author: JUSTICE O’CONNOR

text:
    FLORENCE RYNN, Plaintiff-Appellant, v. WILLIAM OWENS et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—88—0486
    Opinion filed March 27, 1989.
    — Rehearing denied May 1, 1989.

      James R. Platt and Robert D. Shearer, both of Chicago, for appellant.
    Flynn, Murphy & Ryan, of Chicago (Richard T. Ryan, Emmett J. Galvin, and Mark F. Smolens, of counsel), for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff Florence Rynn sued her nephew, defendant William Owens, for conversion of funds held in four bank accounts established by Mary Tamborine, now deceased. Rynn appeals a summary judgment order that the funds from two of four accounts be divided equally between Rynn and Owens. For the reasons below, we affirm.

In 1986, Mrs. Mary Tamborine, Rynn’s sister and Owens’ aunt, used money she inherited from her husband to open four bank accounts. On March 10, Mrs. Tamborine opened two accounts at the Colonial Bank & Trust Company in Chicago (CB&T), savings account No. 87496 — 6 and savings account No. 87497—4. On March 17, Mrs. Tamborine opened checking account No. 63 — 112—4 at CB&T (the checking account). On June 12, Mrs. Tamborine opened savings account No. 757208 — 80 at the Midwest Bank & Trust Company in Chicago (the MB&T account).

Title to all four accounts was held by “Mary Tamborine or William Owens or Florence Rynn.” Tamborine and Owens had signed the bank signature cards for all four accounts, but Rynn had signed only for CB&T account No. 87497 — 4 and the MB&T account. Although Rynn had not signed the signature card for the checking account, CB&T paid checks that she drew on the account. The signature cards contained a survivorship agreement that bound the signing parties.

On February 21, 1987, Mrs. Tamborine suffered a stroke and was hospitalized until her death on March 15, 1987. On March 2, 1987, Owens withdrew the funds from the CB&T savings accounts and the MB&T account, a total of $296,627.30, and redeposited the money in two savings accounts at CB&T, held in his and his wife’s name. On March 6, 1987, Rynn withdrew the funds from the checking account, approximately $11,300, by writing a check to herself.

On May 11, 1987, Rynn filed a verified complaint against Owens, alleging that Rynn and Owens were joint tenants in the accounts and that Owens had converted the funds. Rynn demanded half the funds from the three savings accounts. On June 24, 1987, Owens filed an answer, denying that Rynn had any interest in account No. 87496 — 6. Owens also filed a counterclaim, alleging that Rynn had improperly withdrawn funds from the checking account and demanding the return of the $11,300.

On August 6, 1987, Rynn moved for summary judgment, arguing that she and Owens were in “equal status” as to the funds in the four accounts and asking the court to award her half the money from all four accounts. On September 11, 1987, Owens moved for summary judgment on the counterclaim, asking return of the money taken from the checking account. Owens also moved for partial summary judgment, arguing that Rynn was entitled to no money from savings account No. 87496 — 6, and demanding return of the $11,300 that Rynn had withdrawn from the checking account.

On November 9, 1987, Rynn answered Owens’ counterclaim and filed a verified amended complaint. The amended complaint was filed without leave of the court. Leave was later granted as part of the summary judgment order of December 17, 1987. The amended complaint alleged that Owens was only a joint custodian of the accounts, and therefore had no interest in the funds in any of the accounts, and that Owens had breached a fiduciary duty. Rynn asked for all of the money from all four accounts.

On November 10, 1987, Rynn took the evidentiary deposition of Father Joseph Christ. Father Christ stated that for many years he had been a friend and confidant of Mrs. Rynn and Mrs. Tamborine, that Mrs. Tamborine had told him that she wanted Mrs. Rynn to have all of her money, and that she had put the money in the accounts to prevent Mrs. Rynn’s estranged husband from getting at the money. Father Christ further stated that Mrs. Tamborine had told him that Mr. Owens, who was executor of Mrs. Tamborine’s will, was named on the accounts only as a trustee or guarantor and that Mrs. Tam-borine did not intend for Mr. Owens to receive any of the money from the accounts. Father Christ’s deposition formed the basis for the allegations of the amended complaint. Owens’ attorneys received the amended complaint on November 12, 1987, and moved to strike it on December 4,1987.

On December 14, 1987, a hearing was held on Rynn’s motion for summary judgment. The trial court ruled that, based on the signature cards of the four accounts, Rynn and Owens were each entitled to half the funds from CB&T account No. 87497 — 4 and the MB&T account. Rynn’s share was reduced by the amount taken from the checking account, $11,300. The outstanding $11,300, as well as the money from the remaining two accounts, was to be held in trust pending further order of the court. Rynn was granted leave to file the amended complaint instanter. These rulings were stated in an order dated December 17,1987.

On December 22, Rynn filed an emergency motion to vacate the summary judgment order. Rynn’s attorney, Mr. Platt, also requested that the court enter a disbursement order before the summary judgment order became final on January 17, 1988. Both the motion and Mr. Platt’s request were denied.

On January 28, 1988, after expiration of the 30 days for notice of appeal, an agreed order for release of the funds, signed by attorneys for both parties, was given to the trial court. Mr. Platt indicated to the court that no appeal had been filed, and accordingly, the trial court ordered disbursement of the funds. On February 19, 1988, Rynn filed a motion for a late notice of appeal with this court, pursuant to Supreme Court Rule 303(e) (87 Ill. 2d R. 303(e)). The motion was granted, and late notice of appeal was filed on February 26.

At a hearing on March 3, 1988, the trial judge barred Mr. Platt from practicing in his courtroom because the judge felt that on January 28, Mr. Platt had induced disbursement of the funds by misrepresenting to the court his intention not to file an appeal.

Rynn argues that the summary judgment order was improper because no motion was before the court to award any of the money to Owens and because Father Christ’s evidentiary deposition raised material issues of fact concerning the donative intent of Mary Tam-borine. Rynn further argues that the trial judge was improperly prejudiced against Mr. Platt, and in a separate motion, asks for substitution of judges on remand. Both contentions are without merit. The trial court correctly ruled based on the motion and pleadings before it, and the record shows no evidence of prejudice towards Mr. Platt.

The motion for summary judgment was based on Rynn’s original complaint, although the amended complaint was subsequently filed. Amended pleadings ordinarily supersede prior pleadings, but a well-recognized exception exists where, as here, the original pleading was verified. Verified pleadings remain part of the record, and any admissions not the product of mistake or inadvertence become binding judicial admissions. (American National Bank & Trust Co. v. Erick son (1983), 115 Ill. App. 3d 1026, 1029, 452 N.E.2d 3, appeal denied (1983), 96 Ill. 2d 558.) Here, the original complaint alleged joint tenancies in the bank accounts. Because the amended complaint did not assert that the allegations in the original complaint of joint tenancies were the product of mistake or inadvertence, they stand as judicial admissions. The motion for summary judgment was therefore determined by whether the facts and admissions in the original complaint supported Rynn’s assertion that she was entitled to half the funds in the four accounts.

Title to each of the accounts was held by Tamborine, Rynn, and Owens, as joint tenants. The right of survivorship, however, existed only among the parties who had signed the bank signature cards. (See Frey v. Wubbena (1962), 26 Ill. 2d 62, 185 N.E.2d 850; Doubler v. Doubler (1952), 412 Ill. 597, 107 N.E.2d 789; Bray v. Illinois National Bank (1976), 37 Ill. App. 3d 286, 345 N.E.2d 503.) Thus, when Mrs. Tamborine died, Rynn held survivorship rights only in the accounts where she had signed the signature card, the MB&T account and CB&T account No. 87497 — 4. Because the money had been taken from the accounts, the trial court ordered distribution of the funds.

