text:
    HENRY L. BURKE, Plaintiff-Appellee, v. 12 ROTHSCHILD’S LIQUOR MART, INC., Defendant-Appellee (The City of Chicago, Defendant-Appellant).
    First District (2nd Division)
    No. 1-89-0237
    Opinion filed January 15, 1991.

      Kelly R. Welsh, Corporation Counsel, of Chicago (Ruth M. Moscovitch and Jean Dobrer, Assistant Corporation Counsel, of counsel), for appellant.
    Pavalon & Gifford, of Chicago (Eugene I. Pavalon, Gary K. Laatsch, and Richard L. Kumlin, of counsel), for appellee.
   PRESIDING JUSTICE SCARIANO

delivered the opinion of the court:

Plaintiff was injured when he fell and struck his head while being forcibly ejected from a store owned by defendant 12 Rothschild’s Liquor Mart, Inc. (Rothschild). After several Chicago police officers arrived, he was arrested and thrown into a paddy wagon. Plaintiff filed this action seeking recovery for his injuries, which rendered him a quadriplegic, and the jury returned a verdict against both defendants in the amount of $7,487,000. The city appeals, charging that three erroneous evidentiary rulings and two regarding damages were made by the trial court. We affirm.

The case was tried, beginning September 20, 1988, on counts I and V of the complaint; count I charged Rothschild with negligence, and count V charged the city with willful and wanton misconduct. Shortly before trial, Rothschild and the city both filed counterclaims against each other seeking contribution based on the Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1987, ch. 70, par. 301 et seq.).

Plaintiff testified that his injuries occurred on November 20, 1977, when he became involved in an altercation with the manager of Rothschild’s store, who attempted to eject him forcibly from the premises. As the manager was shoving plaintiff toward the door, plaintiff’s foot caught on a broken tile and he fell forward, striking his head on the door. Plaintiff testified that after lying on the floor several minutes, he lost consciousness. When he awoke a short time later, two Chicago police officers had arrived. They asked him to get up, and when plaintiff responded that he could not because he was hurt, he was picked up in a rough manner by the officers and thrown into a paddy wagon. He received equally rough treatment when he was removed from the vehicle and again lost consciousness after he was dropped to the ground. Much of this testimony was confirmed by several other occurrence witnesses. Plaintiff was caused serious and irreversible damage to his spinal cord.

The city presented the testimony of the two arresting officers which conflicted sharply with plaintiff’s version of the facts. The senior officer testified that after he arrived on the scene, he spoke with the store manager, who had called the police. When he observed plaintiff lying on the floor he asked him several questions in order to obtain the information he needed to prepare his arrest report. Plaintiff said nothing at this time regarding his injuries, but told the police that they would have to carry him away if they were going to lock him up. The officer testified that plaintiff did not appear to be seriously injured, although he did not move while lying on the floor. Several minutes later, just as a paddy wagon was arriving, plaintiff told the officer he was hurt, and the officer relayed this information to the two paddy wagon officers. He heard them ask plaintiff to get up, but he could not hear plaintiff’s response. The paddy wagon officers then lifted plaintiff off the ground, carried him into the wagon, and drove away. This testimony was essentially corroborated by the second arresting officer.

During the instructions conference, plaintiff moved the court to rule as a matter of law that his conduct did not contribute to any injuries caused by the city’s misconduct and that the jury be instructed not to reduce the city’s liability based on plaintiff’s negligence. The judge granted the motion, and he later advised the jury of his ruling. The judge also refused a number of instructions proffered by the city directing that its damages be reduced by plaintiff’s own negligence.

The first of three completed verdict forms returned by the jury in favor of plaintiff stated that his total damages against both defendants were $7,487,000. The second apportioned damages at 65% against Rothschild and 35% against the city. In the third verdict form, the jury determined that plaintiff was 32% negligent as compared to Rothschild’s fault, and fixed a total of $3,309,254 damages recoverable against Rothschild. This figure was apparently arrived at by re-during $7,487,000 first by 35%, the city’s share of damages, and then by an additional 32%, the plaintiff’s negligence. The court entered judgment on the verdicts.

In its post-trial motion, the city contended for the first time that defendants were not joint tortfeasors and that it was liable for only 35% of the total damages; in the alternative, it claimed the trial judge erred in ruling that the city’s liability could not be reduced by plaintiff’s negligence. Plaintiff asserted in oral argument on the motion that the jury was properly instructed to find joint and several liability, and that the apportionment figures related solely to defendants’ counterclaims against each other for contribution. Plaintiff also filed his own post-trial motion asking the court to amend the verdict forms to reflect damages assessed against Rothschild as $5,091,160, the full $7,487,000 reduced by 32%, the percentage of plaintiff’s negligence.

