text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FINCH PETTIS, Defendant-Appellant.
    Second District
    No. 2—88—0281
    Opinion filed June 22, 1989.

      Will & Briscoe, Ltd., of Waukegan (Thomas A. Briscoe, of counsel), for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

Defendant, Finch Pettis, was convicted of unlawful delivery of 15 or more grams of a controlled substance (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(a)(2)) and was sentenced to a term of six years’ and seven months’ imprisonment. He raises the following contentions on appeal: (1) that the trial court erred by denying his motion to quash arrest and suppress evidence; (2) that the trial court erroneously refused to permit his attorney to ask an accomplice during cross-examination about the potential penalties for the charge dropped by the State in return for his testimony; (3) that the State failed to provide adequate proof of the chain of custody for the cocaine that was admitted into evidence; and (4) that he was not proved guilty beyond a reasonable doubt. We affirm.

Defendant’s conviction resulted from his alleged participation in a sale of cocaine to special agent Robert Ogden of the Lake County Metropolitan Enforcement Group (LCMEG) at a gas station at the comer of 21st Street and Lewis in Zion on October 1, 1987. Ogden met with other LCMEG agents and a confidential source at about 4:30 p.m. on that date in order to formulate plans for the transaction. The confidential source told Ogden that the purchase would be made at the Zion gas station and that Nelson Booker was one of the individuals involved in the transaction.

Ogden and the confidential source arrived at the gas station at about 5:02 p.m. that same day. They met Booker and another man who Booker identified as Tommy Boyd. At the time there were three cars with LCMEG agents in the vicinity conducting surveillance. Agents Jon Story and Robert Koval were in a car parked on Joppa Street, about one block away from the gas station. Agents Nikos Eliopoulos, Mark Padilla, and Curtis Brame were parked about one-half block south of the station. Agent Syndy Nugent and Detective Owen of the Zion police department were in a church parking lot at the southeast corner of 22nd Street and Lewis.

. Booker told Ogden at the gas station that the price for the cocaine would be $1,600. Boyd then stated that he was going to make a telephone call to his source. Boyd returned and told the others that the source would arrive within a short time. The source had not arrived after 20 minutes, so Ogden stated he was hungry and that he had to contact a person throwing a party in southern Lake County in order to tell that person he would be late. He employed this rase in order to notify the other agents that the deal might take longer than expected. Ogden gave Booker and Boyd the number of a pager so they could contact him. Ogden then left the scene and met with some of the other agents.

Ogden and the informant returned to the gas station after the meeting. They received a page, contacted the phone number that appeared on the pager, and spoke to Boyd, who told them he had contacted his source and the source would meet everyone at the station. At about 6:19 p.m., Ogden saw Booker and Boyd walking toward his vehicle. Other agents saw Booker and Boyd arrive in the area in a blue Oldsmobile with two other men. These two men stood near the Oldsmobile while Booker and Boyd approached Ogden’s car.

The two men informed Ogden that the source would not deal with him directly. Instead, the source would park a short distance from the gas station, and Boyd would retrieve the cocaine from the source’s car. Boyd told Ogden that the source would be driving a silver BMW. A little while later, Boyd stated that he saw his man. Ogden looked up and saw a silver BMW turning from Lewis Avenue onto 21st Street. Boyd then said that he had to go meet the man and walked toward the BMW. This occurred at approximately 6:46 p.m.

Defendant was the driver of the silver BMW. He parked the car on Joppa Street, about 30 feet from where Agents Koval and Story were parked. The agents saw a plastic bag containing something white in defendant’s right hand. Defendant reached over toward Boyd and his hand went below the dashboard. The agents then saw the bag in Boyd’s hand. Boyd put it in the left front pocket of his sweatshirt. Boyd did not actually enter the BMW but instead stood outside it and leaned into it.

Boyd then returned to the gas station and sat in the passenger seat of Ogden’s car. Ogden testified that Boyd had been away for about two minutes. Boyd asked Ogden to show him the money and Ogden did so. Boyd then handed Ogden a clear plastic bag which contained a white, powdery, rocky substance. Ogden opened up the plastic bag, smelled the contents, and retied the knot on top of it. He activated a prearranged arrest signal. A few minutes later, some of the other agents appeared and placed Booker and Boyd under arrest. The two men who dropped off Booker and Boyd fled from the scene in the blue Oldsmobile. Agents Story and Koval placed defendant under arrest.

Agent Ogden took the plastic bag to the Zion police department and field-tested the contents. The contents tested positive for the presence of cocaine. Agent Story weighed the substance while it was inside the bag, and the total weight was 29.3 grams. Ogden transported the bag and its contents to the LCMEG evidence locker, where he turned them over to Agent Padilla, the LCMEG evidence officer. The bag was sealed when Ogden turned it over. Ogden identified People’s exhibit No. 1 as the bag and substance given to him by Boyd and stated that, except for certain markings, the bag appeared to be in substantially the same condition as it was when he turned it over to Padilla.

Agent Padilla testified that he and Agent Ogden processed the bag and substance. Both initialed the plastic bag. They then placed it into an evidence bag and sealed it. Padilla, who was the only person with access to the evidence vault, then placed the bag into the vault. He retrieved the bag from the vault on October 19, 1987, and turned it over to Agent Syndy Nugent. The bag was sealed at the time he retrieved it from the vault. Padilla identified People’s exhibit No. 1 as the item he retrieved from the vault on October 19. He testified that with the exception of an opening, a sticker, and a piece of tape, it was in substantially the same condition as when he turned it over to Agent Nugent.

Agent Nugent testified that she received People’s exhibit No. 1 from Agent Padilla on October 19. The package was sealed when she received it. Nugent delivered it to the Northern Illinois Crime Laboratory that same day. With the exception of an opening in the bag made by defendant’s attorney and some notations from the laboratory, Nugent stated that People’s exhibit No. 1 was in substantially the same condition as when she took it to the laboratory.

Michael Johnson, a chemist at the Northern Illinois Crime Laboratory, testified that the lab received People’s exhibit No. 1 on October 19, 1987, although he did not personally receive it. The exhibit was in a sealed condition when Johnson first saw it on October 27, 1987. Johnson slit the evidence envelope open and removed the plastic bag with white powder. He weighed the contents of the plastic bag and determined that they weighed 27.9 grams. Johnson performed a test on the substance and determined that it contained cocaine. He testified that with the exception of the opening made by defense counsel, some tape and some notations, People’s exhibit No. 1 was in the same condition as it was when he received it.

Tommy Boyd testified that Nelson Booker stopped over at his home at about 10:30 a.m. on the morning of October 1, 1987. Boyd had known Booker approximately 10 years. Booker said that he had a friend who wanted to buy an ounce of cocaine, and he wanted Boyd to get the cocaine. Boyd testified that he was not selling drugs at the time but had done so in the past. He initially declined to participate in the deal. When Booker returned about an hour later, Boyd again declined.

Booker went to Boyd’s house a third time that day at about 2:30 p.m., and Boyd agreed to try to help out. Booker set up a meeting with the potential buyer at 4:30 p.m. at the gas station minimart at 21st and Lewis. Booker and Boyd walked over to the gas station at the designated time; Agent Ogden and the informant arrived a few minutes later. After they agreed upon a price for the cocaine, Boyd made several phone calls. He attempted to reach defendant twice, but there was no answer. When Boyd returned, however, he falsely told the others that he had made a connection. The four men waited awhile, and it was then decided that Boyd would go to Waukegan. Ogden stated that he wanted to get something to eat and gave Booker a pager number where he could be reached. A friend of Boyd then drove up in a blue Oldsmobile with a passenger and agreed to drive Boyd to Waukegan.

While the men were driving near defendant’s home, Boyd saw an acquaintance walking around. This man gave Boyd the number of defendant’s pager. Boyd called the number and, shortly thereafter, received a return call from defendant. Boyd then went to meet defendant at the home of defendant’s girlfriend, Cynthia White, in Waukegan.

At first, defendant refused to participate in the transaction. He then changed his mind and agreed to meet Boyd near the corner of 21st and Joppa, about a block from the gas station at 21st and Lewis. Boyd returned to the gas station in the blue Oldsmobile along with Booker and the other two men. The other two individuals parked the Oldsmobile behind the station and remained nearby. Boyd and Booker went over to Ogden and the informant, and Boyd stated that the cocaine was on the way.

After a little while, Boyd saw defendant going east on 21st Street in his silver BMW. Defendant turned on Joppa and parked near the corner of 21st and Joppa. Boyd walked over to defendant’s car and opened the passenger side door. They spoke briefly. Defendant placed the package with the cocaine on the car seat. Boyd picked up the package, placed it in the left pocket of his sweatshirt, and returned to the gas station.

At this point, Boyd got into Agent Ogden’s car and handed Ogden the cocaine. Boyd testified that he was arrested so quickly after handing over the cocaine that he did not have time to get the money from Ogden.