Rynn further contends that Father Christ’s evidentiary deposition raised issues of material fact concerning Mrs. Tamborine’s donative intent and that the proper disposition of the funds not awarded to Rynn remains in dispute. This argument is irrelevant. The motion for summary judgment was based on the original complaint, which raised no issue concerning donative intent. Had Rynn sought to raise the issue of donative intent, the motion for summary judgment should have been withdrawn. Mr. Platt made no attempt to amend or withdraw the motion.

For similar reasons, the argument that Rynn was prejudiced because Mr. Platt was not given adequate opportunity to argue the issues raised by Father Christ’s deposition testimony must also fail. Mr. Platt knew of the content of Father Christ’s deposition, apparently before it was taken, since Mr. Platt filed the amended complaint on November 9, 1987, and the deposition was not taken until November 10. Mr. Platt had ample opportunity to withdraw the motion for summary judgment, which was based on the original complaint, but chose not to. Rynn’s arguments attempt to assign error to the trial court for Mr. Platt’s mistake in not withdrawing the motion for summary judgment after the amended complaint was filed. The trial court is not accountable for the strategic errors of counsel. We further note that Mr. Platt had the opportunity to argue the facts and theories of his amended complaint. The trial court did not consider them appropriate, however, and rejected them.

The trial court’s ruling, moreover, determined the rights of the parties with respect to all of the funds. The summary judgment order was in effect a partial summary judgment, because it reserved matters for later disposition by the court. But the order was based on the finding that Mrs. Rynn enjoyed survivorship rights only in the accounts for which she had signed, the theory set forth by the original complaint. Logically, Mrs. Rynn holds no rights to any of the funds from the remaining accounts. Thus, the rights of the parties were determined with respeet to all the funds. Because we hold that the trial court ruled correctly on the theory of the original complaint, and that ruling disposed of all of the issues in the case, the amended complaint, which supports an alternative, incompatible theory, is now moot.

Rynn’s second principal argument is that the trial court’s ruling on the motion for summary judgment was improper because the trial court was prejudiced against Mr. Platt. Rynn’s argument is based on the fact that after Mr. Platt represented to the trial court on January 28, 1988, that no appeal had been filed, and the trial court executed an agreed order for disbursement of the funds, Mr. Platt petitioned for leave to file a late appeal. As a result of Mr. Platt’s conduct, the trial judge barred Mr. Platt from practicing in his courtroom.

The record shows that Mr. Platt misrepresented his intention to appeal, but the issues of whether Mr. Platt was guilty of misconduct or whether Mrs. Rynn was improperly placed in a position of having to forfeit the right of appeal to receive her money, are irrelevant. The record shows absolutely no bias or ill will towards Mrs. Rynn or Mr. Platt until Mr. Platt’s conduct and motives became apparent to the trial court in the hearing on March 3, 1988. The word “prejudice” implies judgment before the fact. Here, it is asserted that the chilled relations between the court and counsel, which arose from conduct in January and February of 1988 and culminated with the trial judge barring Mr. Platt from his courtroom in March 1988, improperly influenced the trial court’s ruling in December of 1987. We are not persuaded.

In conclusion, the summary judgment was decided on the basis of the pleading that supported it, the original complaint. Mr. Platt had every opportunity to withdraw the motion or amend it to be consistent with the allegations of the amended complaint, but did not do so. Looking to the form and substance of the accounts, the trial court properly found that Mrs. Rynn was entitled to half the funds from the accounts for which she had signed. Further, the summary judgment order effectively determined the rights of the parties with respect to all of the funds. Because we hold that the trial court ruled correctly, the amended complaint, as noted above, is now moot. Finally, the record shows absolutely no evidence of bias or prejudice. The ruling on Rynn’s motion for summary judgment is affirmed, and accordingly, it is unnecessary to consider the motion for substitution of judges.

Affirmed.

MANNING, P.J., and QUINLAN, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    CATHERINE HENEGHAN, Adm’r of the Estate of John Heneghan, Deceased, et al., Plaintiffs, v. KAZIMIERZ SEKULA, Defendant and Third-Party Plaintiff-Appellant (Steven F. Delneky et al., Third-Party Defendants-Appellees).
    First District (1st Division)
    No. 1—88—1469
    Opinion filed March 27, 1989.

      William J. Harte, Ltd., of Chicago (William J. Harte and David J. Walker, of counsel), for appellant Kazimierz Sekula.
    Rooks, Pitts & Poust, of Chicago (Terrence J. Madden, of counsel), for appellee Eleanor Weiss.
    Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers and Michael G. Bruton, of counsel), for appellee Steven F. Delneky.
    Todd A. Smith, of Chicago, for amicus curiae Illinois Trial Lawyers Association.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This is an appeal from the dismissal of a contribution action as time barred by the medical malpractice statute of repose. (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 212.) In addition to the named parties, briefs have been submitted by amicus curiae, the Illinois Trial Lawyers Association. We affirm.

On June 25, 1980, Catherine Heneghan and Maureen Jamieson filed a complaint against defendant and third-party plaintiff Kazimierz Sekula for the wrongful death of John Heneghan. On June 9, 1983, Catherine Heneghan filed a separate complaint against Northwest Hospital and four doctors, including Marvin H. Weiss and Steven E Delneky, alleging medical malpractice. On June 23, 1983, an order was entered dismissing the complaint against Sekula based upon a purported settlement.

On November 9, 1983, Catherine Heneghan’s suit against Dr. Delneky and Dr. Weiss was dismissed as untimely pursuant to the two-year statute of limitations contained in section 13 — 212 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1983, ch. 110, par. 13— 212). On February 10, 1984, the plaintiffs in Heneghan v. Sekula moved to vacate the June 23, 1983, order dismissing that case. The trial court granted the motion to vacate.

On December 18, 1985, Sekula filed a third-party complaint asserting a right to contribution against Northwest Hospital, Dr. Delneky and Dr. Weiss. All three third-party defendants moved to dismiss on the basis that the medical malpractice statute of repose (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 212) barred the action for contribution. The trial court granted the motions based on the medical malpractice statute of repose and Sekula now brings this appeal.

Sekula contends that the applicable statute of limitations for a third-party claim brought under the Contribution Act (Ill. Rev. Stat. 1985, ch. 70, par. 301 et seq.) is contained in section 13—204 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13— 204), rather than section 13 — 212. At the time Sekula filed his third-party action, section 13 — 204 provided in relevant part:

“No action for contribution among joint tortfeasors shall be commenced with respect to any payment made in excess of a party’s pro rata share more than 2 years after the party seeking contribution has made such payment towards discharge of his or her liability.” Ill. Rev. Stat. 1983, ch. 110, par. 13 — 204.

Section 13 — 212 provided as follows:

“No action for damages for injury or death against any physician, dentist, registered nurse or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such action be brought more than b years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death except as provided in Section 13—215 of this Act.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 110, par. 13 — 212.

Sekula contends that section 13—204 is a more specific statute than section 13 — 212 and therefore, pursuant to Sierra Club v. Kenney (1981), 88 Ill. 2d 110, 126, 429 N.E.2d 1214, it should prevail over section 13 — 212, which he asserts is a more general provision. He submits that the medical malpractice statute of repose contains only a general provision barring actions against doctors, dentists, nurses and hospitals and does not specifically bar actions for contribution. He further contends that if the Illinois legislature had intended the medical malpractice repose statute to apply to contribution actions, it would either have done so specifically or amended section 13 — 204 to so provide.

Sekula cites Natural Products Co. v. County of Du Page (1924), 314 Ill. 74, 80-81, 145 N.E. 298, in which the court noted that where a specific statute conflicts with a general one, the former is treated as an exception to the latter and controls. He argues that in the instant case, an action brought for contribution has a specific statutory time limitation and is therefore an exception to a general statute of limitations.

