to be revenue neutral over a 12-month period did not, in fact, remain in place for such a period.

Complainants contended that the refund amount should have been approximately $158.8 million. Complainants calculated that amount as the difference between amounts which should have been collected from June through December 1988 under the docket No. 86 — 0128 order and amounts actually collected under the special permission granted in docket No. R. 18712. Edison’s refund calculation, complainants argued, was improper because Edison asserted that the rates set in the docket No. 86 — 0128 order must be revenue neutral from June through December 1988 on a “calendar-year” basis, rather than on a 12-month basis.

The Commission’s staff agreed with both Edison and complainants that the refund calculation had to incorporate a consideration of the amounts which should have been collected had the docket No. 86 — 0128 order not been stayed. However, the staff recommended that the refund calculation should also have incorporated consideration of actual revenues collected by Edison over the relevant period. The Commission’s staff’s position acknowledged the intent of the docket No. 86 — 0128 order to be revenue neutral over a 12-month period, but contemplated that that period contain one full cycle of summer and nonsummer rate billing periods. Accordingly, the Commission’s staff’s methodology included consideration of amounts collected in 1989 in order to utilize a complete billing cycle as a means to best accomplish the Commission’s intentions. The resulting refund amount totalled $43.2 million.

In its conclusion, the Commission recognized that revenue neutrality during 1988 would have been achieved under rates contained in the docket No. 86 — 0128 order only if those rates had been implemented on January 1, 1988. Mid-year implementation of the rates could achieve revenue neutrality only via adjustment through Finding 10 in proceedings then pending in docket No. 87 — 0427. The Commission concluded the effect of Commonwealth Edison was to approve that goal. The Commission thus measured the refund by comparing revenues which would have been generated without entry of the docket No. 86 — 0128 order with revenues produced by the rates implemented by special permission in docket No. R. 18712. The Commission reasoned that, had the docket No. 86 — 0128 order not been stayed, those rates would have been in effect until December 31, 1988. Because summer rates would have been reduced substantially more under the docket No. 86 — 0128 order than under special permission granted in docket No. R. 18712, Edison would have had to have charged consumers approximately $153 million as a surcharge to achieve revenue neutrality. However, because rates in the docket No. 86 — 0128 order were not applied, the shortfall did not materialize and consumers paid only $5.7 million more than they would have paid if neither the order in docket No. 86 — 0128 nor the special permission in docket No. R. 18712 had been in effect. The Commission therefore concluded that amount was to be refunded. The Commission ordered the refund amount to be improved with simple interest at 5%, and directed that the refund should be paid to current consumers, rather than consumers who actually paid the rates under the docket No. R. 18712 special permission.

While orders of the Commission are deemed prima facie reasonable and the scope of review on appeal from such an order is recognized as limited under the Public Utilities Act (see Ill. Rev. Stat. 1987, ch. lll2/3, pars. 10 — 201(d), (e)), a reviewing court is not constrained to accept the Commission’s determination on a question of law. (Business & Professional People for the Public Interest v. Illinois Commerce Comm’n (1989), 136 Ill. 2d 192, 555 N.E.2d 693.) We have found no case in this State involving consideration of the Commission’s interpretation of one of its previous orders to determine the appropriate refund under circumstances such as are present here. However, there can be no question but that the appropriateness of the present refund order presents a legal question as it resulted from the Commission’s interpretation of its own order in docket No. 86 — 0128 in light of judicial invalidation of the special permission granted in docket No. R. 18712. See General Mills, Inc. v. Illinois Commerce Comm’n (1990), 201 Ill. App. 3d 715, 559 N.E.2d 225.

The Commission’s refund order correctly identifies the relevant time period to be addressed by the refund as the period from June through December 1988, the time when rates under the docket No. 86 — 0128 order should have been in effect. However, the methodology adopted to arrive at the appropriate refund amount incorporated an improper interpretation of Finding 10, requiring the attainment of revenue neutrality over that time period. Certainly, preservation of Edison’s revenue requirements was a concern throughout the proceedings in docket No. 86 — 0128 and thus was reflected in the adjustment provision contained in Finding 10. Finding 10, however, was never intended to operate to achieve that result through implementation of the rates in the docket No. 86— 0128 order over the relevant time period, which consideration necessarily incorporates, in light of the stay of that order, the improper implementation of the special permission rates in docket No. R. 18712. Rather, Finding 10 contemplated that any revenue shortfall resulting from implementation of the rates in the docket No. 86 — 0128 order was to be addressed, if at all, in consideration of proceedings in docket No. 87 — 0427, then pending before the Commission.

Indeed, the record indicates that when the rates contained in the docket No. 86 — 0128 order were implemented in June 1988, it was contemplated that those rates would be in effect only until the rates contained in the docket No. 87 — 0427 order would become effective on January 1, 1989. Moreover, all parties understood that the rate schedule contained in the docket No. 86 — 0128 order could achieve revenue neutrality only if implemented over a complete 12-month billing cycle which included both summer and nonsummer rate billing periods. Last, Finding 10 contemplated timely effect of the order entered in docket No. 86 — 0128. In short, the effect of the interpretation given Finding 10 in the methodology adopted by the Commission in the refund order results in elevating concern for Edison’s revenue requirements above a concern for recognition of the proper rates which should have been charged consumers, but which were not implemented, over the relevant time period.

To that extent, the refund methodology adopted by the Commission is flawed and the refund order must be reversed. Had Edison not sought to stay operation, pending appeal, of the rate schedule contained in the docket No. 86 — 0128 order, which schedule Edison, itself, originally proposed, and had Edison not sought, in the interim, to implement rates by special permission in docket No. R. 18712, which proceedings we later determined to be improper, consumers would have paid revenues under the schedule contained in the docket No. 86 — 0128 order. Actual revenue shortfalls resulting during the period June through December 1988 could have been recouped by Edison through proper operation of Finding 10 by adjusting rates in the then pending proceedings in docket No. 87 — 0427.

Thus, the appropriateness of a refund determination in light of Commonwealth Edison must reflect the above concerns and must be founded on the realization that the rates imposed by special permission in docket No. R. 18712 should never have been implemented. The methodology must incorporate some means to reflect adjustments which Edison should have been permitted by Finding 10 to make in the proceedings in docket No. 87 — 0427 to offset actual revenue shortfalls resulting from operation of the rates imposed under the docket No. 86 — 0128 order over the period of time those rates should have been in effect from June through December 1988. To that extent, it may be necessary to consider amounts actually collected in 1989 under rates implemented under the docket No. 87 — 0427 order to permit consideration of a complete 12-month billing cycle.

Complainants have also raised issue with the Commission’s application of simple interest at the rate of 5% to the refund and the decision to direct the refund to present Edison consumers.