Boyd testified that after he was taken to the Zion police station, he wrote out a confession which implicated defendant. Boyd said he i changed some of the words in the confession because the man taking ' it wanted him to use different words and say some things in other j ways. Boyd admitted that in a meeting with defendant’s attorney, his | own attorney, and the prosecuting attorney about a week prior to trial, he stated that the agents told him what to write in the confession. Boyd also admitted that, during this meeting, he stated that he met defendant at Webster Junior High in Waukegan after speaking to him on the phone on October 1, although he testified at trial that he met defendant at Cynthia White’s home.

According to Boyd, after his arrest, the LCMEG agents told him if he cooperated, his bond would be lowered and he would get out of jail. Boyd then implicated defendant. Boyd stated that, in return for his testimony, he was permitted to plead guilty to a lesser charge. The trial judge refused to permit defendant’s attorney to inquire about the potential range of sentences for the charge that was dropped or the offense to which Boyd pleaded guilty.

Defendant testified that he went to Cynthia White’s home at about 4 p.m. in the afternoon on October 1, 1987. He watched Cynthia’s two children until she returned home at 4:45 p.m. Defendant and Cynthia then went to a bank and a fruit stand. They returned to Cynthia’s home at about 6 p.m. Defendant then received a phone call from Tommy Boyd. Boyd stated that he could pay back $60 defendant had loaned to him. Boyd told defendant to drive up to Zion and park around the corner from the Amoco minimart. Defendant used to live in the area where the minimart was located, and his sister still lived in the area. Defendant parked near the corner of 21st Street and Joppa at about 6:30 p.m. Defendant noticed another car parked nearby and saw one man in the car.

Shortly after defendant parked, Tommy Boyd walked up to the car, opened a door, and got in. Boyd told defendant to hold on a second, and he would be right back with the money. Shortly thereafter, two men from the car parked nearby approached him with guns and placed him under arrest.

Defendant stated that he did not supply Boyd with cocaine on the day in question and never sold cocaine to anyone. Defendant stated that while they were both in jail, he asked why Boyd had implicated him. Boyd said the police told him they would let him off if he implicated defendant. Defendant also testified that Tommy Boyd was not at Cynthia White’s home on October 1. White corroborated defendant’s testimony in this respect.

Melvin Pettis, defendant’s brother, testified that he had a conversation with defendant and Boyd in a hallway outside a courtroom on November 30, 1987. Pettis asked Boyd if he was going to withdraw his prior statement and make a new statement regarding defendant’s involvement in the transaction. Boyd said he was and that he was now going to say defendant went to the scene to pick up $60 he had loaned Boyd. Boyd told Pettis he was now going to say defendant was not involved in the cocaine sale. Pettis testified that he did not suggest this story or the amount of the alleged loan to Boyd.

Tommy Boyd was recalled as a witness by defendant. He acknowledged his conversation with defendant and Melvin Pettis outside a courtroom in November 1987. Boyd testified that during this conversation he said that he owed defendant $60 on October 1, 1987, and called defendant to the scene of the transaction in order to repay him. Boyd also stated during this conversation that defendant had nothing to do with the cocaine sale. Boyd also testified that in a prior conversation with defendant in a holding cell at the jail, they made up the aforementioned story, agreeing that they would claim defendant was near the scene of the drug sale only to recover some money he had loaned to Boyd. According to Boyd, he and defendant had not agreed what amount to use as the figure for this “loan” so Melvin Pettis suggested in the November conversation that they use $60.

The jury found defendant guilty of unlawful delivery of 15 or more grams of a controlled substance. The trial court denied defendant’s post-trial motion, and defendant now appeals.

Defendant’s initial contention on appeal is that the trial court erred by denying the motion to quash his arrest and suppress evidence. The only evidence which defendant sought to have suppressed in the motion was the cocaine itself. Defendant stated in the motion that the cocaine was a fruit of his purportedly illegal arrest.

Evidence must be excluded under the “fruit of the poisonous tree” doctrine if it was discovered by exploitation of illegal police conduct. (Wong Sun v. United States (1963), 371 U.S. 471, 488, 9 L. Ed. 2d 441, 455, 83 S. Ct. 407, 417; People v. Vought (1988), 174 Ill. App. 3d 563, 571.) If defendant establishes a causal connection between the primary illegality and the alleged fruits of the illegality, the State has the burden of demonstrating by clear and convincing evidence that the challenged evidence was obtained by means sufficiently distinguishable to be purged of the primary taint. (Vought, 174 Ill. App. 3d at 573.) In the case at bar, however, defendant has failed to show any causal connection between his arrest and the co-' caine seizure.

In determining whether the trial court’s ruling on a motion ¡ to suppress was correct, we may consider evidence presented at trial. (People v. Scudder (1988), 175 Ill. App. 3d 798, 801; People v. Bradney (1988), 170 Ill. App. 3d 839, 845.) The evidence from the suppression hearing indicates that no cocaine was seized from defendant or his car following his arrest. It is clear from the trial testimony that Tommy Boyd handed the package with cocaine to Agent Ogden voluntarily and that there was no causal connection between the procurement of the cocaine by the State and defendant’s subsequent arrest. Within the context of a criminal case, the only remedy for an illegal arrest is the exclusion of evidence resulting from the arrest. (United States v. Radford (7th Cir. 1971), 452 F.2d 332, 334.) At the suppression hearing, defendant testified that nothing was seized from him following his arrest and that the only items seized from his car were a few baseball caps. These caps were not introduced into evidence at trial. Even if we assume arguendo that defendant was illegally arrested, an illegal arrest is of no consequence when, as here, the police obtain no evidence as a result of the arrest. Radford, 452 F.2d at 334.

Defendant next contends that the trial court’s refusal to permit his attorney to question Tommy Boyd concerning the potential sentences for the charge which the State dropped in exchange for his testimony and the charge to which defendant pleaded guilty constituted a denial of his sixth amendment right to confront witnesses. This argument has been consistently rejected by Illinois courts in cases involving accomplices who agree to testify in return for a reduction in the charges against them. (See People v. Roy (1988), 172 Ill. App. 3d 16, 24-25; People v. Portis (1986), 147 Ill. App. 3d 917, 927; People v. Gibson (1983), 117 Ill. App. 3d 270, 282; People v. Lake (1978), 61 Ill. App. 3d 428, 431-32.) Defendant relies largely upon Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105, a case in which the United States Supreme Court held that the trial court’s failure to permit a defendant to cross-examine a witness concerning his juvenile probationary status violated his sixth amendment right of confrontation. 415 U.S. at 318, 39 L. Ed. 2d at 355, 94 S. Ct. at 1111.

As the court noted in Lake, the ruling of the trial court in Davis effectively shielded the potential bias of the witness from the jury. (61 111. App. 3d at 431.) The trial court’s ruling in Lake did not have that effect since it only prevented defendant from bringing out the range of sentences for the dropped charge and the charge to which the accomplice pleaded guilty. Defendant was still permitted to expose the potential bias of the witness by eliciting the fact that the State allowed him to plead guilty to a less serious offense and had given him a good deal in exchange for his testimony. 61 Ill. App. 3d at 430.

In Lake and in the subsequent cases adopting that holding, the rationale behind the limitation imposed upon cross-examination was that it prevented disclosure of the potential penalties facing defendant. (61 Ill. App. 3d at 431.) In the case at bar, the trial judge was motivated by the same concern. Since the trial judge allowed defendant to bring out Boyd’s potential bias by eliciting the fact that the State allowed him to plead guilty to a lesser charge in exchange for his testimony, the limitation on defendant’s cross-examination was not error. It should also be noted that the trial court’s ruling did not prevent defendant from inquiring even further than he did as to the details of the plea agreement between Boyd and the State.

Defendant next argues that the trial court erred by permitting the State to introduce the plastic bag containing cocaine into evidence because the State failed to establish a sufficient chain of custody. In making this contention, defendant emphasizes that no explanation was provided as to what was done with this evidence between the time it was delivered to the crime laboratory on October 19, 1987, and October 27, 1987, the day Michael Johnson tested the contents; that the bag weighed 29.3 grams when it was weighed after his arrest, but the contents only weighed 27.9 grams when Johnson weighed them; and that the day after the bag was ripped in court by defendant’s attorney, it was returned to court in a sealed condition.

If an item cannot be readily identified or is susceptible to alteration by tampering or contamination, its chain of custody must be established with sufficient completeness to render it improbable that the item has been contaminated, exchanged, or subjected to tampering. (People v. Hominick (1988), 177 Ill. App. 3d 18, 29.) The State is not required to exclude all possibility of tampering in order to establish a proper chain of custody but needs only to demonstrate that the exhibit has not been changed in any important respect (Hominick, 177 Ill. App. 3d at 29) and that it took reasonably protective measures since the substance was seized. (People v. Hermann (1988), 180 Ill. App. 3d 939, 944.) Unless defendant produces actual evidence of tampering, substitution, or contamination, the State need only establish a probability that the above did not occur, and any deficiencies go to the weight rather than the admissibility of the evidence. (Hominick, 177 Ill. App. 3d at 29.) If one link in the chain is missing, but there is testimony describing the condition of the evidence when delivered which matches the description of the evidence when examined, the evidence is sufficient to establish a chain of custody. People v. Irpino (1984), 122 Ill. App. 3d 767, 775.