It is a well-established rule of statutory construction that a particularized statute should prevail over a more general statute dealing with the same subject. As noted by our supreme court in People ex rel. Myers v. Pennsylvania R.R. Co. (1960), 19 Ill. 2d 122, 166 N.E.2d 86:

“It is a settled rule of statutory construction that where there is found in a statute a particular enactment, it is held to be operative as against the general provisions on the same subject either in the same act or in the general laws relating thereto.” (19 Ill. 2d at 129.)

(Accord Sierra Club v. Kenney (1981), 88 Ill. 2d 110, 126, 429 N.E.2d 1214.) With respect to the instant case, we believe that section 13— 212 is more specific than section 13 — 204 of the Code of Civil Procedure and therefore section 13 — 212 applies to the malpractice claim here and bars the third-party action.

By its language, the contribution statute of limitations, section 13 — 204 of the Code, applies to a broad range of actions, including those arising from the operation of motor vehicles, the maintenance of premises, construction activities, product liability-type claims and actions against health care providers. The malpractice statute of repose, in contrast, applies only to actions against “any physician, dentist, registered nurse or hospital *** whether based upon tort, or breach of contract, or otherwise, arising out of patient care.” (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 212.) It is clearly narrower and more specific than the contribution statute of limitations, which makes no distinction between actions against doctors and health care providers and actions against any other type of tort defendant.

Sekula raises the argument that even if section 13 — 212 is the applicable statute of limitations, the statute does not encompass claims for contribution and therefore cannot act as a bar. His position is that section 13 — 212 applies only to plaintiffs and related parties injured by the defendants but that it has no bearing on contribution actions.

It is a cardinal rule of statutory interpretation that when the terms of a statute are not specifically defined, the words must be given their ordinary and popularly understood meanings. (Niven v. Siqueira (1985), 109 Ill. 2d 357, 366, 487 N.E.2d 937.) Where the language and plain meaning of a statute are clear, a court is prohibited from restricting or enlarging that meaning. (Ehredt v. Forest Hospital, Inc. (1986), 142 Ill. App. 3d 1009, 1012, 492 N.E.2d 532.) Although section 13—212 does not specifically define the term “action,” it must be given its ordinary and popularly understood meaning and it must be construed with reference to the purposes and objectives of the statute.

The ordinary and popular meaning of the term “action” includes “all the formal proceedings in a court of justice attendant upon the demand of a right made by one person of another in such court, including an adjudication upon the right and its enforcement or denial by the court.” (Black’s Law Dictionary 26 (5th ed. 1979).) A third-party action for contribution clearly falls within this ordinary and popular meaning. This definition is also consistent with the purpose of the statute of repose, which is intended to terminate the possibility of liability to physicians for actions arising out of patient care after a definite period of time. Mega v. Holy Cross Hospital (1986), 111 Ill. 2d 416, 422, 490 N.E.2d 665.

Another equally well-recognized rule of statutory construction is that the stated expression of an exception or an exclusion in a statute is presumed to exclude all other possible exceptions. See, e.g., Weast Construction Co. v. Industrial Comm’n (1984), 102 Ill. 2d 337, 340, 466 N.E.2d 215.

By its plain language, section 13 — 212 applies to all actions against physicians for malpractice “whether based upon tort, or breach of contract, or otherwise.” The statute further states that “in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death except as provided in Section 13 — 215 of this Act.” Ill. Rev. Stat. 1985, ch. 110, par. 13 — 212.

Section 13 — 212 provides exceptions to the four-year repose period only for plaintiffs under a legal disability, and section 13 — 215, incorporated by reference in section 13 — 212, adds an exception in cases of fraudulent concealment of a cause of action. The legislature provided no comparable exclusion for actions brought under the Contribution Act. We believe the legislature’s decision to expressly include certain exceptions indicates an intention that the medical malpractice statute of repose was subject only to those included exceptions and not to general exceptions contained in other statutes.

Sekula also contends that as section 13 — 204 was passed subsequent to section 13 — 212, the adoption of the contribution statute of limitations operated to modify the malpractice statute of repose. Under the rales of statutory construction, however, the more specific statute prevails regardless of the temporal sequence in which the statutes were enacted. (Zears v. Davison (1987), 154 Ill. App. 3d 408, 411, 506 N.E.2d 1041.) Thus the malpractice statute of repose takes priority over the contribution statute of limitations regardless of the fact that the contribution statute of limitations was enacted later in time.

In granting defendants’ motions to dismiss, the trial court relied upon Hartford Fire Insurance Co. v. Architectural Management, Inc. (1987), 158 Ill. App. 3d 515, 511 N.E.2d 706. (Accord Hayes v. Mercy Hospital & Medical Center (1989), 180 Ill. App. 3d 441; La Salle National Bank v. Edward M. Cohon & Associates, Ltd. (1988), 177 Ill. App. 3d 464, 532 N.E.2d 314.) The architectural statute of repose involved in Hartford was contained in section 13 — 214(b) of the Code of Civil Procedure, which provided as follows:

“No action based upon tort, contract or otherwise may be brought against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property after 12 years have elapsed from the time of such act or omission. However, any person who discovers such act or omission prior to expiration of 12 years from the time of such act or omission shall in no event have less than 2 years to bring an action as provided in subsection (a).” Ill. Rev. Stat. 1981, ch. 110, par. 13 — 214(b).

The plaintiffs in Hartford, as subrogees of a school district, filed suit in December 1981 for damages against an architectural firm alleging certain acts of negligence in the design and construction of a school. On December 17, 1985, the architects filed a third-party complaint against the mechanical and electrical engineers. The engineers moved to dismiss the complaint on the ground that it was time barred by section 13 — 214(b) of the Code. (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 214(b).) The architects countered that section 13 — 204 (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 204) applied rather than section 13— 214(b) as section 13 — 204 specifically governs actions for contribution.

The court rejected this argument, holding that the language of section 13 — 214, as well as the legislative history of the section, reflects the legislative intent that section 13 — 214 govern all actions against persons involved in the construction-related activities described in that section. (Hartford, 158 Ill. App. 3d at 518.) The court found that according to the legislative history, the purpose of section 13 — 214 is to protect persons involved in the design and construction of buildings from potentially unlimited liability, a purpose that the court found would be thwarted if contribution actions were excluded from the purview of section 13—214. (Hartford, 158 Ill. App. 3d at 519-20.) The Hartford court also noted that in most circumstances, the statute of repose does not defeat the purpose of the Contribution Act, as the party potentially liable for the payment of a claim may commence a separate action for contribution from those believed to be joint tortfeasors before his own liability is established. Hartford, 158 Ill. App. 3d at 520.

Sekula argues that Hartford is inapplicable to the current case in that it involved the architectural statute of repose rather than the medical malpractice statute of repose and on the basis that Hartford was incorrectly decided and should be reversed. We agree with the trial court that the situation presented in Hartford is essentially indistinguishable from the situation at issue here.

With the exception that section 13 — 214(b) is directed to those involved in construction activities and involves a different period of repose, the pertinent language of the statute is virtually indistinguishable from that of section 13 — 212 of the Code of Civil Procedure. Both statutes provide that they apply to actions based upon “tort, contract or otherwise” and both further provide that “in no event” may such an action be brought after the prescribed period of time. Neither statute provides an exclusion for actions for contribution. The statute involved in Hartford is also indistinguishable from the malpractice statute of repose in that if applied to contribution claims, both statutes could operate to bar contribution claims even before a defendant had an opportunity to file such a claim.