The trial judge denied the city’s motion and granted plaintiff’s post-trial motion on November 28, 1988. Plaintiff’s attorney was asked to draw up a judgment order reflecting the court’s ruling. After additional oral argument on December 5, 1988, the judge approved plaintiff’s draft order and entered a nunc pro tunc order effective October 4, 1988, which provided that judgment should be entered against both defendants in the amount of $7,487,000; that based on the defendants’ contribution actions, damages should be apportioned 65% to Rothschild and 35% to the city; and that Rothschild’s damages should be reduced by plaintiff’s own negligence (32%), thus limiting recovery against Rothschild to $5,091,160. A second order was entered making corresponding changes in the jury verdict forms.

The city filed a notice of appeal on January 4, 1989, appealing from both orders. Rothschild has neither appealed nor appeared, nor has it filed a brief in this appeal.

I

We first address the three evidentiary issues raised by the city. On September 19, 1988, just prior to the start of trial, the city filed a motion in limine to bar the testimony of Judith Sher on the ground that she had not been disclosed by plaintiff as an expert witness, as required by Supreme Court Rule 220 (107 Ill. 2d R. 220). Counsel for the city stated that on September 13, 1988, plaintiff submitted Sher’s name for the first time and advised defendants that she would testify as a fact witness regarding the ongoing costs of plaintiff’s medical care and rehabilitation treatment; counsel further represented that Sher’s deposition was taken some time after that date. The judge denied the city’s motion on the ground that Sher was a fact witness, and that, therefore, Rule 220 did not apply. The judge also denied the city’s motion for the continuance it sought in order to permit it to obtain additional information regarding the costs of plaintiff’s continuing nursing care, which was the subject of Sher’s testimony. Sher testified at trial on September 27,1988.

Rule 220(a)(1) defines an expert as “a person who, because of education, training or experience, possesses knowledge of a specialized nature beyond that of the average person on a factual matter material to a claim or defense in pending litigation and who may be expected to render an opinion within his expertise at trial.” (107 Ill. 2d R. 220(a)(1).) The rule does not reach a witness’ fact testimony, which relates to things he saw, things he did, or, as appropriate, things he was told. (In re Marriage of Hartian, (1988), 172 Ill. App. 3d 440, 526 N.E.2d 1104, appeal denied (1988), 123 Ill. 2d 558, 535 N.E.2d 401; Fischer v. G & S Builders (1986), 147 Ill. App. 3d 168, 497 N.E.2d 1022, appeal denied (1987), 113 Ill. 2d 573, 505 N.E.2d 352.) The city contends Sher was clearly an expert within the meaning of Rule 220 and that allowing her testimony was reversible error.

Even if we were to agree that Sher was an expert within the meaning of Rule 220, reversal would not be required because the city has failed to demonstrate how the ruling prejudiced its case. (Redmon v. Austin (1989), 188 Ill. App. 3d 220, 543 N.E.2d 1351.) The city argues that there was substantial prejudice here because, as in Phelps v. O’Malley (1987), 159 Ill. App. 3d 214, 511 N.E.2d 974, appeal denied (1987), 117 Ill. 2d 553, 517 N.E.2d 1095, it had no prior knowledge that Sher was to be called as a witness, and it did not have adequate time to investigate the testimony she gave in her pretrial deposition. These contentions are not supported by the record. Contrary to statements made by the attorney for the city, the record indicates that a discovery deposition of Judith Sher was taken on August 16, 1988, and that counsel for the city was present. Sher did not testify at trial until September 27, 1988, over one month later. The city thus had ample opportunity to investigate Sher’s testimony and obtain appropriate rebuttal witnesses, and cannot successfully claim unfair surprise.

II

The second disputed evidentiary ruling involves the denial of a motion in limine to bar plaintiff from introducing at trial a “day in the life” film or videotape of the plaintiff, on the ground that plaintiff did not follow the proper procedures in preparing the film. It was argued that the city was not given advance notice of the filming and was not present when it was being made and that it was not permitted to view material edited out of the final product used at trial.

The city’s contention that it did not have an opportunity to view the entire raw footage taken was disputed by plaintiff’s attorney at trial. When the attorney for the city was pressed by the judge to enunciate the nature of the city’s objection, he conceded that the lack of notice and the denial of an opportunity to be present at the filming were the real problem. We address the city’s argument on appeal within this context.