Defendant correctly maintains that there is a missing link in the chain because there was no testimony concerning what happened to the exhibit from the time Agent Nugent delivered it to the crime laboratory on October 19, 1987, until the time chemist Michael Johnson examined it eight days later. At trial, however, Nugent testified that the exhibit was in substantially the same condition as when she took it to the laboratory, except for some notations on the bag and an opening made by defendant’s attorney. Michael Johnson testified that the exhibit was in substantially the same condition as it was when he examined it except for some notations and tape on the bag and" the opening. Since there is testimony describing the condition of the exhibit when delivered by Nugent which matches the description of the exhibit when it was later examined by Johnson, the evidence is sufficient to establish chain of custody under the holding in Irpino.

Defendant argues that there was evidence of tampering because of the 1.4-gram discrepancy in the weight of the exhibit the first and second times it was weighed and because the exhibit reappeared in court in a sealed condition the day after his attorney ripped open the bag in court. When Agent Story weighed the cocaine, he weighed it while it was inside the plastic bag. Michael Johnson weighed only the contents of the bag, the cocaine itself. Johnson testified that the plastic bag alone could have weighed as much as 1.5 grams. This, in addition to the small amounts of the substance used in the tests performed by Story and Johnson, would account for the weight discrepancy. While defendant states further that the evidence may have been susceptible to tampering because of its reappearance in a sealed condition the day after defendant’s attorney tore the bag, there is no actual evidence of tampering or alteration. Such speculative assertions are insufficient to support a claim of tampering. (People v. Hermann (1988), 180 Ill. App. 3d 939, 945.) We will not interfere with the trial court’s discretion concerning the admission of physical evidence at trial absent an abuse of that discretion. (Hominick, 177 Ill. App. 3d at 29.) No such abuse of discretion occurred here.

Defendant’s final contention is that the trial evidence was insufficient to support a conviction beyond a reasonable doubt. When a reviewing court is presented with a challenge to the sufficiency of the evidence, the relevant question is, after viewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; People v. Collins (1985), 106 Ill. 2d 237, 261.) We recognize that the testimony of Tommy Boyd, an accomplice, was an important part of the prosecution’s case. Although the testimony of an accomplice should be viewed with suspicion, it may be sufficient to sustain a conviction, even in the absence of corroboration. (People v. Jimerson (1989), 127 Ill. 2d 12, 44.) Since accomplice testimony carries with it potential weaknesses, such as promises of leniency or malice toward the witness, it must be carefully scrutinized on appeal and should not be accepted unless it carries with it an absolute conviction of truth. People v. Gnat (1988), 166 Ill. App. 3d 107,110.

In Gnat, this court reversed defendant’s conviction of unlawful delivery of cocaine because it was based on the uncorroborated testimony of an accomplice who had been offered leniency by the State, was an admitted drug user, and who originally denied in his testimony that he had been offered leniency, though he later recanted. (Gnat, 166 Ill. App. 3d at 110-12.) This court stated that with the exception of the accomplice’s testimony, there was no evidence tying defendant to the drugs. (166 Ill. App. 3d at 111.) We also emphasized that while the testimony of some undercover agents corroborated the accomplice’s testimony with respect to certain details and certain events surrounding the crime, it did not corroborate his testimony that defendant was a participant in the offense. 166 Ill. App. 3d at 111-12.

Here, the testimony of Agents Koval and Story tied defendant to the cocaine and corroborated Boyd’s testimony that defendant delivered the cocaine to him. The agents saw defendant’s car park about a block away from the site of the drug transaction. Boyd then walked over to the car and spoke to defendant. The agents saw a plastic bag containing something white in defendant’s hand. After defendant’s hand disappeared under the dashboard, they saw the bag in Boyd’s hand. Boyd put the bag in his sweatshirt pocket, walked over to Agent Ogden’s car and made the cocaine delivery. By contrast, in Gnat, the accomplice told the undercover agent he had to meet “his guy Paul” in a bowling alley. Other undercover agents saw the accomplice speak to defendant in the bowling alley shortly before the accomplice delivered the cocaine to the agent posing as a buyer. None of the agents saw anything change hands between defendant and the accomplice. 166 Ill. App. 3d at 111.

While Boyd’s status as an accomplice and his prior, inconsistent statements concerning the events surrounding the crime lead us to view his testimony with great suspicion, we are satisfied that the evidence was sufficient to sustain defendant’s conviction beyond a reasonable doubt due to the corroborative testimony of Agents Story and Koval. Accordingly, we affirm the judgment of the circuit court of Lake County.

Affirmed.

REINHARD and McLAREN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE LORENZ

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HENRY BRAGGS, Defendant-Appellant.
    First District (5th Division)
    No. 1—86—0823
    Opinion filed December 30, 1988.
    — Modified opinion filed February 10, 1989.
    — Rehearing denied July 25, 1989.

      Randolph Stone, Public Defender, of Chicago (Linda J. Deeley, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Thomas V. Gainer, Jr., and Lynda A. Peters, Assistant State’s Attorneys, and Jean T. McGuire Quinn, Special Assistant State’s Attorney, of counsel), for the People.
   PRESIDING JUSTICE LORENZ

delivered the opinion of the court:

This appeal follows defendant’s convictions, after a jury trial, on counts of aggravated sexual assault, criminal sexual assault, and unlawful restraint for which defendant received a sentence of 12 years’ imprisonment.

We reverse and remand for a new trial.

We summarize below the pertinent testimony adduced at trial.

Complainant Linda Jones testified that on June 11, 1985, at approximately 12:15 p.m., she and her friend Ray accepted an automobile ride from defendant, who offered to drive Ray to class at Olive-Harvey College in Chicago. Vance Jackson was also a passenger in defendant’s car. Jones stated that before reaching the college, defendant stopped at a liquor store to purchase gin and beer. Jones admitted drinking “a cup of beer.” After taking Ray to the college, defendant drove to Jones’ aunt’s house at 95th and Jeffrey Streets to visit Jones’ sister, whom defendant also knew. Jones stated that after visiting with Jones’ sister and aunt for some time, Jones accompanied defendant to a liquor store where defendant bought more beer. Jones, defendant, and Jackson drank the beer.

At approximately 6:30 or 7 p.m., Jones, defendant, and Jackson left and went to look for Jones’ other sister at 811 West 68th Street. However, they first proceeded to Jones’ apartment so that Jones could change her pants, which were wet from rain. On the way, they saw defendant’s mother, with whom Jones was acquainted, and talked with her for a few minutes. They proceeded on to Jones’ apartment, where Jones changed her pants.

Jones testified that on the way to 811 West 68th Street, defendant took Jackson home. Jones stated that they arrived at the address, she left the car and approached the house, but found that her sister was not present. Jones stated she began walking home. On the way, she again encountered defendant as he was coming out of a liquor store. Jones accepted defendant’s offer of a ride home.

Jones testified that she let defendant into her apartment and went to the bathroom. She stated that when she came out of the bathroom defendant grabbed her from behind, physically picked her up and threw her down on her bed, straddled her, and began to choke her while forcibly removing her clothing. Jones testified that defendant slapped her and, when she began to scream, told her, “Shut up, bitch.” Jones stated that defendant pulled his pants down to his thighs, put his penis inside her vagina and stayed on top of her for about 30 minutes, ejaculating three times. Defendant removed his penis from her vagina, pulled Jones’ head, by the hair, toward his penis, and forced defendant to orally copulate him. Jones stated that she got up, told defendant she wanted to use the bathroom, got her robe, and attempted to escape through the front door of the apartment. Jones opened the door and called for help, but defendant pulled her back into the apartment.

Darrell Williams, a neighbor of Jones, testified that he heard Jones yell for help, went to Jones’ apartment, and knocked on the door. When the door opened, he was able to pull Jones out. The police soon arrived and arrested defendant.

Ricco Burts, who lived in the apartment next to Jones, also testified that he was home with his girlfriend and heard Jones crying and pleading with defendant. Burts stated that he instructed his girlfriend to notify police and went to investigate. When he went into the hall, he saw Darrell Williams helping Jones out of her apartment.

Dr. Jerry Noble testified that he examined Jones at St. Bernard's Hospital. Noble stated that Jones had bruises on her right eyelid, the tip of her nose, and on the left side of her neck. Jones also had dried blood on the tip of her nose and had suffered a scratch on her right breast as well as cuts to the fingers of her right hand. Noble performed a vaginal examination and found signs of bruising. Beyond the physical examination, Noble testified that Jones appeared agitated, hysterical, and depressed.