Sekula suggests that the purpose of the Contribution Act would be contravened by holding it subject to a statute of repose. Using the construction statute of repose as an example, he points out that the Hartford court assumed that a plaintiff would always file his action and thus cause a defendant/third-party plaintiff to be aware of his own action within the 10-year repose period. Sekula contends, however, that there is no such guarantee. As section 13 — 214(b) now provides that any person who discovers his right of action within the repose period “shall in no event have less than 4 years to bring an action,” a plaintiff who discovers his right of action on the last day of the ten-year repose period could wait another four years to file suit. (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 214(b).) By choosing to wait until the end of the 14-year period, he would preclude the possibility that the defendant would learn of his own contribution claim within the period of repose, thus eliminating the possibility of bringing a third-party action for contribution. Sekula contends that this kind of foreclosure of claims, which would force one tortfeasor to shoulder the entire responsibility for anothers’ actions, is precisely what the Contribution Act seeks to prevent.

Section 13 — 212 of the Code of Civil Procedure explicitly provides that “in no event” may an action against a physician for malpractice be filed more than four years after the acts or omissions constituting the alleged malpractice. It appears that the medical malpractice statute of repose represents the legislative response to a perceived medical malpractice crisis and that it was intended to apply to all actions for malpractice, whether brought directly by the injured patient or brought as a contribution claim by a defendant tortfeasor. While we believe the language of that section requires dismissal of the instant action, we are also mindful of the legislature’s concern that liability for wrongs should be shared equitably, as reflected in the Contribution Act (Ill. Rev. Stat. 1987, ch. 70, par. 301 et seq.; see also Doyle v. Rhodes (1984), 101 Ill. 2d 1, 14, 461 N.E.2d 382).

If, in fact, the public policy underlying the Contribution Act was intended to prevail over the policy that led to the enactment of a four-year medical malpractice statute of repose, that is an issue that should be addressed by the legislature rather than by the courts.

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

Judgment affirmed.

CAMPBELL and BUCKLEY, JJ., concur.


author: PRESIDING JUSTICE EGAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTONIO REYES, Defendant-Appellant.
    First District (2nd Division)
    No. 1—86—3195
    Opinion filed March 28, 1989.

      Michael J. Pelletier and Karen Daniel, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Linda Woloshin, and William B. Schiller, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE EGAN

delivered the opinion of the court:

The defendant, Antonio Reyes, and Jose Hernandez were indicted for armed robbery, armed violence, unlawful restraint, aggravated kidnapping and separate counts of murder, including intentional murder, killing in the commission of a forcible felony and stabbing the victim, knowing that such action would cause strong probability of death. Hernandez pleaded guilty to intentional murder, armed robbery and aggravated kidnapping and was sentenced to concurrent terms of 35 years for murder and 30 years for armed robbery and aggravated kidnapping. The defendant was convicted by a jury of armed robbery, felony murder and stabbing the victim knowing that it would cause strong probability of death. His defense was insanity. The judge indicated he would not impose the death penalty, and the defendant waived his right to a jury for sentencing. The judge found that the defendant was eligible for the death penalty but, because of the mitigating factor of diminished mental ability, he sentenced him to a term of natural life imprisonment.

Judy Benson, the girlfriend of Hernandez, testified that on August 14 and 15, 1984, the defendant and Hernandez discussed plans to steal a car in order to drive to Idaho to avoid pending criminal charges. On August 16 at 10 a.m., the defendant and Hernandez met Benson. The three went to a resale store where both Hernandez and the defendant made purchases. They stopped at the San Antonio Bar in Chicago, where the defendant changed his shirt and shoes and discarded his old clothes in the alley. The three spent the day together, returning to an area of Chicago called “Greek Town” about 6 p.m. Benson left and rejoined them between 7 p.m. and 8:30 p.m. at the van in which defendant and Hernandez were living. The two men were drinking; Benson observed that they had a six-pack of malt liquor beer, of which two cans had been opened; however, neither man seemed intoxicated.

The defendant said that “tonight is the night we’re going to do it. We’re going to get a — we’re going to leave.” Hernandez took Benson’s purse and showed the defendant Benson’s driver’s license, apparently to show that Benson could lawfully drive a vehicle. Pursuant to Hernandez’ instructions, Benson went home, changed and returned to the van about one hour later. The defendant again stated that they were going to steal a car, hot wire a car or highjack a cab, but Benson refused to participate. Benson and Hernandez stepped away from the defendant, and Hernandez threatened to kill her if she refused to cooperate. Benson again refused, noting that she was pregnant with his child.

The three went to the corner of Gladys and Halsted, and Hernandez flagged down a cab. He refused to enter the cab because he knew the driver. Both Hernandez and the defendant stated that they had to catch another cab. The defendant said that they would have to “get rid of the driver” and that “we’ll kill the mother-fucker if we have to.” They then flagged down another cab, a Checker cab, and got in. Hernandez was carrying a red duffle bag in which he had placed a knife with a wooden handle and a six-inch blade. It was called a “pro-throw” knife.

The defendant gave a statement to Assistant State’s Attorney Dane Cleven which was recorded by a stenographer, transcribed and signed by the defendant. In that statement the defendant said the following: He and Hernandez entered into the back of a cab driven by Dennis Reilly and told him to drive south on Western Avenue. The defendant then told Reilly to make the first right turn, which led into a dark industrial area at 3230 South Western Avenue. Hernandez handed the defendant a knife, although the defendant could not remember whether it was the pro-throw knife. He also handed the defendant his wallet in order to give the driver the impression that the defendant was going to pay the fare. The defendant then handed the wallet back to Hernandez and grabbed the driver by the neck. He recalled that there was a struggle and that the driver was stabbed when he reached for a knife under his seat. The defendant could not remember whether he stabbed the driver. After he was stabbed, the driver got out of the cab, and the defendant got in the driver’s seat while Hernandez got in the front passenger seat. The cab driver had given the defendant his money during the struggle. The defendant then drove the cab out of the area. He and Hernandez had intended to drive to Idaho but got lost and wound up in Indiana. At the Indiana State line, Hernandez wanted to drive, so he and the defendant switched places.

Dennis Reilly’s body was discovered in the roadway of 3230 South Western Avenue by Officer John Tedesco. He observed a large blood stain in the center of the victim’s face, nose, mouth and left wrist. The autopsy revealed stab wounds to the chest and wrist as well as multiple abrasions on the victim’s face and knees. The stab wound to the chest lacerated the heart.

The defendant and Hernandez were arrested in the cab later that night in Indiana after a high-speed chase which ended when Trooper Michael Greene bumped the cab off the road. Trooper Richard Dick observed what appeared to be blood on the driver’s door. He saw a book with a knife handle sticking out. He also retrieved a red duffle bag. The duffle bag was later opened and found to contain personal items and approximately $7 in nickels, dimes and quarters. At the jail the troopers confiscated the defendant’s clothes and found $77 in one of the defendant’s shoes. Subsequent tests performed by the Chicago police crime laboratory showed that Reilly’s blood was on the defendant’s trousers. Fingerprints lifted from the left inside rear-view mirror of the cab were identified as those of the defendant and Hernandez.

The defendant first called Indiana Trooper Dick, who testified that at approximately 4:35 a.m. on August 17, he read the defendant his rights off an advice-of-rights interrogation form, which the defendant appeared to understand. The defendant refused to sign the bottom portion of the form. Dick also stated that the defendant did not appear to be intoxicated and did not mention that he had been sniffing paint that day.

The defendant’s sister, Angela Reyes, one year older than he, testified about his family life. Their mother ran off after the defendant was born and their father remarried. The father constantly beat the children and yelled at the defendant, calling him names and telling him that he was no good. When the defendant turned 12 or 13, his personality underwent a change, and he became sad, emotionally disturbed and exhibited low self-esteem. He was also getting high on sniffing paint every day, after which he would come home and sit and stare while his father stared at him. He reported to his sister that he saw Jesus and heard humming sounds while he prayed. He dropped out of school in 1978, at the beginning of his second year of high school, because of his fear of street gangs. She testified that her brother’s condition deteriorated, and sometimes after his father yelled at him, the defendant would break windows and doors. He began sleeping in alleys after getting high from paint-sniffing. When the police found him they would take him to a hospital, and from there he would be sent to a mental hospital or a veteran’s hospital. His father refused to let him come home until the police insisted. The defendant’s father and stepmother moved to Texas soon after the defendant’s arrest in this case. When the defendant joined the army and was sent overseas to Germany, his sister lost track of him.