After the appellate briefs in this case were filed, this court decided Cisarik v. Palos Community Hospital (1989), 193 Ill. App. 3d 41, 549 N.E.2d 840, appeal allowed (1990), 113 Ill. 2d 558, 553 N.E.2d 394, which reversed a trial court determination relied upon by the city here. The trial judge had entered a pretrial order requiring that plaintiff give advance notice of the making of a day-in-the-life film and permit defendants to attend, that the film should be preserved in its entirety, and that the film should be made available to all defendants. Plaintiff’s attorney was subsequently cited for contempt when she failed to comply with the terms of the order. In reversing on appeal, we noted that such a film will be admitted at trial only if it passes the “rigorous safeguards dealing with its authenticity and relevance” (193 Ill. App. 3d at 45, 549 N.E.2d at 842), and held that permitting defense counsel to be present at the filming would add nothing to these protections. The opinion cited with approval several earlier decisions holding that such films are admissible as long as their probative value outweighs any prejudice to the defendant and there are no demonstrated improprieties in the film’s content or production. Georgacopoulos v. University of Chicago Hospitals & Clinics (1987), 152 Ill. App. 3d 596, 504 N.E.2d 830; Barenbrugge v. Rich (1986), 141 Ill. App. 3d 1046, 490 N.E.2d 1368; see also Roberts v. Sisters of Saint Francis Health Services, Inc. (1990), 198 Ill. App. 3d 891.

We reaffirm today our reasoning in Cisarik and hold that since the city has not come forward with any asserted impropriety in the film’s content or production, admitting it into evidence was not improper. Although the record does not establish how much time the city had to review the film before trial, this would not be enough to justify reversal of the trial judge’s evidentiary ruling, which must be upheld absent a clear abuse of discretion. Behrstock v. Ace Hose & Rubber Co. (1986), 147 Ill. App. 3d 76, 496 N.E.2d 1024; Missouri Portland Cement Co. v. United Cement, Lime, Gypsum & Allied Workers International Union, Division of Boilermakers, AFL-CIO, Local No. 438 (1986), 145 Ill. App. 3d 1023, 496 N.E.2d 489.

Ill

The third evidentiary issue in dispute is a ruling by the trial judge barring the city from using prior deposition testimony to impeach a witness. Walter Small, who was called as an occurrence witness by the city, testified as follows on direct examination:

“Q. [Attorney for the city]: You said Henry [plaintiff] — when Henry was pushed, what happened to him?
A. He fell into the door.
Q. I’m sorry, his head hit the door?
A. That’s right.
Q. And what happened to his neck? Did it spring back when he hit the door?
ATTORNEY FOR THE PLAINTIFF: Objection, your Honor. I’m going to object to this. This is just terribly improper again.
THE COURT: Objection sustained. The jury will disregard it.
Q. [Attorney for the city]: When his head hit the door, what happened to his neck?
A. I didn’t see his neck. I seen when his head hit the door, he went down.”

Counsel for the city, in argument held outside the presence of the jury, contended that he should have been permitted to use a prior inconsistent statement made by Small at his discovery deposition. The pertinent portion of the deposition testimony was read into the trial record:

“Q. [Attorney for the city]: His head hit — what part of his head hit ***?
A. I don’t know exactly what part of his head.
Q. When you say he flew back—
A. I knew his head hit.
Q. You also say he flew back; is that right?
A. That’s right.
Q. When you say he flew back, you indicated that your head was going back to your shoulders; is that right?
A. Uh-huh.
Q. Did it look like his head snapped back as he fell back?
A. Yeah. The way he fell, it looked like his neck was broken or something.”

Counsel for the city asserted that impeachment was proper because it shed light on the critical issue of the extent of plaintiff’s injuries before the police arrived.

In response, plaintiff’s attorney pointed out that a short time later in the same discovery deposition, Small said he had made a mistake, and that he had not actually seen plaintiff’s head snap back:

“Q. [Attorney for the city]: Now, are you saying that you made a mistake when you said his head went back after it hit the door?
A. I’m not entitled to a mistake? I’m trying to ***.
Q. I’m asking you now, did you make a mistake when you ***pj
A. Yeah.
Q. So his head did not go back the way you had indicated that it had gone, is that right?
A. Okay.
Q. Is that what you’re saying?
A. Right.”

After hearing the offer of proof, the trial judge refused to permit the city to use the deposition testimony for the purpose of impeachment.