Vance Jackson testified on behalf of defendant. Jackson stated that after defendant picked up Jones and her friend in the early afternoon of June 11, 1985, defendant, acting on Jones’ request, drove them to a building at 6531 South Lowe Street where she bought some marijuana. Jackson stated they next stopped at a liquor store where they purchased two 40-ounce bottles of beer which they drank on the way to Olive-Harvey College. After taking Jones’ friend to the college, the three proceeded to Jones’ grandmother’s house. There they drank beer and smoked marijuana. At some point, the three returned to the liquor store to purchase a six-pack of beer. Eventually, they left the house and went to Jones’ apartment, where she changed her pants. On the way, they had stopped to buy another six-pack of beer. Jackson stated that, during the drive, he had asked Jones for sex but she declined, saying she was menstruating. After leaving Jones’ apartment, they stopped at 59th and Princeton Streets to pick up defendant’s mother. Defendant then drove to another liquor store. Jackson testified Jones bought another 40-ounce bottle of beer. Defendant drove his mother home and then drove around the block while they finished drinking the beer. Jackson stated defendant took him home.

During cross-examination, the following exchange took place:

“Q. [Assistant State’s Attorney]: Let me ask you this, Mr. Jackson. Were you present when the defendant’s mother offered the victim $500 to drop the charges?
[Defendant’s Counsel]: Objection, Judge.
THE COURT: Objection sustained.
[Defendant’s Counsel]: Move for a mistrial.
THE COURT: Overruled.
Q. [Assistant State’s Attorney]: Were you present at any time when the defendant’s mother talked to Linda Jones?
A. [Jackson]: I don’t know anything about it.
[Assistant State’s Attorney]: Judge, I don’t have any other questions.
[Defendant’s Counsel]: We have no questions. The defense rests.”

At the conclusion of Jackson’s testimony, a short recess was taken during which time defendant’s counsel again moved for mistrial based on the inquiry concerning a bribe. That motion was denied. Defendant’s counsel then requested leave of court to “reopen” the question of a mistrial based on the improper conduct of the assistant State’s Attorney, arguing that the jury would not be able to disregard the question to the prejudice of defendant. The trial judge also denied that request, stating that he believed the question had no effect on the jury. Defendant was eventually convicted.

Opinion

On appeal, defendant raises 10 separate issues as bases for reversal. However, we need here address only defendant’s contention that it was error for the State to insinuate to the jury that defendant’s mother had tried to bribe the complainant to forgo prosecution of defendant, because we conclude that reason is sufficient to require retrial.

Illinois courts have long recognized the error present when the State, on cross-examination, asks a defense witness questions, presuming facts not in evidence, as a precursor to impeachment of that witness, in the absence of rebuttal evidence to substantiate the inquiry. (People v. Rivera (1986), 145 Ill. App. 3d 609, 619, 495 N.E.2d 1088, 1095.) The danger inherent in such situations being that the jury will ignore any denial, presume the accuracy of the questions’ insinuation or innuendo, and substitute that presumption for proof. (Rivera, 145 Ill. App. 3d at 619, 495 N.E.2d at 1095.) For reasons which follow, we believe such a situation was present below and inevitably contributed to defendant’s conviction.

The State contends any error resulting from the State’s question was harmless because there was no response to the question as defendant’s objection was immediately sustained and, therefore, evidence rebutting the insinuation was unnecessary since there was nothing to rebut. The State also argues that the question does not form a basis for reversal because the insinuation was ambiguous, thus not prejudicial, and, further, that the question’s purpose was only to establish Jackson’s bias. Lastly, the State maintains that overwhelming evidence of guilt minimized any prejudicial effect of the question.

We do not find merit in any of the above contentions. First, the State’s assertion that Jackson made no response to the question is simply an inaccurate representation of the record. As set out above, in response to the assistant State’s Attorney’s second question related to the purported conversation between defendant’s mother and complainant, Jackson replied, “I don’t know anything about it.” No immediately sustained objection followed that question. Jackson’s denial cannot be ignored. The State’s failure to present evidence thereafter to rebut the denial created the type of insinuation Illinois courts have long sought to guard against.

Further, we are not persuaded that the resulting insinuation was ambiguous or that the question merely pertained to Jackson’s bias. A careful reading of the formulation of the initial question put to Jackson specifically implies, as fact, that defendant’s mother offered complainant the $500 bribe; the actual inquiry being only whether or not Jackson was present at that time. The second formulation of the question, while not specific to the purported bribe, similarly inquires of Jackson only whether he was present during any time when defendant’s mother talked to complainant. We conclude the effect of these questions was to establish, by insinuation, that a conversation concerning the bribe had in fact taken place, notwithstanding the State’s claim that the question’s intended purpose was to elicit Jackson’s bias. We view that questioning as highly improper in the absence of rebuttal evidence to support the resulting insinuation. And, because of the nature of the questioning, we are not persuaded that the insinuation can be considered harmless.

However, we otherwise conclude, without making any finding as to defendant’s guilt or innocence, that the evidence at trial was sufficient for the trier of fact to find defendant guilty beyond a reasonable doubt such that the risk of subjecting defendant to double jeopardy in a new trial is removed. (See People v. Littlejohn (1986), 144 Ill. App. 3d 813, 828, 494 N.E.2d 677, 687.) We therefore reverse defendant’s conviction and remand the cause to the circuit court for retrial.

Reversed and remanded.

PINCHAM and MURRAY, JJ., concur.


author: JUSTICE CAMPBELL

text:
    ROGER LEE HEATH, Plaintiff-Appellant, v. ELIAS R. ZENKICH et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—88—478
    Opinion filed March 20, 1989.
    — Rehearing denied July 17, 1989.

      Gomer W. Walters and Joseph A. Grear, both of Haight & Hofeldt, of Chicago, for appellant.
    Richard S. Phillips and John S. Mortimer, both of Wood, Dalton, Phillips, Mason & Rowe, of Chicago, for appellees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Roger Lee Heath, appeals the judgment of the trial court which held that the benefits of the inventorship of the BI-PAK 2 and BI-PAD belong to defendant, Elias R. Zenkich, owner of codefendant Zenex Corporation. Heath seeks reversal of the judgment as well as a declaration that he is the inventor of the BI-PAK 2 and BI-PAD devices and entitled to the respective patent applications which had been filed by defendants and any patents issued or issuing from those applications. The sole issue on appeal is whether the trial court properly determined that Zenkich, not Heath, first conceived the inventions and, thus, is entitled to the benefits of inventorship. For the following reasons, we affirm the judgment of the trial court.

The record indicates that in the early 1970’s, Zenco Engineering Corporation, a predecessor corporation to Zenex, hired Heath as a machinist. During Heath’s affiliation with Zenex, the BI-PAK 2 and the BI-PAD were developed. The BI-PAK 2 is a device which permits defibrillation of a patient during physiological monitoring by using one pair of preapplied and preconnected electrodes for both defibrillation and physiological monitoring. The BI-PAD is a grounding pad for use during electrosurgical procedures. Both the BI-PAK 2 and the BI-PAD were subsequently manufactured and sold by Zenex. The patent application for the BI-PAD was filed on December 20, 1976, and the application for the BI-PAK 2 was filed on February 27, 1978. Both applications named Zenkich as inventor. At Zenkich’s request, Heath assisted Zenkich’s patent attorney in the preparation of both patent applications. Heath claimed that he did not file patent applications in his own name because he believed that the applications had been filed in Zenkich’s name, the BI-PAK 2 and BI-PAD had been on sale for more than one year and pursuant to 35 U.S.C. section 102(b) (1976), he was barred from filing applications for letters patent in his own name. When Heath asked Zenkich to file an affidavit with the Patent and Trademark Office to correct the name of the inventor on the applications or to at least name him as a joint inventor, Zenkich refused, stating he believed himself to be the sole inventor of the two devices.

As a result, Heath filed his complaint in the circuit court of Cook County seeking equitable and declaratory relief. Count I sought an order compelling Zenkich “to file appropriate documentation in the United States Patent and Trademark Office setting forth the facts regarding inventorship, as found by [the circuit court]” for the BI-PAD device. Count II sought a similar order for the BI-PAK 2 device. Count III sought a declaratory judgment that Heath was either the sole inventor or a joint inventor of the two devices and also sought a declaration as to Heath’s ownership rights in the two patent applications, the inventions and the patents which may issue. Count IV sought an order compelling Zenex and Zenkich to execute documentation necessary to vest in Heath the ownership rights to the inventions, patent applications and the patents which may issue. Zenex and Zenkich moved to dismiss the complaint for failure to state a claim upon which relief may be granted and for lack of subject matter jurisdiction. The circuit court dismissed counts I and II for failure to state a claim upon which relief can be granted, dismissed count III for both failure to state a claim upon which relief can be granted and for lack of subject matter jurisdiction, and dismissed count IV for lack of subject matter jurisdiction. Heath appealed, and in Heath v. Zenkich (1982), 107 Ill. App. 3d 207, 437 N.E.2d 675, this court reversed the trial court and remanded the cause for further proceedings on the grounds that the trial court had improperly declined to exercise jurisdiction over counts III and IV, count III was a proper subject for declaratory judgment, and counts I and II sought remedies for the alleged violation of Heath’s ownership rights in the two inventions.