The defendant had entered the army in 1979 and received a general discharge in 1981 for psychological reasons after he was caught sniffing paint and after he had assaulted his sergeant.

Albert Pawlowski, a drug rehabilitation technician at the Veteran’s Administration Medical Center in Chicago, testified that he first met the defendant in February 1982 when the defendant voluntarily entered a rehabilitation program after admitting to sniffing paint and using phencyclidine (PCP) for four to five years. The defendant stayed in the program for two months. Pawlowski next met the defendant over a year later, in July 1983, in the “detox” unit of the Veteran’s Administration Medical Center, where the defendant had gone voluntarily. The defendant remained in the program for seven months. He described the defendant’s behavior as passive, withdrawn and timid, which was characteristic of paint or PCP abusers. However, the defendant was given a high level of responsibility as a cook in the program and was able to follow the rules. He voluntarily left the program February 8, 1984, while in the second phase, although the medical staff advised him that he was not ready to leave.

Dr. Leonard Koziol, a clinical psychologist, evaluated the defendant in May 1986 at the Cook County jail. He reviewed the police reports, psychiatric treatment reports from the defendant’s prior hospital admissions and family history and interviewed the defendant for 41/2 horns. He concluded that the defendant had an organic mental disorder. The defendant’s IQ was 80, 29 points lower than his score in 1979, from which Dr. Koziol concluded that the defendant’s chronic paint-sniffing had resulted in deterioration of his functioning. He also concluded that the defendant had self-destructive behavior, as exhibited by his history of paint-sniffing, frequent inability to care for himself physically and his numerous suicide attempts. On cross-examination Dr. Koziol admitted that the defendant’s alleged suicide attempt where he lay “in front of a train on railroad tracks” but did not kill himself because the train was going too slow could have been an act of “manipulation.” He felt that the defendant’s impairment could have been caused by chronic paint inhalation, the effect of which would include impairment of judgment and impulsive behavior. He was also of the opinion that at the time of the killing, the defendant was incapable of conforming his conduct to the requirements of the law. The defendant was “insane” at the time of the killing, although the defendant’s flow of thought was classified as normal in the Cer-mak Health Service Report performed at the time of the defendant’s arrest. Further, while “at a basic primitive level” the defendant could have had a fundamental awareness of the criminality of his actions, his understanding would have deteriorated when he was under the influence of intoxicants.

Two psychiatrists testified in rebuttal. Dr. Gilbert Bogen, from the Psychiatric Institute, examined the defendant on two separate occasions in April and May 1986. He testified that there were no abnormal findings in the brain scan. He also examined the defendant’s psy-ehological records as well as police reports and statements. He concluded that the defendant suffered from an anti-social personality disorder and substance abuse. Lying was an example of anti-social behavior. Bogen concluded that the defendant was lying when he stated that he had been drinking and sniffing paint at the time of the offense. He disagreed with the defense expert, Dr. Koziol, and stated that the defendant exhibited purposeful behavior in committing the offense, for example, when the defendant pretended to pay for the fare in order not to alarm the driver. Dr. Bogen also concluded that the defendant did not suffer from any mental defect, disease or illness and was “sane” at the time of the offense.

Dr. Werner Tuteur examined the defendant twice in June of 1986. He agreed that the defendant’s EEG and brain scan did not show any abnormalities and that the defendant was not intoxicated at the time of the offense. He saw no mental diseases in the defendant and concluded that the defendant was able to form intent, was aware of the criminality of his acts and could live up to the requirements of the law.

The defendant’s first contention is that all pretrial statements should have been suppressed. His argument hinges on what transpired shortly after his arrest by Indiana police officers.

At about midnight, Indiana State Trooper Richard Dick saw the defendant and Hernandez in the Checker cab at Route 2 and Route 55 in a rural area near Lowell, Indiana. Dick found it peculiar that a City of Chicago cab would be traveling in that remote area. Further observation revealed erratic driving when the cab stopped at a flashing yellow light and also hit the curb in an entrance to Interstate 65. After following the cab for a few more miles, Dick decided to stop it. Once the cab was stopped in a passing lane on Interstate 65, Dick ordered the vehicle onto a grassy area along the road. The driver did not comply with Dick’s orders, and when he approached the cab, the cab took off and continued along 1-65 at a high rate of speed. At that point a chase ensued with speeds reaching up to 100 miles per hour. After Dick radioed for assistance, Trooper Michael Greene also became involved in the chase, and in an effort to stop the cab, performed a “rolling block” with his squad car. The cab struck Greene’s squad car, sending it spinning in front of an on-coming semitrailer. After recovering, Greene rejoined the high-speed chase. The cab next attempted to exit the interstate onto U.S. Route 24. However, Greene caught up with the cab and, using his already damaged squad car, ran the cab into a ditch.

Dick approached the cab and ordered the passengers out. The defendant was sitting in the passenger seat, and when he did not get out of the cab, Dick assisted him. The defendant and Hernandez were placed under arrest at approximately 12:30 a.m. on August 17. Dick testified that he read the defendant his constitutional rights and that the defendant said he acknowledged and understood those rights and wished to waive them. They then engaged in a short conversation. The defendant did not appear to be intoxicated, did not stagger, his eyes were not bloodshot, he did not make any complaint at that time and there was no odor of alcohol on his breath. According to Dick the defendant did not ask to speak to an attorney. He did observe that the defendant had several sores on his legs, which the defendant said had been there for some time. He was taken to a local hospital for treatment of those sores. At that time none of the Indiana police officers had any knowledge of the killing of Dennis Reilly.

At approximately 4:30 a.m., after the defendant was taken to the Jasper County jail, he had a- conversation with Troopers Dick and Ludlow. Ludlow testified that he advised the defendant of his rights, reading from an advice-of-rights interrogation form. The defendant said he did not wish to sign the form and did not wish to make a statement at that time. Questioning ceased, and Ludlow noted on the form that at 4:37 a.m., the defendant “refused to sign” the form. Both troopers then signed the form as witnesses. Dick said the defendant did not ask to speak with an attorney.

Detective Richard Bedran of the Chicago police department was assigned to investigate the murder of Dennis Reilly. In the early morning of August 17, he received a teletype message from Indiana, stating that the authorities there had a Checker cab and two men in custody. After telling the Indiana authorities to keep the two in custody for a homicide investigation, Bedran drove to Jasper County with Detective John Herman.

At approximately 5:30 a.m. the defendant was brought to a conference room. Present were Troopers Dick and Ludlow and Chicago Officers Herman and Bedran. Bedran told the defendant they were investigating the homicide of a cab driver. The defendant was then advised of his rights by Herman, who read from a preprinted police department book. After Herman went through the rights one by one, the defendant stated that he understood each of those rights and wished to answer questions at that time. He said that he had caught a cab with Hernandez and that Hernandez had a knife. While in the cab, he found the knife but he had been drinking and did not remember any more. He said that he did not have any money when he got in the cab and he did not remember anybody stabbing the cab driver. Be-dran observed that during this conversation the defendant was responsive to the questions asked, did not smell of alcohol, did not say he was drunk or high on paint and did not claim to have any problems in answering the questions.