With regard to applicable interest, complainants contend that the refund amount should be improved with compounded interest at the rate applicable to the rate Edison is required to pay on consumer deposits under the Illinois Administrative Code in section 280.70(e)(2), as permitted by section 280.75 (83 Ill. Adm. Code §280.75 (1985)). However, by its terms, section 280.75 applies only to refunds necessitated where a consumer “pays a bill as submitted by a public utility and the billing is later found to be incorrect due to an error either in charging more than the published rate, in measuring the quantity or volume of service provided, or in charging for the incorrect class of service.” (83 Ill. Adm. Code §280.75 (1985).) Those circumstances are not present in the instant case.

Instead, because a refund is required here based on an improperly implemented rate schedule, the applicable interest is more appropriately determined pursuant to section 9 — 252 of the Public Utilities Act, which addresses excessive or unjust rates. Section 9— 252 permits interest on the amount to be refunded at the “legal rate.” (Ill. Rev. Stat. 1987, ch. lll2/3, par. 9 — 252.) In light of the applicability of section 9 — 252, we cannot conclude the Commission’s decision to improve the amount to be refunded with simple interest at 5% was improper. See Citizens Utilities Co. v. Illinois Commerce Comm’n (1987), 157 Ill. App. 3d 201, 510 N.E.2d 52, appeal denied (1987), 116 Ill. 2d 549, 515 N.E.2d 103.

Last, complainants argue that the refund should issue directly to those consumers who actually paid greater amounts under the rates contained in the special permission in docket No. R. 18712. The record indicates that the Commission’s determination that the then current consumers were to receive the refund was conditioned upon the amount of refund to be made under the methodology adopted. Because we find that methodology to be improper and reconsideration by the Commission necessary, we decline to pass, at this time, upon the propriety of issuing the refund only to current consumers pending the Commission’s further consideration.

Reversed in part; affirmed in part and remanded.

MANNING, P.J., and BUCKLEY, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE RAKOWSKI

license: Public Domain

text:
    JANET TERRY PEARSON, Plaintiff-Appellant, v. CECIL A. PARTEE et al., Defendants-Appellees (William Hall, Defendant).
    First District (6th Division)
    No. 1-90-2013
    Opinion filed July 19, 1991.

      Braun & Rivkin, Ltd., of Chicago (Lee M. Weisz and Michael A. Braun, of counsel), for appellant.
    Bernard B. Nathan, of Chicago, for appellees.
   PRESIDING JUSTICE RAKOWSKI

delivered the opinion of the court:

Plaintiff appeals from an order entered by the circuit court granting the motion of defendants Cecil Partee and Hollis Green for summary judgment on plaintiff’s second amended complaint. The action against William Hall remains pending in the circuit court and is not part of this appeal. We have jurisdiction pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). The issues on appeal are: (1) whether the trial judge had authority to grant a motion for summary judgment where the motion was previously denied by another judge; and (2) whether plaintiff may preclude an otherwise successful motion for summary judgment based upon a theory of apparent authority which is not alleged in her second amended complaint. We affirm.

In her second amended complaint, plaintiff alleges that she retained defendants Cecil Partee, Hollis Green and William Hall to provide legal services regarding an incident which occurred in March of 1974, at the Evergreen Plaza shopping mall. According to plaintiff, she and her companion were improperly detained, searched and falsely accused of shoplifting. Hall defended plaintiff in the subsequent criminal proceeding. When the criminal charges were dismissed, Hall filed a civil complaint on plaintiff’s behalf for false arrest which sought $100,000 in damages. Plaintiff also alleges in the second amended complaint that Partee, Green and Hall failed to prosecute the civil suit and respond to motions, and that as a result, the false arrest claim was eventually dismissed. The complaint also claims that Hall, acting on behalf of Partee and Green, did not respond to her numerous written and telephone inquiries regarding the progress of her case and told plaintiff that the suit was still pending when it had been dismissed for more than a year.

Plaintiff filed her initial complaint against defendants on June 19, 1984. Defendants Partee and Green then filed a motion to dismiss plaintiff’s complaint pursuant to section 2 — 407 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 407), claiming that Hall was not their agent or employee and that they had not been retained by plaintiff. Along with the motion, Partee and Green filed supporting affidavits of Partee, Green and Hall. The court found that the motion to dismiss was improper, and on September 27, 1984, entered an order granting Partee and Green leave to refile their claims as a motion for summary judgment pursuant to section 2 — 1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1005). Defendants subsequently refiled their motion as a motion for summary judgment. Following a hearing on November 14, 1988, Judge Edwin Berman denied the motion based on his finding that there was an issue of fact as to whether Hall’s relationship with Partee and Green was one of apparent authority. Next, on May 2, 1990, defendant Hall filed a motion to dismiss plaintiff’s complaint pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615). By this time the matter was assigned to Judge Dean J. Sodaro, who granted the motion to dismiss and allowed plaintiff leave to file an amended complaint. On May 22, 1990, plaintiff’s first amended complaint was also stricken pursuant to section 2 — 615 of the Code of Civil Procedure, and she was again granted leave to amend. On May 25, 1990, plaintiff’s second amended complaint was filed. Defendant Hall then filed a motion for a judgment on the pleadings pursuant to section 2 — 615(e) of the Code of Civil Procedure, and defendants Partee and Green again filed a motion for summary judgment. On June 15, 1990, the assignment judge transferred the case to Judge Angelo D. Mistretta for a hearing on both motions. The motion for summary judgment was supported by the same affidavits which supported the first motion for summary judgment which had been filed in response to plaintiff’s initial complaint. The basis of the motion before Judge Mistretta was again that Hall was not an agent or employee of Partee and Green, that Partee and Green had not been retained by plaintiff and that Partee and Green owed the plaintiff no duty. In her response to the motion for summary judgment, plaintiff stated that Hall had been recommended to her because of his association with the law firm of Partee & Green, that a sign located outside of the office of Partee & Green listed the names of individual attorneys, including Hall, that Hall informed her that he was with the law firm of Partee & Green and gave her a business card with Partee & Green printed on it. Plaintiff also stated that the person answering the telephone referred to the law firm as Partee & Green and that the documents used in the false arrest suit contained the Partee & Green letterhead. Judge Mistretta ruled in favor of defendants and granted their motion for summary judgment. Defendant Hall’s motion for a judgment on the pleadings was denied, and he was directed to answer plaintiff’s second amended complaint.