When trial commenced in October 1987, Scott Saulters, former Zenex employee who worked directly under Heath’s direction, testified that the BI-PAK 2 was developed by Heath from an idea Saulters had suggested to Heath after watching a television program entitled “Space 1999.” From the television program, Saulters got the idea that the same electrodes could be used to both monitor and to defibrillate the heart. Saulters identified several drawings and sketches of the BI-PAK 2, including one that was dated June 22, 1976, and initialled by Heath, as well as a more detailed drawing of the BI-PAK 2, signed by Heath and witnessed by Saulters at Heath’s request on October 8, 1976. However, Saulters admitted that he had never seen Heath actually draw any of the sketches and drawings and had not been privy to all of the conversations between Heath and Zenkich. In addition, Saulters identified a prototype of the BI-PAK 2 which had allegedly been prepared by Heath in December 1976. Saulters admitted that all of the work on the prototype had not been done in his presence.

Next, the evidence deposition of Dr. Alon Winnie, professor and chairman of the department of anesthesia at the University of Illinois Medical Center, was introduced into evidence. Dr. Winnie stated that in late 1976, on his first visit to Zenex, Heath had shown him the BI-PAK 2 on which he was working. According to Dr. Winnie, Heath had made the prototype and Zenkich had referred to the device as Heath’s “toy.”

Zenkich then testified as an adverse witness and stated that the first BI-PAK 2 was constructed in the early 1970’s and the BI-PAD was first built in the “early 70’s, 3, 4, 5.”

Next, Heath testified that he had invented both the BI-PAK 2 and BI-PAD and proceeded to describe in detail the functions of each. Heath then identified and discussed several exhibits which were introduced into evidence: (1) sales handout, entitled “Electrosurgically Speaking,” dated December 8, 1975, and describing the TERRAPAD, the former name for the BI-PAD, “by Roger Lee Heath”; (2) sales handout, entitled “Electrosurgically Speaking,” dated December 8, 1975, and also describing the TERRAPAD “by Roger Lee Heath”; (3) drawing of a defibrillator with a cord running from the defibrillator to electrodes which attach to the patient, dated June 22, 1976, and initialled by Heath; (4) drawing of the BI-PAK 2, witnessed by Saulters on October 8, 1976, and signed by Heath; (5) prototype of the BI-PAK 2 built by Heath; (6) sales handout, entitled “Layout BI-PAK 2,” dated February 17, 1977, and stating “by Roger Lee Heath”; and (7) preliminary layout of the BI-PAK 2, dated February 17, 1977, stating “by Roger Lee Heath.”

On cross-examination, Heath stated that Zenkich had prepared some of the drawings of parts for the BI-PAD which were used by outside sources to produce the parts. The parts were then shipped back to Zenex, where the products were assembled. Heath claimed that Zenkich had nothing to do with the assembly of the BI-PAK 2 prototype. In fact, Heath stated that he did not even believe Zenkich was aware that he was building a prototype. Heath further stated that he had told Saulters and others that he had invented the BI-PAK 2 and BI-PAD, but neglected to tell the patent attorney when he worked with him on the patent applications.

Heath then rested his case and Zenkich testified on his own behalf, stating that he is the sole owner of Zenex, which manufactures medical products in the patient monitoring field which are sold to hospitals, doctors, clinics and paramedics. Zenex was formerly known as Zenco Engineering Co. and Medizenco. Zenkich indicated that there were no formal procedures regarding the development of new products at Zenex “because I didn’t deem it necessary to have it since it’s a small company, my own company, I thought I could do as I see fit to my company and my employees and everybody else to do what’s necessary to be done.” Moreover, there were no locked cabinets. All sketches and drawings were accessible to anyone.

Regarding the BI-PAD, Zenkich stated that he had invented it. He made the sketches and instructed his employees, including Heath, as to what to do. Zenkich explained that the BI-PAD was the result of many years of visiting hospitals and discussing monitoring needs with doctors. He further claimed that he “did really everything from A to Z, except some things which the service department made switching in our production. They cut with scissors, cut the shape or something. I would make sketches and ask them to do this and do that, and that’s how it happens.” When asked if he had kept any sketches, Zenkich stated that he had kept only “menial sketches” because “it’s a very simple product, nothing electronic about it. There’s no T.V., tubes or chips or anything. It’s a plain switch, microswitch with two wires and two plates. It’s nothing complex.” Zenkich further stated that, “Everything was prepared and done at my direction in my own business.” Zenkich denied that Heath had suggested the BI-PAD.

Regarding the BI-PAK 2, Zenkich testified that it was born out of necessity and invented under his direction. He further stated, “That was a weekly discussion, so I don’t know when was really whole thing, how was the BI-PAK physically developed, who put it together. Many people in my employment put it together. One person made box and switches, the other person did wiring. I don’t know[,] Scott [Saulters] or Roger [Heath] did wiring. I personally did some wiring myself.” Zenkich further claimed that he had made all the sketches and drawings, but did not know if any of them had been kept. With respect to the advertising sales sheets, Zenkich testified that they were written by Heath at his request.

On cross-examination, Zenkich stated that Heath “was employed to do anything which I seen [sic] fit [for him] to do,” as were all of his employees. Zenkich further claimed that the BI-PAD was “in his mind” as early as 1974, 1975 or 1976. However, he had no physical evidence to corroborate his testimony because the files had been removed from his premises. In addition, Zenkich could not remember to whom he first disclosed either the BI-PAK 2 or the BI-PAD.

The parties concur that the sole issue before this court is whether the trial court erred in its determination that Zenkich conceived the inventions and that the benefits of the inventorship of the BI-PAK 2 and the BI-PAD belong to Zenkich. Although Heath’s claims for declaratory and equitable relief are controlled by Illinois law (Heath v. Zenkich (1982), 107 Ill. App. 3d 207, 437 N.E.2d 675), his theory of the case, i.e., conception of inventions, necessitates that Federal patent law be incorporated to a limited extent, particularly with respect to the burden of proof. (See GAF Corp. v. Amchem Products, Inc. (E.D. Pa. 1981), 514 F. Supp. 943.) The underlying factual allegation to Heath’s complaint is that he invented the BI-PAK 2 and the BI-PAD and any claims of inventorship by Zenkich are invalid. Because Zenkich’s patent applications for the BI-PAK 2 and the BI-PAD were filed first, Zenkich would be considered the “senior party” in a Federal patent action, and Heath, as the “junior party,” would have the burden of proving priority of conception by a preponderance of the evidence. (See Rex Chainbelt, Inc. v. Borg-Warner Corp. (7th Cir. 1973), 477 F.2d 481.) For the reasons stated, we find that preponderance of the evidence is the burden of proof applicable to the present case.

Prior to addressing the issue of priority of conception, a preliminary question is whether Heath’s skill inures to the benefit of Zenex, as Heath’s employer. If it does, then the issue of priority of conception is irrelevant. As a general rule, an employer who hires or engages someone for consideration to devote his time to developing a product becomes the owner of that property which is developed and of any invention incident to it. (Lion Manufacturing Corp. v. Chicago Flexible Shaft Co. (7th Cir. 1939), 106 F.2d 930.) However, to claim the benefit of an employee’s skill so as to obtain a patent in the employer’s name, the employer must have had more in mind than a desired result. The employer must show that he had an idea of the means to accomplish the particular result and that he communicated that means in such detail to the employee that the employee was able to develop the idea into a practical form. Barnet v. Wied (C.C.P.A. 1952), 195 F.2d 311.

Heath contends that he was not an employee of Zenex; rather, he was an independent contractor who worked as director of the Zenex biomedical engineering department. In support of his argument, Heath testified that his department was physically located in a separate area within the main building and that he kept a detailed expense report for his department which indicated that he had paid Saulters’ salary as well as other department expenses out of his own profits.

In contradiction to Heath’s position, Zenkich testified that Heath was an employee on the payroll “from the day he begun [sic] to the day he left.” Zenkich introduced evidence to show that deductions had been made for Federal and State withholding taxes and for social security. In addition to his regular salary, Heath also earned commissions and participated in the profits of the company. Zenkich further explained that everything was done on an expense basis at that time, which explains Heath’s expense reports for his department. The expense reports itemized all income and expenses to the department, and any profit was split 50/50 between Zenex and Heath. This 50/50 split constituted Heath’s profit sharing. In our view, the evidence supports the conclusion that Heath was an employee of Zenex, not an independent contractor.