Later that morning, after an extradition hearing, the Chicago police officers left Indiana with the defendant and Hernandez, arriving at Area 3 Violent Crimes headquarters in Chicago at approximately noon. The State’s Attorney’s office was notified, and at approximately 1:30 that afternoon, the defendant was brought into an interview room where he met Assistant State’s Attorney Dane Cleven.

Cleven testified that he introduced himself, saying he was an assistant State’s Attorney. He then advised the defendant of his rights after which the defendant agreed to speak to him. At approximately 3:38 p.m. he had another conversation with the defendant in the presence of Bedran and a court reporter. He again gave the defendant his rights and questioned him concerning the Dennis Reilly killing. During the questioning, which lasted about 10 minutes, the defendant never complained that he needed to use the washroom, nor did he ask for anything to drink. He said that he had no complaint about the way the police had treated him, and he also told Cleven that he was able to read and write. The defendant did not have a problem understanding the questions, was responsive and alert. After the court reporter transcribed his notes, the defendant was given a copy to make corrections. He pointed out several errors which were corrected. Among the errors he corrected were the spelling of his name, the spelling of the word “location,” the name of Hernandez’ girlfriend and the changing of the type of knife used in the offense from “crow-throw” to “pro-throw.” After making corrections he signed the statement.

Officers Bedran and Herman both testified that while in Indiana they did not see the interrogation form which the defendant refused to sign. Neither officer was asked whether he was aware of the fact that the defendant had told Dick that he did not wish to make a statement at that time. Bedran testified that none of the Indiana officers told him that the defendant requested an attorney. He said that at no time during the conversation did the defendant say he did not wish to discuss the case or did he ask to speak with an attorney before proceeding.

The defendant testified that he repeatedly invoked his rights to remain silent and to speak to an attorney before answering questions. He said that he suffers memory loss and delusions as an effect of years of inhaling paint and that he was “pretty sure [he] was passed out” just before he was arrested. He did not remember the first conversation with Dick. After he was taken to the station, he told the Indiana officers he had nothing to say and wanted to speak to an attorney. He also remembered that he refused to sign the waiver form.

He could not recall if Officers Bedran and Herman advised him of his rights, but he did tell them he wanted to speak with an attorney. He did not remember being advised of his rights after arriving in Chicago, but again he asked for an attorney.

He said that he agreed to speak to Cleven, because Cleven told him he was a lawyer and he believed that Cleven was his lawyer. He denied that the police officers were present during the first interview and denied that Cleven gave him his Miranda warnings during the initial interview or identified himself as an assistant State’s Attorney. The second interview, when the court reporter and police officer were present, was not “confidential” and eleven’s demeanor and attitude became less friendly. He read over the typewritten statement, including the portion that stated he had been advised of his rights and that Cleven was an assistant State’s Attorney, and pointed out errors. He said that Cleven and the police officer yelled at him and threatened him. An officer struck him in the head, and he then agreed to sign the statement.

The linchpin of the defendant’s argument is the fact that the defendant initially told the Indiana officers he did not wish to make a statement at that time. He concedes that Michigan v. Mosley (1975), 423 U.S. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321, holds that an initial refusal to answer questions is not an absolute bar to the admissibility of any subsequent statements. But he argues that these facts do not meet the test of Mosley, because in that case the subsequent questioning concerned an offense unrelated to the crime for which the defendant had been first interrogated. The defendant’s argument has been rejected in People v. Foster (1987), 119 Ill. 2d 69, 518 N.E.2d 82, in which the supreme court held that requestioning of a defendant about the same crime does not preclude a finding that an accused’s right to remain silent was “scrupulously honored” as required by Mosley.

Factors to be considered in determining admissibility of a statement made after an initial refusal to make one are whether there was a significant period of time between the defendant’s exercise of his right to remain silent and the requestioning; whether the reques-tioning was preceded by Miranda warnings; and whether a different officer conducted the second questioning. (People v. Faison (1979), 78 Ill. App. 3d 911, 397 N.E.2d 1233.) Voluntariness is determined by consideration of the totality of the circumstances. People v. Fleming (1981), 103 Ill. App. 3d 194, 431 N.E.2d 16.

We do not believe that it may be said, as a matter of law, that the 55-minute interval between the questioning by the Indiana police and questioning by the Chicago police was an insignificant period of time. (The following cases have found the lapse of time to be significant: People v. Ferguson (1981), 102 Ill. App. 3d 702, 429 N.E.2d 1321 (50 minutes); People v. Young (1983), 115 Ill. App. 3d 455, 450 N.E.2d 947 (75 minutes); People v. Pleasant (1980), 88 Ill. App. 3d 984, 411 N.E.2d 132 (90 minutes).) The requestioning was preceded by Miranda warnings, and although the two Indiana troopers were present during the second interrogation, they did not ask any questions. The fact that different personnel conducted the requestioning supports the determination that the defendant's rights were scrupulously honored. People v. Young (1983), 115 Ill. App. 3d 455, 450 N.E.2d 947.

Contrary to the defendant’s assertion, there is no evidence that the police attempted to “wear down” his resistance. There is no evidence that he “lost an entire night’s sleep,” nor any evidence that he was exhausted or complained of lack of sleep. In addition, in refusing to answer the questions of Troopers Dick and Ludlow, the defendant stated that he did wish to do so “at that time.” Such a qualification, it may be inferred, invited subsequent questioning to determine whether the defendant wished to continue to be silent, particularly since the defendant had told Dick, when first arrested, that he wished to waive his rights.

The defendant relies principally on People v. Savory (1980), 82 Ill. App. 3d 767, 403 N.E.2d 118, in which a divided appellate court reversed a murder conviction, holding that the defendant’s statement did not meet the requirements of Miranda and Mosley. Savory involved a 14-year-old defendant who at the outset told the police he did not want to talk. The police convinced him to talk. The police discovered discrepancies in his story and questioned him about them. A polygraph test was given. Again he said he did not want to talk. He was held overnight and reinterrogated the following day. He was read his rights again and denied any wrongdoing. Later that day he was reinterrogated and questioned for over four hours. He was given another polygraph examination. The majority of the appellate court emphasized the defendant’s age as well as the length of the custodial interrogation. Factually, the case is not apposite.

It was the function of the trial judge to determine the credibility of the witnesses. He need not have been convinced beyond a reasonable doubt as to voluntariness of the statements made by the defendant, and his finding of voluntariness will not be disturbed on review unless contrary to the manifest weight of the evidence. We judge that his finding was not contrary to the manifest weight of the evidence.

The defendant next contends that the trial court’s refusal to ask questions of individual jurors constituted reversible error under People v. Zehr (1984), 103 Ill. 2d 472, 469 N.E.2d 1062.

Before the jury selection began, the defendant filed a set of questions to be asked individually of the prospective jurors. They included the following:

“1. If Antonio Reyes decides not to testify on his own behalf, would you hold it against him?
2. Do you understand that Antonio Reyes is presumed to be innocent of these charges against him and that that presumption of innocence continues throughout jury selection, throughout the presentation of evidence, throughout every stage of this trial and into the jury room through deliberations? Do you agree with that law or disagree?
3. Do you understand that Antonio Reyes does not have to offer any evidence in his own behalf, but instead must be proven guilty beyond a reasonable doubt by the prosecution?
4. If you believe at the conclusion of all the evidence in this case and after I have instructed you as to the law that you must apply, that the prosecution has not proved each and every element of the charges against Antonio Reyes beyond a reasonable doubt, can you and will you return to this courtroom with a verdict of not guilty?”

The judge denied the defense motion for individual questioning but held that the proffered questions would be asked of the prospective jurors, although not necessarily in the precise form tendered by the defense.