Plaintiff first contends that it was error for Judge Mistretta to grant summary judgment in defendants’ favor because the motion filed in June 1990 consisted of the same arguments and contentions found in the 1988 motion for summary judgment which Judge Berman had denied. Plaintiff cites W.R. Grace & Co. v. Beker Industries, Inc. (1984), 128 Ill. App. 3d 215, 470 N.E.2d 577, for the premise that once a court has issued a ruling, it should not be reversed by another court of coordinate jurisdiction unless there has been some change in circumstances or the discovery of additional facts which would warrant such action. Plaintiff claims that, because the substance of defendants’ second motion for summary judgment and supporting affidavits was essentially the same as their first motion, which was denied, it was improper to change the original ruling. In W.R. Grace & Co. the court held that the dismissal of a complaint alleging breach of a partially performed litigation settlement agreement based on forum non conveniens was improper. The litigation settlement agreement was part of a consent judgment involving corporate parties residing in different States. A motion for dismissal based on forum non con-veniens had previously been denied by the trial judge in the original litigation, which was subsequently settled. The appellate court held that the dismissal of the related litigation based on forum non con-veniens was improper because the movant failed to show that its State would be a more convenient forum or that there were other reasons of merit to move the litigation to the movant’s State. The court then added that there had been no change in circumstances based on forum non conveniens principles to show that the trial court’s prior denial of a similar motion by Beker was an abuse of discretion. W.R. Grace & Co. cited Balciunas v. Duff (1983), 94 Ill. 2d 176, 188, 446 N.E.2d 242, which held that once a court has exercised its discretion, that ruling should not be reversed by another member of the court unless there has been a change in circumstances or additional facts which would warrant such action. W.R. Grace & Co., 128 Ill. App. 3d at 222.

However, W.R. Grace & Co. and Balciunas involved matters which were discretionary, unlike this case, which involves a motion for summary judgment. As a result, both cases are inapplicable. The Illinois Supreme Court in Rowe v. State Bank (1988), 125 Ill. 2d 203, 213, 531 N.E.2d 1358, stated:

“[T]his court has repeatedly held that the circuit court has the inherent power to modify or vacate an interlocutory order granting summary judgment any time before final judgment.”

(See also Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 120-21, 382 N.E.2d 1217; Tracy v. Montgomery Ward & Co. (1990), 193 Ill. App. 3d 304, 307, 549 N.E.2d 984.) The court in Rowe further added:

“It is true that this court has disapproved of one judge reviewing interlocutory orders entered by another judge where there is evidence of bad faith or ‘judge shopping’ by the party who obtains an adverse ruling.” (Rowe, 125 Ill. 2d at 214.)

The court in Towns v. Yellow Cab Co. stated:

“While prior rulings should be vacated or amended only after careful consideration, *** a court is not bound by an order of a previous judge [citation] and has the power to correct orders which it considers to be erroneous.” Towns, 73 Ill. 2d at 121.

In this case we find no evidence of bad faith or judge shopping where the matter was assigned to several judges as part of the administrative process of judicial assignment. Therefore, we conclude that the trial court’s order granting defendants Partee and Green’s motion for summary judgment was within its authority.

Plaintiff next claims that the trial court’s order for summary judgment was improper because there was a triable issue of fact as to whether there was an agency relationship between Hall and Partee and Green based upon the doctrine of apparent authority. In her second amended complaint, however, plaintiff alleged:

“Hall, Partee, and Green were retained by Pearson for the purpose of prosecuting her claims and causes of action against various defendants arising out of an incident which occurred on March 31,1974.”

No facts were alleged which would support a theory of apparent authority.

In response to plaintiff’s second amended complaint, defendants Partee and Green filed a motion for summary judgment. The motion was supported by the affidavits of all three defendants stating that Partee and Green were never retained by plaintiff and that Partee and Green did not file any pleadings regarding the 1974 shoplifting incident as alleged in plaintiff’s second amended complaint. The affidavits also stated that there was no agency relationship between Hall and Partee and Green and that Hall was not an employee of the firm. The trial court granted the motion finding that there was no genuine issue relative to Partee and Green. In order for a complaint to provide recourse for an alleged injury, a complaint must set forth a legally recognized claim, and it must plead facts which bring the claim within the legally recognized cause of action alleged. (People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill. 2d 300, 308, 430 N.E.2d 1005.) However, unsupported allegations in a complaint do not raise a question of fact where affidavits and depositions in support of a motion for summary judgment contain evidentiary facts to the contrary. Lesnik v. Estate of Lesnik (1980), 82 Ill. App. 3d 1102, 1106, 403 N.E.2d 683.

Plaintiff claims that there was an agency relationship between Hall and the other two defendants based on apparent authority because Partee and Green allowed Hall to hold himself out as an attorney with their firm. The authority of an agent comes from the principal and may be actual or apparent. (Hofner v. Glenn Ingram & Co. (1985), 140 Ill. App. 3d 874, 881, 489 N.E.2d 311.) Apparent authority is that authority which the principal knowingly permits the agent to assume or which he holds the agent out as possessing. (Hofner, 140 Ill. App. 3d at 882, citing Schoenberger v. Chicago Transit Authority (1980), 84 Ill. App. 3d 1132, 405 N.E.2d 1076.) A plaintiff pleads a cause of action for agency when he or she alleges facts which show that one has acted for another under circumstances which imply knowledge of such acts on the part of the alleged principal. Hofner, 140 Ill. App. 3d at 880.

While plaintiff claims that she has a cause of action against Partee and Green based on apparent authority, which is a legally recognized doctrine, no facts are alleged in the second amended complaint to support such a theory. The second amended complaint only states that Hall, Partee and Green were retained by plaintiff. It neither alleges the conclusion that Partee and Green held Hall out as part of the firm nor any facts which would support such a conclusion. Thus, when defendants presented evidence which defeated plaintiff’s allegation that she had retained Partee and Green, the second amended complaint contained no legally sufficient cause of action, and Partee and Green were entitled to summary judgment. See Johnson v. Hilton Hotel Corp. (1989), 190 Ill. App. 3d 197, 546 N.E.2d 617; Illinois Traffic Court Driver Improvement Educational Foundation v. Peoria Journal Star, Inc. (1986), 144 Ill. App. 3d 555, 563, 494 N.E.2d 939.

Therefore, we conclude that the order of the trial court for the entry of summary judgment in favor of defendants Partee and Green was proper.

Accordingly, the judgment of the circuit court is affirmed.

Judgment affirmed.

McNAMARA and LaPORTA, JJ., concur.


author: JUSTICE BUCKLEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDDIE EDWARDS, Defendant-Appellant.
    First District (1st Division)
    No. 1-87-2785
    Opinion filed July 22, 1991.