Having determined that Heath was an employee of Zenex, the next issue to be decided is whether Heath was hired “to devote his time to developing a product” so that, pursuant to the general rule enunciated in Lion Manufacturing Co., Zenex becomes “the owner of that product or any invention incident to it.” Although it is undisputed that Heath was not hired by Zenex specifically to invent or to provide design engineering services, neither was he hired by Zenex to act as a service representative, sales person or advertising copywriter. Yet, Heath worked in all of these capacities, Zenex is a small corporation, which at the time the BI-PAK 2 and BI-PAD were invented, employed approximately 11 people, including clerical and accounting. As indicated by the testimony of Heath, Saulters and Zenkich, it was standard practice for there to be an overlap of job functions at Zenex. In that regard, Zenkich testified that his employees were hired to do anything he saw fit for them to do and that everything was prepared and done at his direction. Based on the fact that product development was one of several areas in which Heath worked at Zenex, we find that the general rule enunciated in Lion Manufacturing Co. is applicable to the circumstances of the case at bar, provided that Zenkich has shown that he knew how to produce the product of his conception and had communicated that knowledge to Heath. . .

Regarding this prerequisite to application of the general rule, Heath contends that the ideas for the BI-PAK 2 and the BI-PAD and the development of the devices were his alone. Zenkich disputes this contention and claims that all of the ideas were his and that he had discussed the development of the devices with Heath. In reviewing this conflicting testimony, we are cognizant of the rule that in a bench trial, it is within the province of the trial court to determine the credibility and weight of the testimony in resolving any inconsistencies or conflicts and to render its decision accordingly. (Silas v. Robinson (1985), 131 Ill. App. 3d 1058, 477 N.E.2d 4.) Further, the appellate court cannot substitute its opinion for that of the trier of fact unless the holding is contrary to the manifest weight of the evidence. Scheduling Corp. of America v. Massello (1987), 151 Ill. App. 3d 565, 503 N.E.2d 806.

At trial, Heath introduced numerous exhibits which consisted of drawings and sketches of the BI-PAK 2 and the BI-PAD, some of which were dated and initialled. Saulters testified as to having seen some of these sketches and, at Heath’s request, had even witnessed one of them. In addition, Dr. Winnie stated in his evidence deposition that Heath had made the BI-PAK 2 prototype and that Zenkich had referred to the BI-PAK 2 as Heath’s “toy.” In our view, this evidence does not establish Heath’s priority of conception of the BI-PAK 2 and the BI-PAD for several reasons. Although Saulters had seen the sketches and drawings introduced by Heath, he testified that he had not actually seen Heath draw any of them, including the one that he had witnessed. Further, Saulters admitted that he was not privy to all of the conversations between Zenkich and Heath. Thus, even if Saulters had seen Heath draw the sketches and assemble the prototype, he would have no personal knowledge as to whether Heath was acting under Zenkich’s direction or on his own volition. With respect tó Dr. Winnie’s testimony, in our view it is evidence of nothing more than that Heath worked on the BI-PAK 2 prototype. It is not evidence that Heath had conceived the invention. In addition, regarding the patent applications for the BI-PAK 2 and the BI-PAD, Heath testified that he assumed the application would name him as inventor, thus he never told the patent attorney that they were his inventions. We find this assumption inconsistent with Heath’s alleged earlier efforts to have sketches initialled, dated and witnessed. If, in late 1976, Heath had believed it was necessary to protect the originality of his inventions from Zenkich, it is incredible that he would simply assume he would be named as inventor on the patent applications for these inventions which were later prepared by an attorney hired by Zenkich.

Heath places great emphasis on the fact that Zenkich did not present any corroborating evidence at trial to support his claim of priority of conception. In light of the fact that Heath had the burden of proving his claim by a preponderance of the evidence (Rex Chainbelt, Inc. v. Borg-Warner Corp. (7th Cir. 1973), 477 F.2d 481), and the evidence he introduced was not persuasive of his own claim, we do not find Zenkich’s lack of corroborating evidence to be grounds for reversal. Without corroborating evidence from either party, the determining factor becomes the credibility of the witnesses, which, as stated, is within the province of the trier of fact. At trial, Zenkich testified that he has been the sole owner of Zenex and its predecessor companies for 25 years. Originally, Zenkich invented, manufactured and sold his products himself. As the company grew, he hired others to manufacture and sell his inventions. As stated, Zenex was a small company where all plans, drawings and sketches of new products were accessible to all of the employees. Zenkich stated that it was not the company policy to maintain documents indicating when an idea had been conceived because all of the original ideas were his. He would then prepare drawings and sketches from which his employees would produce the product. Regarding the BI-PAK 2 prototype allegedly built by Heath, Zenkich stated that several individuals had made models of the BI-PAK 2 out of different materials. Heath’s model was just one of them.

Based upon our review of the record, we find that the circuit court’s determination was not against the manifest weight of the evidence and that it properly determined that, the benefits of the inventorship of the BI-PAK 2 and the BI-PAD belong to Zenkich. Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

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


author: JUSTICE RIZZI

text:
    MARJORIE RESTAINO, Plaintiff-Appellant, v. MONTGOMERY WARD AND COMPANY, Defendant-Appellee.
    First District (3rd Division)
    No. 1—87—1893
    Opinion filed April 26, 1989.
    — Rehearing denied July 17, 1989.

      B. John Mix, Jr., of Chicago, for appellant.
    Dalton P. Grief, of West Chicago, for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff-appellant, Marjorie Restaino, appeals from a judgment of the circuit court of Cook County awarding her $39,725.25 in damages against defendant-appellee, Montgomery Ward & Company (Ward). On appeal, Restaino argues that the trial court erred in (1) instructing the jury on assumption of risk and in denying her post-trial motion with respect to assumption of risk; (2) denying her petition for attorney fees and costs; and (3) failing to enter judgment in her favor on the issue of liability in view of Ward’s failure to comply with discovery procedures. We affirm in part, and vacate and remand in part.

In the spring of 1979, Restaino purchased an exercise bicycle (bike) from Ward that was manufactured by Beacon Enterprises, Inc. (Beacon). On August 18, 1979, while Restaino was operating the bike, the sharp metal seat post which holds the seat cut through the plastic seat, impaling Restaino on the seat post. Restaino thereafter filed suit against Beacon and Ward.

At trial, Restaino testified that she was 19 years of age when she was injured by the bike. She had ordered the bike from a Ward catalog via telephone. When she received the bike, she took it home, read the instructions and put the unassembled bike together. Restaino put all of the approximately 45 pieces together and there were none left over. Restaino further testified that on August 18, 1979, she was riding the bike as she normally had when the seat post cut through the plastic seat, penetrated her underpants and impaled her body upon the metal seat post. The metal seat post penetrated Restaino’s rectum and tore through her vagina and the area posterior to the cervix. Restaino was taken to the hospital and emergency surgery was performed that same day.

Dr. Carl Levy, the surgeon who operated on Restaino, testified that she had acute peritonitis of the abdomen. He had to repair Restaino’s rectal area and vaginal injury. There was also blood in her abdomen. A colostomy operation was performed and Restaino remained in the hospital for approximately two weeks. Restaino returned to the hospital for additional surgery to close the colostomy. Thereafter, excessive fluid was taken from her lungs and she was placed in intensive care. Restaino was diagnosed as having pulmonary embolus. This occurred from the clotting, of her blood in her thigh caused by the bike injury. The clot dislodged from her thigh and passed through her system, thereby blocking the passage of blood into her lungs. The result was chest pains and shortness of breath. Restaino remained in the hospital for three weeks and was discharged. She was, however, readmitted within 24 hours and diagnosed as having an acute gall bladder attack. It was the surgeon’s opinion that this gall bladder condition was caused by Restaino’s injury from the bike and her subsequent operations.

Dr. Sheldon Ettleson, an internist, also testified. He stated that Restaino was readmitted to the hospital for pulmonary embolus to her left lung. The previous diagnosis was to the right lung. It was his opinion that she would have a permanent persistence of pulmonary embolus.

Two other witnesses, Penina Wilson and Ester Mae Perry, testified on behalf of Restaino. Both stated that they had purchased the same model exercise bike from Ward. Both suffered injuries similar to those of Restaino resulting from the seat post cutting through the plastic seat. Wilson testified that her bike was assembled by Ward for a fee of $5.

George Bombyk testified as an expert witness for Restaino. He stated that his experience in working for the National Safety Council led him to conclude that the instructions for this particular bike were too complicated for lay persons. The instructions contained no warnings regarding the potential dangers of not following the instructions. He further stated that the instructions should have directed the purchaser to inspect the seat and bolts each time prior to riding and that the seat should have had a metal plate underneath.

John Geremia testified on behalf of Ward. Geremia stated that he conducted three different tests on the bike. The compression test demonstrated that the bike could withstand 2,000 pounds of pressure before the seat post cut through the seat. The drop test indicated that it would take 150 pounds per foot of pressure before the machine collapsed. The third test, the drill test, demonstrated how long it would take the seat post to drill through the seat. Depending on the time factor, the results would indicate that the machine was not properly assembled and that the bolts were not put into place. Geremia relied on this test and concluded that the metal post cut through the seat of Restaino’s bike because she did not properly connect the bolt to the seat post.

Following the close of evidence, Restaino made a motion to preclude assumption of the risk from jury consideration. This motion was denied. The jury returned a verdict in favor of Restaino in the amount of $113,501. However, the jury found that Restaino was guilty of assumption of the risk to the extent of 65%. Judgment was thereafter entered in favor of Restaino in the amount of $39,725.25. This appeal followed.