Impeachment of a witness by means of a prior inconsistent statement is permissible only where the statement has a reasonable tendency to discredit testimony on a material matter. (Friedman v. Park District (1986), 151 Ill. App. 3d 374, 386, 502 N.E.2d 826, 835; People v. Davis (1982), 106 Ill. App. 3d 260, 435 N.E.2d 838.) The inconsistency must be substantial and not merely trivial or collateral. (Zelinski v. Security Lumber Co. (1985), 133 Ill. App. 3d 927, 479 N.E.2d 1091.) Further, “[t]he determination of whether a witness’ prior testimony is inconsistent with his present testimony is left to the sound discretion of the trial court.” People v. Flores (1989), 128 Ill. 2d 66, 87-88, 538 N.E.2d 481, 489, cert. denied (1990), 497 U.S. _, 111 L. Ed. 2d 799, 110 S. Ct. 3291; see also Friedman, 151 Ill. App. 3d at 386, 502 N.E.2d at 835.

Applying these principles, we hold that the city has failed to make a showing sufficient to establish an abuse of judicial discretion. The inconsistent statement which the city sought to use was corrected by the witness later in the same discovery deposition when he stated that he had been mistaken in his earlier testimony. Small’s testimony at trial was consistent with his corrected deposition statement. On these facts, we will not disturb the ruling of the trial court.

IV

The city next raises two issues relating to damages, but before we address these contentions, it is necessary to vacate the contribution judgments entered below as void since void judgments can be vacated on a reviewing court’s own initiative. (Barger v. Slayden (1952), 411 Ill. 237, 103 N.E.2d 645; Concerned Boone Citizens, Inc. v. M.I.G. Investments, Inc. (1986), 144 Ill. App. 3d 334, 339, 494 N.E.2d 180, 182.) In this case, both the city and Rothschild based their counterclaims for contribution on section 2 of the Contribution Among Joint Tortfeasors Act (the Act) (Ill. Rev. Stat. 1987, ch. 70, par. 302). While section 1 of the Act expressly states that the Act does not apply to causes of action accruing before March 1, 1978 (Ill. Rev. Stat. 1987, ch. 70, par. 301), the injuries complained of here occurred on November 20, 1977. The contribution judgments awarded thus exceeded the statutory authority of the court and are therefore void. R. W. Sawant & Co. v. Allied Programs Corp. (1986), 111 Ill. 2d 304, 489 N.E.2d 1360; City of Chicago v. Fair Employment Practices Comm’n (1976), 65 Ill. 2d 108, 357 N.E.2d 1154.

However, this conclusion does not invalidate the entire judgment entered in favor of plaintiff. “Where parts of a decree are clearly separable, only that part which is in excess of the authority granted to the court is void; and the remainder is valid.” (Chapman, Mazza, Aiello, Inc. v. Ace Lumber & Construction Co. (1967), 83 Ill. App. 2d 320, 335, 227 N.E.2d 562, 570; see also 46 Am. Jur. 2d Judgments §693 (1969).) We believe the contribution judgments are indeed sever-able from plaintiff’s judgment; consequently, we go on to address the city’s assertions of error in light of this holding.

The city first argues that the trial court incorrectly entered a joint and several judgment on the verdict, that it was instead a successive tortfeasor, and that it is therefore liable for only 35% of plaintiff’s total damages based on the jury’s apportionment. However, we need not consider whether the city is a successive tortfeasor and must affirm the decision of the trial court, for it is well established that “a party waives his right to complain of an error where to do so is inconsistent with the position taken by the party in an earlier court proceeding.” (Auton v. Logan Landfill, Inc. (1984), 105 Ill. 2d 537, 543, 475 N.E.2d 817, 818.) Where no objection was made to a jury instruction which is claimed on appeal to be improper, and no alternative instruction was offered, the party is bound by its acquiescence in the instruction. McKinney v. Coca Cola Bottling Co. (1988), 170 Ill. App. 3d 362, 524 N.E.2d 657; Young v. Cerniak (1984), 126 Ill. App. 3d 952, 467 N.E.2d 1045; Grunsten v. Malone (1984), 125 Ill. App. 3d 1068, 466 N.E.2d 1209.