      Michael J. Pelletier and James Chadd, both of State Appellate Defender’s Office, of Chicago, and Eddie Edwards, of Dixon, pro se, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and William Pistorius, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE BUCKLEY

delivered the opinion of the court:

After a jury trial, defendant Eddie Edwards (defendant) was convicted of murder and sentenced to 20 years in the Illinois Department of Corrections. Defendant appeals his conviction on the grounds that he was (1) denied a fair trial because the prosecutor made an improper closing argument which shifted the burden of proof to defendant to prove his innocence; (2) denied his sixth amendment right to confrontation because the court sustained an objection to a question of a witness’ sexual relationship with defendant which would show her bias; (3) denied his due process right to present a defense because the court sustained an objection to a question posed to a police officer regarding traffic patterns of particular streets; (4) denied a fair trial because the prosecutor, in closing argument, told the jury that the State represented everyone in the courtroom; (5) not proven guilty beyond a reasonable doubt; (6) denied effective assistance of counsel; (7) denied a fair trial because of certain comments made by the State regarding his alibi witnesses; and that (8) the trial court coerced a deadlocked jury into rendering a hastened verdict.

On July 18, 1986, Rhonda Jenkins (victim) was shot and killed outside her cousin Debra Mitchem’s home at approximately 11:15 p.m. Defendant was indicted, tried by a jury and found guilty of murdering victim.

The evidence at trial showed that defendant dated victim approximately three years before victim broke off her relationship with him. The relationship had been over for about one year before victim was killed. Following their breakup, defendant and victim saw each other, although the nature of their continued relationship is disputed. Defendant testified that he continued to socialize with victim once or twice a week after she had moved out of the apartment he had rented for her. Defendant claimed that victim frequently stopped by the variety store he owned and occasionally spent weekends at his apartment. An employee of defendant also testified that victim seemed happy not frightened when she stopped by the store. The State’s witnesses testified that defendant and victim did not continue to see each other socially, and in fact, victim ignored defendant when they were present at the same place.

The State’s witnesses also disclosed situations where defendant and victim were hostile to one another. For example, Mitchem related an incident where she was forced to call the police on defendant after he pretended to pull a gun on victim. Mitchem, along with her brother, John Relf, testified that about a week before victim was killed, defendant attended a birthday party at Mitchem’s home. Victim was present and defendant attempted to talk with her although she clearly indicated to defendant that she did not want to speak with him. Defendant became agitated with victim and refused to leave her alone. Finally, defendant was asked to leave the party, and when he refused, Relf physically pushed him out the door. The State also introduced evidence that victim filed a criminal complaint for assault against defendant which was to go to trial about a month after she was killed.

The day of victim’s murder, Relf telephoned defendant and asked him to pick him up after work. At approximately 4 to 4:30 p.m., defendant picked up Relf and Henry Barnes and drove to his store. The men stayed at the store drinking beer and talking for about an hour until defendant’s wife and son showed up at the store. Defendant drove his wife and son home, accompanied by Relf and Barnes. After dropping off his wife and son, the men continued on to another house where they stayed for about 20 minutes. Defendant then drove Barnes to his home, and he and Relf arrived back at the store at approximately 6:30 p.m.

While at the store the two socialized until, as defendant testified, they went across the street to a tavern and shot a game of pool and then returned to the store. The two men stayed at the store until it closed. Relf testified that the store closed at 10:05 p.m., but defendant testified it closed at 10:30 p.m. According to Relf, the two men drove defendant’s employee to 71st and Indiana at approximately 10:15 p.m. Thereafter, defendant drove Relf to 1132 East 42nd Street. Relf claimed the traffic was light; however, defendant claimed it was heavy. Relf got out of the car to look for his friend. After about three minutes, Relf returned to the car and stated that he could not find his friend.

The two men proceeded west on 43rd Street until Relf recognized some friends and requested defendant pull the car over so he could get out. Relf got out of the car and went to talk to the friends. Relf stated that he talked to his friends for approximately 10 minutes. At approximately 10:45 p.m. Relf walked back to where the car had been parked and it was no longer there. Relf did not see the car leave and does not know when it left. The time period was corroborated by one of the friends with whom Relf spoke.

According to defendant, after Relf exited his car a police officer told him to move his car because he was parked in a bus stop. Defendant drove around the block and returned but the police officer told him to “move on.” Defendant pulled around the corner and looked for Relf, but he did not see him, so he drove to Lois Craft’s home at 70th and Halsted. Craft testified that he arrived at approximately 11:45 p.m. to midnight. The two drove in Craft’s car to a lounge at 127th and Michigan but did not stay there long. The couple then went to the Holiday Inn at 172nd and Halsted, where they spent the night and left the next morning at approximately 10 a.m. Craft corroborated the majority of this testimony.

Mitchem was a key witness for the State. Mitchem testified that she was victim’s cousin and had known defendant for five years and was very familiar with him and his car. According to Mitchem, victim arrived at her home at about 10 p.m. on July 18, 1986. She and victim picked up a pizza, brought it to Mitchem’s home and ate it with Mitchem’s son. Victim decided to leave at approximately 11:10 p.m. Victim left out the back door as Mitchem stood on her back porch and watched her. As victim walked toward the gate, Mitchem saw defendant walking just inside the gate. Defendant said, “Hey, y’all. How y’all doing?” Mitchem said, “Hello” to defendant, but victim said nothing. Victim continued to walk to her car, which was parked in front of Mitchem’s home. Defendant turned and followed victim. Mitchem, at this point walked to her front door so she could watch victim get into her car safely. Mitchem heard victim scream, “Stop it, Edward.” Mitchem rushed to the front door because she thought defendant was beating victim. Mitchem heard three gunshots which came from somewhere in front of her home.

When Mitchem got to the front door and went outside, she saw victim running down the street and defendant standing with a gun in his hands. After standing there a moment, defendant fled to his car. Victim fell in the middle of the street approximately four houses south of Mitchem’s house. Defendant got into his four-door silver Cadillac, which Mitchem identified, and proceeded to victim’s body and drove around it. Terrell Mitchem, Mitchem’s son, testified that defendant had called and asked for victim just prior to coming to Mitchem’s house. Mitchem ran over to victim, who was not moving. An ambulance arrived and took victim to a hospital.

Dr. Eupil Choi, a Cook County medical examiner, performed an autopsy on victim. At defendant’s trial he testified that victim had died from multiple gunshot wounds.

Following closing arguments, the jury retired to deliberate at 7:09 p.m. At 12:26 a.m. the jury sent a note to the court saying they were deadlocked. The court asked the foreperson if the jury could reach a verdict if they continued deliberating. The foreperson responded that the jury could. The court ordered the jury to continue deliberating and made arrangements for the jury to spend the night at a motel.