Restaino first argues that the trial court erred in submitting the issue of assumption of the risk to the jury. It is Restaino’s position that no facts exist in the record which suggest or intimate that Restaino knew or understood that a risk existed in using the bike and proceeded to operate it in light of that knowledge. We agree.

The application of assumption of the risk to limit a plaintiff’s recovery is based upon the notion that the plaintiff has voluntarily assumed an ascertainable risk and defendant should be relieved of legal duties stemming therefrom. (Duffy v. Midlothian Country Club (1985), 135 Ill. App. 3d 429, 433, 481 N.E.2d 1037, 1041.) Assumption of the risk has generally been applied in cases where a plaintiff has engaged in activities known to be dangerous, has used products known to be dangerous or has knowingly misused non-dangerous products. The test for determining whether a plaintiff has assumed the risk of using a product known to be dangerously defective is a subjective test. The plaintiff’s knowledge, understanding and appreciation of that danger is at issue and not the reasoning and knowledge of a reasonable, prudent person. (King v. American Food Equipment Co. (1987), 160 Ill. App. 3d 898, 908, 513 N.E.2d 958, 964.) Thus, a plaintiff is deemed to have assumed the risk of a defective product only if he is actually aware of the defective nature of the product and appreciates its unreasonably dangerous character, but nevertheless chooses to voluntarily act in disregard of such known danger. (King, 160 Ill. App. 3d at 908, 513 N.E.2d at 964.) The defendant bears the burden of establishing that the plaintiff deliberately decided to encounter a known risk or was willing to take a chance. Therefore, a consumer’s unobservant, unattentive, ignorant or awkward failure to either discover or guard against a defect should not be considered as a damage-reducing factor. King, 160 Ill. App. 3d at 908, 513 N.E.2d at 964.

In the instant case, the record does not support a finding that Restaino assumed the risk of the injury she received from the bike. It cannot be said that riding this bike was a dangerous and hazardous activity. If so, then an argument could be made that a warning should have been included with the product. There is no evidence that Restaino knowingly engaged in a dangerous activity, knowingly used a dangerous product or knowingly misused a nondangerous -product. Restaino is merely a consumer who purchased what she believed to be a safe and effective weight-reducing bike. If she as a consumer was unobservant or unattentive and failed to discover a potential defect in the bike, such ignorance is not admissible and cannot be used against her to r.educe her damages. We therefore find that the evidence as a matter of law did not warrant an assumption of the risk instruction and that the trial court erred in submitting this issue to the jury. Accordingly, we conclude that Restaino was prejudiced by the jury’s receipt of an assumption of the risk instruction and is thus entitled to a new trial on damages without the jury hearing evidence of her conduct.

Restaino next argues that the trial court erred in denying her costs and attorney fees. We disagree.

It is well settled that the allowance of attorney fees and costs is entirely dependent upon statutory authority. Only items allowed by statute can be recovered as costs. (Gruidl v. Schell (1988), 166 Ill. App. 3d 276, 284, 519 N.E.2d 963, 968.) The legislature may give the court power in general terms to make rules under which costs may be imposed, but any such statute must be strictly construed.

In the instant case, Restaino makes no reference to any statute which would give the court authority to award attorney fees and costs. Although the trial court did award Restaino sanctions in the amount of $1,607.90, we cannot find that she is entitled to attorney fees and costs in the absence of statutory authority.

In light of our decision of the previous issues, we need not address the remaining issue raised on appeal. Accordingly, the judgment entered in favor of Restaino and against Ward on the issue of liability is affirmed. The judgment rendered on damages is vacated and this cause is remanded for a new trial on the issue of damages only. The judgment denying Restaino attorney fees and costs is affirmed.

Affirmed in part; vacated and remanded in part.

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


text:
    BAT-A-BALL, INC., Plaintiff-Appellee, v. THE CITY OF CHICAGO et al., Defendants (Midland Warehouse et al., Defendants-Appellants).
    First District (1st Division)
    No. 1—88—2269
    Opinion filed May 8, 1989.
    Richard F. Friedeman, Jr., of Halfpenny, Hahn, Roche & Márchese, of Chicago, for appellants.
    Bernard I. Citron, of Schain, Firsel & Burney, Ltd., of Chicago, for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

This is an administrative review action. Defendants, Midland Warehouse and Midwest Folding Products, appeal from the reversal by the circuit court of an order entered by the Zoning Board of Appeals of the City of Chicago (ZBA) which denied the request by plaintiff, Bat-A-Ball, Inc., for a special use permit to allow an outdoor amusement facility comprised of automatic batting cages, video games and a go-cart track to be built in a manufacturing district zoned M2-4. The sole issue on appeal is whether the circuit court erred in finding that the ZBA’s decision was contrary to the manifest weight of the evidence. For the following reasons, we reverse the judgment of the circuit court.

The record sets forth the following facts pertinent to this appeal. Plaintiff owns vacant property located at the northwest corner of 15th Street and Western Avenue in Chicago. Directly to the south, across 15th Street, is the five-story brick Midland Warehouse Building, which provides leased space to small manufacturers. Defendant Midwest Folding Products is located to the north, along Western Avenue. To the west is a portion of the facilities of Inland Ryerson Steel, and to the east are the yard and trucking facility of Chicago and Northwestern Railroad. On September 16, 1987, pursuant to section 10.4 — 2 of the Chicago Zoning Ordinance (CZO) (Chicago Municipal Code ch. 194A, §10.4 — 2), plaintiff filed an application with the ZBA requesting a special use permit to establish an outdoor amusement facility at this location.

On December 11, 1987, a public hearing was held before the ZBA. At the hearing Michael Pelfresne, owner of Bat-A-Ball, Inc., testified that the facility would be open from mid-March to November, seven days per week, 8 a.m. until midnight. No food would be served. It was anticipated that the peak hours would be from 7 p.m. to 11 p.m. In addition to the batting cages, video games and go-cart track, there would be a parking lot which would accommodate 70 vehicles. The entire facility, including the parking lot, would be fenced and the facility would have a security system, but no security personnel. Pelfresne described the area as one having high traffic volume and no recreational facilities located nearby.

Pelfresne further stated that he owns similar facilities in Melrose Park and Tinley Park and testified that each attracted a cross-section of age groups and ethnic groups, and that he never had had any problems with fighting or complaints from surrounding property owners. In fact, he had never had to hire security personnel.

Anthony Miniscalco, president and design principal of Miniscalco Associates, architects and planners, testified on behalf of plaintiff that, in his opinion, the proposed use would not be harmful to the public health, welfare and safety of the area and would have no detrimental effect on the current manufacturing use of the surrounding area. Next, Terrence O’Brien, real estate appraiser, broker and consultant, testified on behalf of plaintiff that, in his opinion, the proposed use was harmonious with other uses in the area; would not create any extraordinary traffic; would not generate noise, odor or fumes; would not result in loss of air or light to adjoining property owners; and conformed to the trend in the area, which was moving away from manufacturing to commercial.

In opposition to the proposed use, Steve Vertin, commercial operator and industrial real estate appraiser, stated that his basic objection to the amusement facility was that it would increase the crime rate in the area and decrease property values. Vertin based this conclusion on a detailed study which indicated, inter alia, that East Garfield Park, located one-quarter mile from the proposed site, has the highest juvenile delinquency rate in Chicago and that the proposed use would be directed to the under-20 age group.

Next, Tom McGinnes, attorney for defendant Midland, testified that Midland, which leases space to manufacturing tenants, has heavy truck traffic and he foresaw problems with traffic when Bat-A-Ball patrons would be trying to get in and out of the parking lot. As a result, McGinnes predicted that the building’s tenants would suffer disruption in their pickups and deliveries and move their business elsewhere. McGinnes also expressed concern that Midland would have to hire additional security personnel and stated that police response time in that area was not very good. On cross-examination, McGinnes admitted that most of the deliveries to Midland are made during the day.

In addition to the testimony at the hearing, the record also contains the following letters which were written to the ZBA: (1) letter from Elizabeth Hollander, commissioner, department of planning, recommending that plaintiff’s application for a special use permit for the amusement facility be approved; (2) letter from ward alderman, Juan Soliz, recommending that the permit be approved; (3) letter from the mayor of Melrose Park, stating that there have never been any problems with the Bat-A-Ball facility in his city; (4) letter from Steve Vertin, appraiser, detailing the reasons for his conclusion that the proposed use would have a substantial adverse effect on market values of surrounding properties; and (5) letter from Chicago and Northwestern Railroad stating that the amusement facility “would not be compatible with the public good and it would be detrimental to the interests of the established property owners.”