The judge explained the jury process to the 50 prospective jurors and read the charges against the defendant. He then addressed the entire venire as follows:

“The defendant is charged with the offenses of murder and armed robbery. The defendant has pleaded not guilty. The indictment in this case is the formal method of accusing the defendant of an offense and placing him on trial. It is not any evidence against the defendant, and does not create any inference of guilt. The defendant is presumed to be innocent of the charges against him. This presumption remains with him throughout every stage of the trial and during your deliberations of the verdict, and it is not overcome unless from all the evidence in the case you are convinced beyond a reasonable doubt that the defendant is guilty.
The State has the burden of proving the guilt of the defendant beyond a reasonable doubt, and this burden remains on the State throughout the case. The defendant is not required to prove his innocence.
The fact that a defendant does not testify should not be considered by you in any way in arriving at your verdict. If you are selected to serve on the jury, it is your duty to determine the facts and to determine them only from the evidence in this case. You are to apply the law to the facts and in this way decide the case.”

The judge further addressed the jury, reciting, in effect, standard instructions in all cases, such as the admonition against sympathy and prejudice and concern over the court’s rulings on admissibility of evidence. The judge then asked whether any juror “who by virtue of some political ideology or religious or social position” felt that he would not be able to follow the instructions. Only one prospective juror responded; and the court excused her for cause when she revealed that she did not believe that she could be fair because her brother had been killed. Again, the judge asked the following:

“Is there any juror who by virtue of some political, religious or ideological position would, if the State is unable to prove the defendant guilty beyond a reasonable doubt, in other words if the State fails in its burden of proving the defendant guilty beyond a reasonable doubt, is there any juror who would refuse to sign a not guilty verdict? If so, please raise your hands.
If at the conclusion of the case the State has proven the defendant guilty beyond a reasonable doubt is there any juror who would refuse to sign a guilty verdict? If so, please raise your hands.
Again there is no response to either of those questions.”

The defendant contends, citing Zehr, that the judge erred in not asking whether a “personal belief” would prevent a juror from returning a not guilty verdict even though warranted. In our judgment the procedure followed by the trial judge meets the requirements of People v. Zehr. There is no need, as the defendant suggests, that the jurors be questioned individually. (People v. Fox (1988), 177 Ill. App. 3d 602, 532 N.E.2d 472.) Our reading of Zehr discloses no requirement that questions be put to the jurors expressly in the terms of their “personal” belief. We note also that the questions proffered by the defendant were not couched in terms of “personal” beliefs. Further, we judge that asking jurors whether any “political ideology or religious or social position” would prevent them from following the court’s instruction is sufficiently broad to encompass “personal beliefs” of jurors that would interfere with their ability to follow the court’s instruction. It would appear that the jury understood the judge’s question to include “personal belief” as evidenced by the fact that one of the jurors responded that she could not be fair because her brother had been murdered several years before.

The defendant raises two arguments concerning this sentence. He asks that his sentence be reduced because of his background and rehabilitative potential and because of the disparity between his sentence of natural life and Hernandez’ sentence of 35 years. The defendant concedes that Hernandez did not inflict the fatal stab wound, but he argues that Hernandez was an equal participant in the planning, the commission of the offense and the post-offense actions. Hernandez also had a more serious criminal record, having been convicted of a felony, and he pleaded guilty to intentional murder as well as aggravated kidnapping, while the defendant was found not guilty of intentional murder and he was not tried for aggravated kidnapping.

We decline to reduce his sentence. We have considered the cases cited by the defendant in which courts of review have reduced sentences, and we deem none of them to be persuasive here. We have also considered the remarks of the trial judge before sentencing which reflect his conclusion that the defendant would be a great danger to society if released and that he had throughout displayed a complete lack of remorse. He pointed out “the aggravating factor” that the killing was committed in the course of a robbery, and he found that the defendant was the actual killer. He also noted that the defendant was eligible for the death penalty; but, he declined to impose it, because the defendant had “diminished mental capacity” and a criminal record that was “not extensive.” We cannot say that the trial judge abused his discretion.

Nor can we say that the disparity in the sentences of the defendant and Hernandez is unjustified. It was the defendant who announced beforehand that he planned to get rid of the driver and even kill him. It was he who stabbed the victim even after he had surrendered his wallet. While we are mindful of the cases which have held that a plea of guilty by a codefendant does not, of itself, justify disparate sentences, it is, nonetheless, a factor to be considered. (People v. Ward (1986), 113 Ill. 2d 516, 499 N.E.2d 422.) Where one defendant admits wrong and the other does not, and is subsequently convicted, it cannot be maintained that the defendants are similarly situated with respect to rehabilitative potential. (People v. King (1981), 102 Ill. App. 3d 257, 430 N.E.2d 292.) A reviewing court should not substitute its judgment for that of the trial judge merely because it might have balanced the appropriate factors differently if the task of sentencing had been reserved to it. People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.

In view of the position we take on the propriety of the sentence, it is not necessary to address the State’s argument that the argument had been waived because of the defendant’s failure to raise the disparity argument at his sentencing. Cf. People v. Davis (1988), 173 Ill. App. 3d 300, 527 N.E.2d 552.

For these reasons the judgment of the circuit court is affirmed.

Judgment affirmed.

HARTMAN and BILANDIC, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD R. SHIELDS, Defendant-Appellant.
    First District (2nd Division)
    No. 1—87—1620
    Opinion filed March 28, 1989.

      Paul P. Biebel, Jr., Public Defender, of Chicago (Barbara McClure and James H. Reddy, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Judy L. Groeneveld, and Andrea K. Muchin, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE EGAN

delivered the opinion of the court:

The defendant, Edward Shields, was found guilty of the murder of Richard Benage by a jury and sentenced to a term of imprisonment for 24 years.

The killing of Benage took place on August 16, 1986, during a traffic altercation at the intersection of Granville and Kenmore in Chicago. At the time of the occurrence the defendant was 51 years old; he was handicapped in that he had lost one leg in 1973 and was using a wooden leg. Because of bone infections and adhesions to the knee in his other leg, he could not bend that knee more than 50 degrees. As a result his ability to move was restricted.

On the day of the murder, the defendant, who owned his own white Ford cab, was driving around to buy tires. At approximately 2 p.m. on August 16, 1986, Karen Goodiron, a full-time employee of SAS Auto Delivery, picked up a co-employee, Richard Benage, to go with her to Granville and Kenmore to open up a car door because a man had locked his keys in the car. Benage, who was not scheduled to work that day, rode in the passenger seat. He was wearing jeans and a tee-shirt. He was unarmed and did not appear to her to be intoxicated.

At approximately 2:50 p.m., while Goodiron was driving north on Broadway, a white taxi came from Foster and cut her off. She later identified the defendant as the driver. She saw that he was wearing a tee-shirt with no collar. The cab stopped suddenly in the right-hand lane of traffic as did Goodiron. Benage told Goodiron to go around the cab; she pulled out and ended up to the left of the cab. Both the driver’s side and passenger windows of both her car and the cab were open. The defendant was alone. During the course of driving down the block, Goodiron beeped her car horn as did the defendant; both the defendant and Benage were swearing and “giving each other the finger.”

Both cars stopped at Bryn Mawr for the red light. At that point there were four lanes of traffic going north. Another, car, operated by John Yun, was in the left-hand turn lane; Goodiron’s car was in the lane immediately to the right; both lanes to the right of her car were empty. The cab pulled about eight feet to the rear of her car. The defendant and Benage gave each other the “finger” again, and Benage began to leave her car to see what the problem was. She attempted to restrain Benage but was unsuccessful. She testified she did not detect the smell of alcohol on his breath nor did he otherwise appear to be intoxicated. (Chemical tests later showed that he had a blood-alcohol level of .239.) Benage did not have anything in his hands when he left the car. He went around the back of her car to the driver’s side of the taxi. As Benage approached the cab, Goodiron saw the defendant bend down in the cab. When she looked back after a shot had been fired, she saw the defendant “leaning” away from the driver’s window. John Yun, in another car, testified he saw the victim say something and reach through the open window. He also said that a few seconds later a shot was fired. Neither Goodiron nor Yun saw the actual shooting, because at that moment both were checking the traffic signals to see if the stoplight had turned green. The shot directed their attention back to the cab. Both witnesses testified that after the shot Benage grabbed his chest and he had nothing in his hands.