The following day at 5:07 p.m. the court went on record in the presence of the State and the defense and stated that it believed the jury had spent too much time deliberating on what the court believed was a relatively simple case. At that point the jury had spent over 14 hours deliberating. Therefore, the court admonished the jury pursuant to People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601. The jury again retired and returned a verdict of guilty within three hours. The court sentenced defendant to 20 years’ imprisonment. This appeal was timely filed.

Defendant contends that the State’s following argument denied him a fair trial:

“And then think about something else, if this man [Edwards] didn’t kill Rhonda Jenkins, well, who in the world did, because there isn’t one single sled [sic] of evidence that anyone else killed her, anyone had any reason to do that.”

Defendant asserts that the above statement was improper because it attempted to shift the burden of proof to the defense by asking the jury to find defendant guilty because there was no evidence anyone else had committed the offense.

In order to preserve an issue for appellate review, “[b]oth a trial objection and a written post-trial motion raising the issue are required for alleged errors that could have been raised during trial.” (Emphasis omitted.) (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130; Ill. Rev. Stat. 1983, ch. 38, par. 116-1.) The defendant, however, failed to object to the State’s comment at trial and further failed to raise the issue in its motion for new trial. The defendant correctly points out that failing to make the proper objection to the State’s comment constitutes waiver in the absence of plain error. (Enoch, 122 Ill. 2d at 187, 522 N.E.2d at 1130; People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) Supreme Court Rule 615(a) states that “[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” (73 Ill. 2d R. 615(a).) The doctrine of plain error may be invoked in criminal cases where the evidence is closely balanced or where the error was of such magnitude that the accused was denied a fair trial. People v. Lucas (1981), 88 Ill. 2d 245, 251, 430 N.E.2d 1091, 1094; People v. Jackson (1981), 84 Ill. 2d 350, 418 N.E.2d 739; People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.

Initially, this court should note that during closing argument defense counsel stated: “Maybe something was upset, because Rhonda had said, ‘I’m going back and live with Eddie.’ That seems motive to me. ‘No, you are not.’ ‘Yes, I am.’ ‘Boom, boom.’ ” This statement was clearly an attempt to imply that someone else had motive to kill victim. There was not, however, any evidence produced at trial to support this implication. In response to defense counsel’s argument, the State truthfully commented that there was not any evidence that anyone else killed victim. When such remarks are invited by defense counsel, the defendant is precluded from complaining about them. (People v. Holman (1989), 132 Ill. 2d 128, 547 N.E.2d 124; People v. Webster (1988), 175 Ill. App. 3d 119, 529 N.E.2d 741.) In People v. Taylor (1986), 146 Ill. App. 3d 45, 51, 496 N.E.2d 263, 267, the prosecutor stated, “What did the defense prove? They proved that there was [sic] inconsistencies. *** They didn’t prove that Melvin Fulton or Patty Howard or any of our witnesses was [sic] unbelievable.” The court found that these statements were not an attempt to shift the burden of proof, but rather were an argument regarding the strength of the State’s evidence and, therefore, were not improper. We find that the prosecutor’s statement in the case at bar similarly is not improper.

The cases defendant relies upon are distinguishable. For example, in People v. Giangrande (1981), 101 Ill. App. 3d 397, 428 N.E.2d 503, the prosecutor asked, “Now where’s the evidence that the defendant didn’t do it?” (Emphasis omitted.) (Giangrande, 101 Ill. App. 3d at 402, 428 N.E.2d at 507.) This statement implied that the defendant had a burden to introduce evidence. (Giangrande, 101 Ill. App. 3d at 402, 428 N.E.2d at 507.) But, in the case at bar, the statement in question was a response to defense counsel’s implication that someone else committed the murder.

In People v. Harbold (1984), 124 Ill. App. 3d 363, 464 N.E.2d 734, the prosecutor repeatedly stated that there was no evidence which showed defendant was not guilty. (Harbold, 124 Ill. App. 3d at 372, 464 N.E.2d at 741.) Similarly, in People v. Weinstein (1966), 35 Ill. 2d 467, 220 N.E.2d 432, the prosecutor repeatedly argued to the jury that the defendant had the burden of raising a reasonable doubt of her guilt. Despite sustained objections to this line of argument, the prosecutor continued to make such arguments. (Weinstein, 35 Ill. 2d at 469, 220 N.E.2d at 434.) The court held that, “[i]n essence, they [the statements] destroyed the presumption of innocence, to which defendant was entitled at all stages of trial, [citation] and they imposed upon defendant a heavier burden than the law required while lessening that of the prosecution. [Citation.] Additionally, the argument was tantamount to telling the jury that defendant had the burden of. proving her innocence.” Weinstein, 35 Ill. 2d at 470, 220 N.E.2d at 434.

This case is analogous to People v. Jones (1988), 123 Ill. 2d 387, 528 N.E.2d 648, because in both cases the State’s comment was an isolated one, the State reminded the jurors that the defendant must be proved guilty beyond a reasonable doubt and the instructions also stated that the burden of proving the guilt of the defendant beyond a reasonable doubt remains upon the State throughout the case. In Jones, the court held that the prosecutor’s statements did not interfere with the jury’s proper evaluation of the evidence. (Jones, 123 Ill. 2d at 414, 528 N.E.2d at 660.) The State’s comments did not substantially prejudice the defendant in a manner that resulted in depriving defendant of a fair trial. See People v. White (1989), 192 Ill. App. 3d 55, 548 N.E.2d 421.

Defendant contends that he was denied his sixth amendment right of confrontation because the court prevented defense counsel from exposing a possible bias and motive to lie by a State’s witness when defense counsel attempted to question Mitchem concerning whether she had sexual intercourse with the defendant in the past. It is within the ambit of the constitutional guarantee of confrontation to impeach a State’s witness by showing a witness’ bias. (People v. Rufus (1982), 104 Ill. App. 3d 467, 472, 432 N.E.2d 1089, 1094.) The court should allow the widest latitude in cross-examination for establishing bias. (Rufus, 104 Ill. App. 3d at 473, 432 N.E.2d at 1095.) This latitude, however, rests in the sound discretion of the trial court. (People v. Maldonado (1989), 193 Ill. App. 3d 1062, 1069, 550 N.E.2d 1011, 1018; People v. Franklin (1976), 42 Ill. App. 3d 408, 420, 355 N.E.2d 634, 644.) An appellate court only interferes in the trial court’s decision where there is a clear abuse of discretion resulting in manifest prejudice to the defendant. Franklin, 42 Ill. App. 3d at 420, 355 N.E.2d at 644.