On December 23, 1987, the ZBA denied plaintiff’s application on the following grounds:

“[T]he proposed outdoor amusement facility would be incompatible with the surrounding manufacturing uses and is not necessary for the public convenience at this location; that the nature of the proposed use would attract mostly younger persons creating a potential for a gathering place which would pose a threat to the public health, safety and welfare of this manufacturing community; and that the establishment of an outdoor amusement facility on the subject site 2.8 acres would adversely affect the viability of the existing manufacturing uses in the area.”

On administrative review, the circuit court reversed the ZBA’s decision on the grounds that it was against the manifest weight of the evidence. The court specifically noted that in reaching its decision, the ZB A had apparently disregarded the alderman’s letter, the letter from the department of planning, Pelfresne’s testimony and Miniscalco’s testimony. Defendants Midland Warehouse and Midwest Folding Products appealed the circuit court’s decision. Neither the city nor the ZBA appealed.

In support of its position that the circuit court erred in finding that the ZBA’s decision was contrary to the manifest weight of the evidence, defendants contend that plaintiff failed to provide sufficient evidence that the proposed use would comply with the requisite standards for the allowance of a special use permit set forth in section 11.10 — 4 of the CZO. Section 11.10 — 4 provides, in pertinent part:

“No special use shall be granted by the Zoning Board of Appeals unless the special use:
(1) a. Is necessary for the public convenience at that location.
b. Is so designed, located and proposed to be operated that the public health, safety and welfare will be protected; and
(2) Will not cause substantial injury to the value of other property in the neighborhood in which it is to be located; and
* * *
(4) Such special use shall conform to the applicable regulations of the district in which it is to be located.” (Chicago Municipal Code ch. 194A, §11.10 — 4.)

Initially, we note that the language of section 11.10 — 4 is in the conjunctive. Therefore, it is the applicant’s burden to prove that the proposed use meets all of the required standards. (Racith Corp. v. Zoning Board of Appeals (1981), 95 Ill. App. 3d 716, 420 N.E.2d 630.) Although there is no direct reference to section 11.10 — 4 in the ZBA’s findings, the findings specifically address all of the section 11.10 — 4 requirements which provide the basis for the ZBA’s denial of plaintiff’s request.

It is well recognized that the ZBA is vested with broad powers in determining the suitability of a given site for a proposed special use. (Racith Corp. v. Zoning Board of Appeals (1981), 95 Ill. App. 3d 716, 420 N.E.2d 630.) On administrative review, the finding and conclusions made by the ZBA on questions of fact shall be held to be prima facie true and correct, and its decision will not be reversed unless it is against the manifest weight of the evidence. Hope Deliverance Center, Inc. v. Zoning Board of Appeals (1983), 116 Ill. App. 3d 868, 452 N.E.2d 630.

The first standard set forth in section 11.10 — 4 is that the proposed use must be “necessary for the public convenience at that location.” The term “necessary,” as it is used in section 11.10 — 4, has been regularly construed by the courts to mean “expedient” or “reasonably convenient” to the public welfare. (Illinois Bell Telephone Co. v. Fox (1949), 402 Ill. 617, 85 N.E.2d 43; Hope Deliverance Center, 116 Ill. App. 3d 868, 452 N.E.2d 630; Foster & Kleiser, Division of Metromedia, Inc. v. Zoning Board of Appeals (1976), 38 Ill. App. 3d 50, 347 N.E.2d 493.) In the present case, Michael Pelfresne, owner of Bat-A-Ball, Inc., testified that there are no recreational facilities nearby and that by building a landscaped recreational facility on the proposed site, which is currently a debris-strewn vacant lot, the lot would improve the area. Further, in a letter to the ZBA recommending that the facility be approved, Juan Soliz, 25th ward alderman, stated that, “Any additional recreational facility would only be a bonus to the many children in our 25th ward.”

At the hearing, defendants did not dispute the lack of recreational facilities nearby. However, they argued that the very lack of other recreational facilities nearby combined with the area’s large high school drop-out rate and high unemployment increased the potential for the subject property to be a gathering place for delinquent juveniles. Defendants argued that the potential for trouble was further exacerbated by the fact that East Garfield Park, an area with the highest juvenile delinquency crime rate in Chicago, was only one-quarter mile away.

Regarding the second standard set forth in section 11.10 — 4 that the proposed use be “designed, located and proposed to be operated [so] that the public health, safety and welfare will be protected,” Pelfresne testified that the proposed facility would be landscaped, contain a parking lot, be completely enclosed by a fence, and have an installed security system. Pelfresne also testified that no food would be served at the facility and that he had never had any complaints from property owners living near his other facilities.

Anthony Miniscalco, architect and planner, testified that the proposed use would not be harmful to the public health, welfare and safety and that it would have no detrimental effect on the surrounding area. Similarly, Terrence O’Brien, real estate appraiser and consultant, testified that the proposed use would not generate any extraordinary traffic, noise, odors or fumes.

In opposition to the use, Steve Vertin, real estate appraiser, reiterated the fact that the increased potential for crime due to the facility’s proximity to high crime areas would adversely affect the health, safety and public welfare of the community.

In our view, Pelfresne’s claim that there had been no trouble at his other Bat-A-Ball facilities is irrelevant to the present subject property because the demographics are strikingly different. Moreover, Pelfresne’s emphasis on the fact that the peak hours of the facility would be from 7 p.m. to 11 p.m. is equally irrelevant. That statement is predicated on the peak hours at the other facilities, where teenagers are in school or are working. As discussed, those are not the conditions in the subject area. Thus, the potential for an all-day/all-night hangout is increased. During the summer months, the potential would be even greater. Although Pelfresne stated that patrons would not be allowed to loiter at the facility and that they would have to be paying customers, it is difficult to see how the facility would enforce these rules against individuals who routinely break the law. Further, we find the statements by plaintiff’s experts that the facility would not harm the public welfare, health or safety to be mere unsupported conclusions. By contrast, as indicated in Vertin’s letter to the ZBA, Vertin had studied several statistical reports to arrive at his conclusions that the proposed facility would increase the crime rate in the area and decrease property values.

The third standard set forth in section 11.10 — 4 requires that the proposed use “not cause substantial injury to the value of other property in the neighborhood in which it is to be located.” Pelfresne’s testimony regarding the fence and security system and lack of complaints also applies to this standard. In addition, the letter to the ZBA from the department of planning recommending the use also impliedly supports plaintiff’s position that the property values would not be harmed. Further, Terrence O’Brien specifically stated that the facility would not be unsightly, noisy or result in loss of air or light to adjoining property owners and would not cause any substantial injury to the surrounding manufacturing companies.

Regarding evidence against the proposed use, defendants’ argument regarding the potential for increased crime is relevant to this standard, including defendant Midland’s contention that the potential for increased crime would result in loss of tenants in its building. We concur with the ZBA’s decision that the appropriate emphasis is on the increased crime rate and the adverse effect on existing manufacturing uses in the area. Without question, these two factors would create a negative impact on the area’s property values. Contrary to plaintiff’s testimony, the concern is not the appearance of the facility, the loss of light or air, or noise.

The final standard set forth in section 11.10 — 4 requires that the special use “conform to the applicable regulations of the district in which it is to be located.” Relying on section 10.4 — 2 of the CZO, which allows “Parks and Playgrounds” and “Outdoor Amusement Establishments” to be built in manufacturing districts, plaintiff contends that the CZO presumes a certain compatibility of the proposed use to the area. Further, Terrence O’Brien testified that, in his opinion, the facility was compatible to other uses in the surrounding area. O’Brien offered no statistical support for his conclusion. Similarly, the letter from the department of planning was merely a blanket approval with no explanation to support its conclusion. Accordingly, we find O’Brien’s testimony and the department of planning’s letter to be of little, if any, persuasive value.

In objecting to the proposed use, defendants stated that their businesses generated high truck traffic and that the amusement facility would interfere with their deliveries and pickups. As a result of this interference, tenants would move their businesses elsewhere. Although defendant Midland admitted on cross-examination that most of its pickups and deliveries were made during the day, this fact does not negate the facility’s impact on the traffic problem because, as discussed, the facility is likely to be frequented during the day by the large number of high school dropouts and unemployed teenagers in the area who have no place else to go. Even if they cannot afford to pay for the amusements, they can loiter in the parking lot.

Accordingly, we find the evidence supports the ZBA’s determination that plaintiff’s proposed use: (1) would be incompatible with the surrounding manufacturing uses; (2) is unnecessary for public convenience; (3) would pose a threat to the public health, safety and welfare of the community; and (4) would adversely impact on the viability of existing manufacturing uses. In our view, the ZBA’s findings clearly indicate that plaintiff has failed to satisfy the requirements of section 11.10 — 4 of the CZO. Therefore, we hold that the circuit court erred in finding that the ZBA’s denial of the special use was against the manifest weight of the evidence.

For the aforementioned reasons, the order of the circuit court reversing the decision of the ZBA is reversed.

Reversed.

BUCKLEY and QUINLAN, JJ., concur.

       On plaintiff's motion, the letter from Chicago and Northwestern Railroad was stricken from the record on the grounds that it did not reach the ZBA until after its deliberation and entry of an order in this matter.