The defendant then pulled the cab to the right of Goodiron’s car, paused and stared at her and then drove east on Bryn Mawr. Benage was still standing, holding his chest, and blood was coming through his fingers. He told Goodiron, “Do you believe this, he shot me.” Goodiron did not see anything in his hand or near him.

After Goodiron parked the car, Benage walked across the street to the corner. She went to call for assistance, and when she returned, the police were on the scene. She described the shooter as a white man in his late thirties or early forties with grayish hair. She did not describe his clothing, but she told the police that the man was driving a white cab.

Judith Zydowsky, one of the police officers who responded to the report of the shooting, testified that she and her partner, Detective William Agsted, were heading northbound on the 5600 block of Broadway when a call came in over their radio that a man had been shot at Bryn Mawr and Broadway. They arrived at the scene within moments. She noticed a man, bleeding, wearing a tee-shirt, pants and gym shoes lying on the sidewalk. She searched the area after interviewing witnesses and did not recover any weapon. After learning from Goodiron that the vehicle involved was a white taxi, she sent out a “flash message” on the police radio and toured the area looking for the cab.

Officer James Berg testified that he and his partner received a flash message that a man had been shot and that the offender was a white male driving a white cab eastbound on Catalpa. They received a second message giving the license number “9802 taxi-cab.” They received a third message that the cab was a Ford and that the license number was registered to a suburban cab company, The Shield Cab Company. He recalled that he had seen that cab at the Acres Motel on Lincoln Avenue. They went to the motel and saw the cab in the parking lot. After learning from the manager where the cab driver was staying, the officers went to the room, knocked on the door and announced that they were police officers. After no response they obtained a key from the maintenance man and entered the room. The defendant was standing in the middle of the room with his hands up, wearing a white tee-shirt, blue jeans and regular street shoes.

The defendant testified that he had been dressed in a white shirt with a left breast pocket in which he kept a wad of single dollar bills to make change. As he turned on Broadway, he noticed a car in his rear-view mirror which was sounding its horn at him and following closely. The horn-sounding continued for an entire block, and he feared that the driver, whom he did not know to be a woman, was drunk. He found the horn blasting “irritating.” He took his right foot off the gas pedal and allowed the other car to pass him on the right. He said that he did not beep his car horn, and he did not say anything to the persons in the other car. The windows in the other car were closed, and he did not hear the occupant say anything. At Bryn Mawr, the other car stopped for a red light, and the defendant stopped his cab about eight feet behind.

A couple of seconds after he stopped, the passenger in the other car got out and came over to the driver’s window. As he approached the cab, the defendant did not see anything in his hand. The man screamed at the defendant, “You are an asshole. I am going to kill you.” The man reached through the window and threw a punch at him which he ducked. With his left hand, the other man then grabbed the defendant by the left pocket of his shirt, where the defendant kept the wad of bills. At some point the shirt pocket ripped. The defendant used his left arm to try to pull the other man’s arm away, and they struggled for no more than five seconds. Unable to break free, the defendant reached for a cigar box on the seat next to him which contained his gun. When he got his gun, the defendant saw that the other man was pointing a gun at him as well. He “froze or panicked” for an instant and then fired one shot at the other man’s shoulder. The other man, stunned, released the defendant and stepped back.

Contrary to the testimony of Yun and Goodiron, the defendant said the other man did not clutch his chest. Instead he kept his arms, including his “gun hand” at his side. In fear for his safety the defendant left the area. He turned right on Bryn Mawr, running the red light. He drove to 6400 North Washtenaw, where he kept another car. He picked up a tire from that car’s trunk and left the gun in that car. He stopped to get gas and drove to the Acres Motel, where he lived. He took off the tom shirt, still wearing the tee-shirt underneath. Only minutes after reaching his home, the police arrived and arrested him.

The defendant raises a number of assignments of error, and we judge that one of them requires that this case be remanded for a new trial. After this case was tried, the Illinois Supreme Court decided People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141, and held that the voluntary manslaughter instruction given by the court was improper and required a new trial. The State concedes that the voluntary manslaughter instruction based on belief of justification given in this case was subject to the same objection as that in Reddick, but, the State argues, Reddick should be given only prospective application. The State also concedes that this court has recently held that Reddick is to be given retroactive application (People v. Brooks (1988), 175 Ill. App. 3d 136, 529 N.E.2d 732), but, the State further argues, Brooks was incorrectly decided and we should not follow it. (The supreme court denied the State’s petition for leave to appeal in Brooks on February 1, 1989.) After reviewing the State’s argument, we adhere to the views expressed in Brooks and remand this case for a new trial.

We will discuss the other assignments of error, because the questions may recur in another trial. The defendant contends that the evidence established, as a matter of law, that he acted in self-defense when he shot Benage or, alternatively, that he was guilty, at most, of voluntary manslaughter based on provocation. We reject both arguments. The evidence raised a question of fact whether the defendant acted in self-defense, and there is no evidence to support a finding that the defendant was provoked to kill Benage.

Our holding that there is no evidence to support such a finding is also an answer to the defendant’s next contention that the court should have instructed the jury on manslaughter based on provocation. The instruction was properly denied for the same reason.

The defendant also argues that his testimony, if believed, established that Benage committed a burglary, since he attempted to commit an aggravated battery on the defendant in his vehicle on a public way. Therefore, the court erred in refusing to instruct the jury on the elements of burglary and aggravated battery. The defendant’s argument is based on the self-defense instruction which provides, in part, that a person may use force likely to cause death or great bodily harm to prevent the commission of a forcible felony. A similar argument was made and rejected in People v. Hanson (1985), 138 Ill. App. 3d 530, 485 N.E.2d 1144, and People v. Chamness (1984), 129 Ill. App. 3d 871, 473 N.E.2d 476. The court did not err in refusing the instructions on burglary and aggravated battery.

The defendant also contends that reversible error was committed when he was barred from introducing evidence that Benage made a statement to the physician who treated him at the hospital that he had consumed a 12-pack of beer and a half pint of whiskey before the shooting. The failure of the court to admit this statement was not reversible error, since the court allowed the chemical results of Benage’s blood chemistry to show an alcoholic content of .239 and instructed the jury that any person showing a blood-alcohol level in excess of .10 is presumed to be legally intoxicated. However, on retrial, we believe that the evidence of the statement made to the physician should be admitted. People v. Gant (1974), 58 Ill. 2d 178, 317 N.E.2d 564.

The last argument made by the defendant is that the court erred in not suppressing Goodiron’s identification. He contends that the lineup was suggestive because of the marked physical differences between him and the other participants. He was the only person in his 50’s, while the others were 10 to 20 years younger. He was the only one with gray hair, and he wore faded blue jeans while the others wore dark trousers; he had a crew-neck tee-shirt while the other persons, who were police officers, had vee-neck shirts; and he was the only person with a prison identification number on his hand. All of these differences go to the weight of the identification and not its admissibility. People v. Johnson (1982), 104 Ill. App. 3d 572, 432 N.E.2d 1232.

We are puzzled by the advancement of this argument since the defendant admitted that he was the person who shot Benage. Identification was no longer an issue in the case. In any event, we conclude that the identification testimony of Goodiron was properly admitted.

Since the voluntary manslaughter instruction based on belief of justification was improperly given, the judgment of the circuit court is reversed and remanded for a new trial.

Judgment reversed and remanded.

HARTMAN and SCARIANO, JJ., concur.