The trial court’s discretion to restrict the scope of cross-examination comes into play only after the court has permitted, as a matter of right, sufficient cross-examination to satisfy the constitutional guarantee. (Rufus, 104 Ill. App. 3d at 473, 432 N.E.2d at 1095.) To determine the constitutional sufficiency of cross-examination, this court should look not to what a defendant had been prohibited from doing, but to what he had been allowed to do. (Maldonado, 193 Ill. App. 3d at 1069, 550 N.E.2d at 1016.) If the entire record indicates that the jury were made aware of adequate factors concerning relevant areas of impeachment of a witness, then no constitutional question arises merely because defendant was prohibited from pursuing another line of questioning. Rufus, 104 Ill. App. 3d at 473-74, 432 N.E.2d at 1095, quoting People v. Hines (1981), 94 Ill. App. 3d 1041, 1048, 419 N.E.2d 420, 425-26.

The jury in the case at bar had sufficient information to make a discriminating appraisal of Mitchem. Mitchem testified that she dated defendant prior to the victim’s dating him. Moreover, Mitchem testified that she was not happy about the fact that the victim and defendant were dating. Defendant testified that he had dated Mitchem prior to dating the victim. Testimony also shows that Mitchem and the defendant had not dated for five years prior to the slaying of the victim. Finally, in closing argument, defense counsel argued that defendant did, in fact, "sleep with Debra Mitchem and he slept with her for eight or nine months ***. So, the relationship between Debra Mitchem and this man developed into something more than a casual relationship. They were engaged in sexual intercourse.” These facts were not even in the record. After reviewing the record, the jury had sufficient information to determine whether Mitchem’s testimony was worthy of belief. See Maldonado, 193 Ill. App. 3d at 1069, 550 N.E.2d at 1016.

Defendant attempts to support his argument with case law. Defendant’s citations, however, are distinguishable in that they involve situations where defense counsel was not allowed to inquire into certain areas (see People v. Wilkerson (1981), 87 Ill. 2d 151, 429 N.E.2d 526 (defense counsel was not allowed to expose that witness was being rewarded for testimony and was charged with several crimes); People v. Thompson (1979), 75 Ill. App. 3d 901, 394 N.E.2d 422 (defense counsel was not allowed to cross-examine a witness regarding the fact that he would not have been able to file an insurance claim to recover the loss unless the criminal proceedings were brought)), the cited cases bolster the State’s position because they involve situations where the court found the desired testimony too remote, uncertain and speculative (People v. Triplett (1985), 108 Ill. 2d 463, 485 N.E.2d 9), or the cited cases involve situations where the trial court had, in fact, allowed testimony regarding bias and the appellate court affirmed (People v. Hominick (1988), 177 Ill. App. 3d 18, 531 N.E.2d 1049). In the case at bar, defense counsel was allowed to elicit testimony regarding Mitchem’s relationship with defendant in order to demonstrate her bias and, therefore, defendant was not denied his sixth amendment right of confrontation.

Defendant argues that he was denied his due process right to present a defense because the trial court sustained an objection to defense counsel’s question regarding traffic conditions. The disputed questions asked by defense counsel were “How would you classify the traffic situation on a July evening, on Cottage Grove, in the city of Chicago?” “Is Cottage Grove a heavily traveled street?” and “Are you familiar with the traffic conditions on Cottage Grove during the summer period?” It is true that defendant elicited testimony from this police officer regarding the facts that he was familiar with the street and surrounding area and had traveled the street many times in his 19 years as a police officer. The disputed questions, however, are overly broad and would require the police officer to draw conclusions of fact for which there was no foundation that he had personal knowledge of the conditions during the particular night and time in question. Furthermore, the police officer testified that neither he nor any other officer within his unit or command drove the distance from 43rd Street and Ellis to 9827 South Merrill on the night victim was murdered.

Questions are irrelevant when they are overbroad and do not refer to a specific instance. (Kleeman v. Frogman Construction Co. (1980), 91 Ill. App. 3d 455, 462, 414 N.E.2d 1064, 1069.) Therefore, defense counsel’s above questions were irrelevant because they were overbroad and did not refer to a specific night or a specific time. Additionally, the trial court’s decision to sustain the objections to the questions should be upheld because the questions called for conclusions rather than facts based upon personal observations of specified incidents. (Kleeman, 91 Ill. App. 3d at 462, 414 N.E.2d at 1069.) The trial court’s determination was not a clear abuse of discretion which resulted in manifest prejudice to defendant. People v. Bryant (1983), 115 Ill. App. 3d 215, 450 N.E.2d 744.

At the beginning of its closing argument, the State remarked, “[W]e, the People of the State of Illinois, me and Mr. Burke, who represent the People, we represent you, represent everyone in the courtroom, even in a manner of speaking the defendant, to present reliable, credible, evidence before the court and you are to determine that in the final analysis.” Defendant failed to object to this statement at trial and in his post-trial motion; therefore, the issue is waived on appeal. (People v. Fields (1990), 135 Ill. 2d 18, 59-60, 552 N.E.2d 791, 809-10.) Nevertheless, we review the issue under the plain error doctrine. 73 Ill. 2d R. 615(a).

Relying on People v. Vasquez (1972), 8 Ill. App. 3d 679, 291 N.E.2d 5, and Greenberg v. United States (1st Cir. 1960), 280 F.2d 472, defendant argues that the State’s remarks were improper because it attempted to portray the State as an impartial participant in the trial. In each of the above two cases the prosecutor stated that he was the “thirteenth juror.” The court found this statement to be an attempt to make the jury believe that he was an impartial member of an adversarial system. (Vasquez, 8 Ill. App. 3d at 681, 291 N.E.2d at 7; Greenberg, 280 F.2d at 474-75.) The State, in the case at bar, accurately stated that it represented the people of the State of Illinois. Moreover, the State did inform the jury that the State had the burden of proving defendant guilty beyond a reasonable doubt. We hold that the State’s remarks were not so flagrant or inflammatory as to substantially prejudice the defendant, and had the statement not been made, the result of the trial would not have been different. See People v. White (1989), 192 Ill. App. 3d 55, 62, 548 N.E.2d 421, 426.

Defendant contends that he was not proven guilty beyond a reasonable doubt. Defendant further alleges that the evidence of his guilt was entirely circumstantial. Circumstantial evidence is proof of facts or circumstances that give rise to reasonable inferences of other facts that tend to establish guilt or innocence of the defendant. (People v. Jenkins (1983), 117 Ill. App. 3d 33, 452 N.E.2d 867.) A defendant can, however, be convicted solely on circumstantial evidence. (People v. Bennett (1987), 162 Ill. App. 3d 36, 515 N.E.2d 840.) The trier of fact does not have to be satisfied beyond a reasonable doubt as to each link in the chain of circumstantial evidence. (People v. Hall (1986), 114 Ill. 2d 376, 409, 499 N.E.2d 1335, 1348.) It is sufficient if all the evidence taken as a whole satisfies the trier of fact beyond a reasonable doubt of the defendant’s guilt. (Hall, 114 Ill. 2d at 409, 499 N.E.2d at 1348.) As the defendant correctly points out, the trier of fact determines the credibility of the witnesses, the weight to be given to their testimony and the inferences to be drawn from the evidence. (People v. Berland (1978), 74 Ill. 2d 286, 385 N.E.2d 649.) Once the defendant has been found guilty, this role of the trier of fact is preserved as a legal conclusion and, accordingly, upon review, all of the evidence is considered in a light most favorable to the prosecution. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

The record reveals that when all of the evidence is taken in the above light, defendant was guilty of murder beyond a reasonable doubt. Defendant admitted to having a boyfriend/girlfriend relationship with victim until victim broke it off. Two witnesses testified that defendant would try to communicate with victim, but victim refused to speak with him. Additionally, there was testimony that defendant had hostile tendencies toward victim, including a pending assault charge filed by victim against him. One witness stated that she saw defendant and conversed with him moments before she heard the gunshots and saw defendant run to his car as victim ran until she collapsed in the middle of the street. Defendant then circled victim’s body in his car before driving away.

Nevertheless, defendant argues that his defense created some serious questions concerning whether defendant could have been at the scene of the crime. Notwithstanding, the trier of fact may disregard exculpatory accounts or other evidence that tends to support or be consistent with defendant’s innocence and rest its decision instead on circumstantial evidence of guilt presented by the State. (People v. Viano (1985), 139 Ill. App. 3d 560, 487 N.E.2d 623.) Consequently, we hold that the proof of the circumstances was sufficiently conclusive in nature, and those circumstances lead to a satisfactory conclusion which produces a reasonable and moral certainty that defendant and no one else committed the crime. See People v. Bruce (1989), 185 Ill. App. 3d 356, 541 N.E.2d 708.

Defendant contends that he was denied effective assistance of counsel because defense counsel failed to properly investigate and present evidence that would have changed the entire outcome of the trial. The United States Supreme Court established a two-prong test to review claims of ineffective assistance of counsel. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) In order to prevail on such a claim, the defendant must establish (1) trial counsel’s representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) A reasonable probability is “ ‘a probability sufficient to undermine confidence in the outcome,’ ” and defendant bears the burden of showing that, absent counsel’s errors, “ ‘the fact-finder would have had a reasonable doubt respecting guilt.’ ” (People v. Garza (1989), 180 Ill. App. 3d 263, 268, 535 N.E.2d 968, 971, quoting Strickland, 466 U.S. at 694-95, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068-69.) The competency of an attorney is determined by reviewing the totality of his conduct at trial. (People v. Robinson (1979), 70 Ill. App. 3d 24, 27, 387 N.E.2d 1114, 1116.) Mistakes in strategy will not render the representation incompetent. (People v. Shestiuk (1978), 59 Ill. App. 3d 296, 376 N.E.2d 56.) Additionally, the fact that another attorney with the benefit of hindsight claims he may have handled the case differently does not indicate that the trial attorney was incompetent. People v. Rodgers (1978), 58 Ill. App. 3d 719, 374 N.E.2d 721.

Defendant maintains that defense counsel failed to properly investigate and present evidence at trial that defendant could not have been in the vicinity where the murder occurred. Specifically, defendant complains that defense counsel informed defendant that he hired a private detective to testify to the “time element” of the case, but counsel failed to call a private investigator to the witness stand.

Defense counsel did, in fact, present evidence and argue that defendant could not have been in the area of the scene of the crime because of the time factor. Counsel examined defendant, Relf and Craft on the stand in an attempt to draw a scenario which would have made it impossible for defendant to have committed the crime because of the sequence of events and time. Further, counsel attempted to elicit testimony from a police officer concerning traffic and the amount of time it would have taken defendant to drive from point A to point B. This testimony, however, was properly barred because the officer did not have personal knowledge of the traffic conditions on that particular night. Moreover, through questioning, counsel discovered that no police officer drove any route that defendant could have possibly taken to arrive at the crime scene. Regardless, defendant does not allege that the private investigator could have, in fact, testified that it would have been impossible for defendant to reach the scene of the crime in the time frame consistent with other witnesses’ testimonies.

There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. (Garza, 180 Ill. App. 3d at 268, 535 N.E.2d at 971, citing Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065.) Defendant was provided with effective assistance of counsel, and defendant failed to establish a reasonable probability that counsel’s alleged errors substantially prejudiced defendant such that the outcome would have been different; therefore, defendant is not entitled to a new trial.

The cases defendant cites are distinguishable from the case at bar. In Robinson, defense counsel argued:

“If anybody ever came to my house and demanded fifty dollars and threatened to put out my lights if I didn’t give them fifty dollars and when I refused to give him fifty dollars he went downstairs and put out my lights, I would go downstairs with a gun. I wouldn’t do all this bullshitting you have been hearing around here for three or four days. I would put this gun in his ear, up his nose, in his mouth and I would pull the trigger and no jury in the world would convict me. Because I have a right to have my lights on.” (Robinson, 70 Ill. App. 3d at 28, 387 N.E.2d at 1117.)

The record also disclosed numerous other examples of offensive argument. Counsel further compounded his ineffectiveness by arguing that “[defendant] picked up a gun and he goes down and he kills him” when at no time did defendant testify that he went to the basement with an intent to kill. Robinson, 70 Ill. App. 3d at 28, 387 N.E.2d at 1117.

The defense counsel in People v. Baldwin (1989), 185 Ill. App. 3d 1079, 541 N.E.2d 1315, failed to present psychiatric records of the defendant which were clearly pertinent to the issue of insanity. (Baldwin, 185 Ill. App. 3d at 1090, 541 N.E.2d at 1322.) The court held that the inadequate investigation of the defendant’s records and the prejudicial effect on the fitness issue was sufficient to meet the ineffective assistance of counsel standard. (Baldwin, 185 Ill. App. 3d at 1090, 541 N.E.2d at 1323.) In Garza, defense counsel failed to obtain photographs which a witness viewed and from them tentatively identified the defendant, and counsel further failed to introduce evidence of the fact that there were inconsistencies in the identification of the defendant. (Garza, 180 Ill. App. 3d at 269, 535 N.E.2d at 970.) In the case at bar, although defense counsel did not call a private investigator to testify to the “time frame,” defense counsel did elicit testimony concerning the “time frame” of the murder and of the inconsistencies in the State’s key witness’ testimony. There is no indication in the record that the representation received by defendant fell below an objective standard of reasonableness. We find that the defendant was afforded effective assistance of counsel.

Defendant contends that the following statements by the State were improper and denied him a fair trial:

“[TJhink about what the defense witnesses told you. They have Lois, Cassandra, [sic] Diane Richardson, [sic] not wone [sic] of them sees anything that contradicts exactly what Debra told you. None of them were with Eddie Edwards between 11:00 and 11:30.
There is something else Lois told you; they weren’t even planning on staying at the Holiday Inn. She’s trying to tell you they weren’t planning on staying there so you know he didn’t take any extra clothes with him, think about that. As I told you, this man got caught in a real big lie up there and it was a last stitch effort because he had forgetten [sic] about the white shirt he’s wearing the next day.”

Further, defendant maintains that the State asked improper questions which elicited the fact that Richards and Craft did not talk to police for an entire year about their potential alibi testimony even though they knew defendant had been arrested and charged with murder. Defendant never objected to these statements or questions at trial or in a post-trial motion for a new trial; therefore, they are waived. (Enoch, 122 Ill. 2d at 186, 522 N.E.2d at 1130; Ill. Rev. Stat. 1983, ch. 38, par. 116 — 1.) Despite this fact, defendant requested that we review the issue under the plain error doctrine. (73 Ill. 2d R. 615(a).) The plain error doctrine may be invoked in criminal cases where the evidence is closely balanced or where the error was of such magnitude that the accused was denied a fair trial. Lucas, 88 Ill. 2d at 251, 430 N.E.2d at 1094.

Defendant correctly states that a prosecutor may comment on the credibility of witnesses as long as the comments are fair inferences. (People v. Evans (1988), 173 Ill. App. 3d 186, 527 N.E.2d 448.) The State did not improperly attempt to discredit defendant’s witnesses. Rather, the State truthfully referred to the fact that defendant’s witnesses failed to come forward in a timely fashion and highlighted the inconsistencies in the defense’s witnesses’ and defendant’s testimonies. The statements made by the State do not constitute error. See Evans, 173 Ill. App. 3d 186, 527 N.E.2d 448.

Defendant also contends that the prosecutor interjected his personal opinion into the case. The record is devoid of any instance in which either prosecutor expressed his personal opinions about the case; therefore, there was no error as argued by defendant. We find that there was no error as alleged by defendant; therefore, he was not denied a fair trial by any of the remarks made by the State.

At 12:26 a.m., after 5 hours and 18 minutes of deliberating, the jury sent a note to the court explaining that they were in a deadlock. The court asked the foreperson whether she believed there was a reasonable probability that the jury might reach a verdict. The foreperson responded that she believed they could. The jury were sequestered overnight and began deliberating the next morning. Again, after 7 hours and 13 minutes, the trial judge called the jury back into the courtroom and gave them the Prim instruction at 5:12 p.m. The Illinois Supreme Court in Prim directed courts in this State to instruct a deadlocked jury in manner similar to that cited below. There was no objection by counsel to the giving of this instruction. The instruction was given as follows:

“In order to return a verdict it is necessary that each juror agree thereto. Your verdict must be unanimous. It is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement. If you can do so without violence to an individual’s judgment. Each of you must decide the case for yourself but do so openly and partially with the evidence and your fellow jurors.
In the course of your deliberations do not hesitate to re-examine your own views and change your opinion if convinced erroneous. Do not surrender honest conviction or wait [sic] and affect solely because of the opinion of the fellow jurors or the mere purpose of returning a verdict.
You are not participants. You are judges of the facts. Your sole interest is to ascertain the truth from the evidence in the case. Please continue to deliberate.”

The jury retired and deliberated for another 2 hours and 12 minutes before reaching a verdict. Defendant maintains that the trial judge’s conduct had the effect of creating pressure on the jury instead of relieving it.

Defendant admits that the timing of the supplemental instructions is within the trial court’s discretion (People v. Cowan (1985), 105 Ill. 2d 324, 473 N.E.2d 1307), and that the reviewing court must determine whether the language used actually interfered with or coerced the verdict to the prejudice of the defendant. (People v. Branch (1984), 123 Ill. App. 3d 245, 462 N.E.2d 868.) When considering the coercive nature of the instruction, we must scrutinize the time at which the instruction was given and the length of time the jury deliberated after receiving the instruction. People v. Bonds (1980), 87 Ill. App. 3d 805, 410 N.E.2d 228.

In People v. Dungy (1984), 122 Ill. App. 3d 314, 461 N.E.2d 485, the jury deliberated for more than five hours and then retired for the night. The following day, the jury deliberated for another seven hours before sending a note to the court explaining that it was a “hung jury.” The court informed the jury that it was the province of the court to decide whether there was a hung jury. Over defense counsel’s objection, the court gave the Prim instruction to the jury. The jury deliberated an additional 40 minutes before reaching a verdict. (Dungy, 122 Ill. App. 3d at 324, 461 N.E.2d at 492.) The appellate court found that the trial court did not abuse its discretion in giving the Prim instruction. (Dungy, 122 Ill. App. 3d at 324, 461 N.E.2d at 492.) The timing of the giving of the instruction in Dungy is similar to that of the case at bar; therefore, we find that the timing was not coercive to the jury. Moreover, after receiving the Prim instruction, the jury in Dungy deliberated only for an additional 40 minutes, while the jury in the case at bar deliberated for over two hours.

Defendant cites cases which are favorable to the State. In Jenkins v. United States (1965), 380 U.S. 445, 13 L. Ed. 2d 957, 85 S. Ct. 1059, the jury sent a note to the court stating that they could not reach a verdict because of insufficient evidence. The court responded by informing the jury that “[y]ou have got to reach a decision in this case.” (Jenkins, 380 U.S. at 446, 13 L. Ed. 2d at 958, 85 S. Ct. at 1060.) The United States Supreme Court found this coercive. (Jenkins, 380 U.S. at 446, 13 L. Ed. 2d at 958, 85 S. Ct. at 1060.) The court in the present case did not demand a verdict; rather, it warned jurors not to “surrender honest conviction or wait [sic] and affect solely because of the opinion of the fellow jurors or the mere purpose of returning a verdict.” In United States v. Cook (8th Cir. 1981), 663 F.2d 808, also cited by defendant, the Eighth Circuit upheld an instruction even though the court neglected to warn the jurors “not to surrender a conscientiously held belief.” (Cook, 663 F.2d at 810.) We hold that it was not plain error for the trial court to have given the Prim instruction in the manner and at the time in which it did.

For the reasons discussed above, the judgment of the circuit court of Cook County and defendant’s conviction are affirmed.

Affirmed.

MANNING, P.J., and CAMPBELL, J., concur.