Here, it is evident from the record that the city offered no objection to the submission of the case to the jury on the basis of joint arid several liability. The critical verdict form returned by the jury, which was submitted by plaintiff, stated: “We, the jury, find for the plaintiff and against the defendants, 12 ROTHCHILDS LIQUOR MART, INC., a corporation and CITY OF CHICAGO, a municipal corporation, and assess the plaintiff’s damages as follows ***,” followed by an itemization of damages and the total amount thereof. Although the city submitted alternate verdict forms which it contended were more comprehensible and better organized, the basis of its disagreement went to form rather than to substance. More important, the record is bereft of any rejected jury instructions, or any that were even preferred, which would have indicated that the city had attempted to submit the case on a successive tortfeasor theory; nor does the city make such a claim. Further, on two occasions during the instructions conference, plaintiff’s attorney argued that both defendants were jointly and severally liable, and that the apportionment verdict forms proffered by defendants and ultimately submitted to the jury pertained solely to the defendants’ counterclaims based on the Contribution Act. This position was not disputed by the city. In fact, it was not until argument on the post-trial motions that the city first claimed that the jury had not intended to impose joint and several liability.

We recognize that the jury was read the following instruction:

“The instructions governing this case are as to each defendant, insofar as they are applicable to it, to the same effect as if it were the only defendant in this action and regardless of whether reference is made to defendant or defendants, either singular or plural form. You will decide each defendant’s case separately as if each were a separate lawsuit.”

However, this language, patterned after IPI Civil 2d No. 41.03 (Illinois Pattern Jury Instructions, Civil, No. 41.03 (2d ed. 1971)), is not sufficient to establish that the case was not submitted to the jury on a joint and several liability theory. The primary purpose of this instruction is merely to avoid needless repetition where the same issue and questions of law are applicable to two or more defendants. (Wanner v. Keenan (1974), 22 Ill. App. 3d 930, 317 N.E.2d 114.) It cannot be used to remedy defendant’s failure to object to plaintiff’s verdict form requesting a finding of joint and several liability.

We are also constrained to point out that both parties have demonstrated little consistency and considerable confusion over the basis of liability in this case. Although the city’s opening brief characterizes defendants as joint tortfeasors, it argues in its reply brief that plaintiff’s reference in his response brief to defendants as consecutive tortfeasors is a concession requiring this court to overturn the joint and several liability verdict. We do not believe plaintiff’s “concession” leads to the conclusion urged by the city, for, at oral argument, plaintiff represented his position to be that joint and several liability is proper because defendants’ independent tortious acts caused a single indivisible injury, citing Harris Trust & Savings Bank v. Ali (1981), 100 Ill. App. 3d 1, 425 N.E.2d 1359, appeal denied (1982), 91 Ill. 2d 552. Whatever the merits of this contention may be, inasmuch as this case was submitted to the jury by all of the parties on a joint and several liability theory, as we have noted above, they are all bound by their prior acquiescence.

The City also maintains in the alternative that if joint and several liability is found to apply, it is entitled to a reduction in damages based on plaintiff’s own negligence, a contention the city pleaded as an affirmative defense. During the instructions conference, the city cited State Farm Mutual Automobile Insurance Co. v. Mendenhall (1987), 164 Ill. App. 3d 58, 517 N.E.2d 341, for the proposition that, even if the city is found guilty of willful and wanton misconduct, it can still have its damages reduced by the plaintiff’s simple negligence. It further asserted that the jury should be permitted to determine whether plaintiff’s conduct in failing to inform the police of his condition and to request medical attention constituted a failure to exercise ordinary care. Plaintiff argued that he was entitled to a ruling that he could not be held to be guilty of contributory negligence with respect to the city as a matter of law, and that, in the alternative, his failure to act was not the proximate cause of his injuries. The judge passed the particular issue at that time.

Later in the discussion over jury instructions, plaintiff moved the court to strike the city’s affirmative defense and to direct the jury that it was not permitted to reduce the city’s liability by plaintiff’s negligence, voicing the same arguments made previously. The city again argued that the question could not be decided as a matter of law. It further contended that a reduction based on plaintiff’s negligence was permissible on the ground that any aggravation of plaintiff’s injuries caused by the city would not have occurred absent plaintiff’s initial misconduct in initiating the fracas. But the effect of plaintiff’s charge of willful and wanton misconduct on the city’s position was never squarely addressed in this latter part of the conference. The judge granted plaintiff’s motion and orally informed the jury immediately after the instructions conference that he had ruled as a matter of law that plaintiff was not contributorily negligent with respect to the city.

On appeal, the city urges that since only one judgment was entered against defendants as joint tortfeasors, both are entitled to a reduction for plaintiff's own negligence. However, this argument completely ignores the critical fact that the city has been found guilty of willful and wanton misconduct. Although plaintiff does not specifically address this issue, and it does not appear to have been considered by the trial court, “we can sustain the decision of the circuit court on any grounds which are called for by the record regardless of whether the circuit court relied on the grounds and regardless of whether the circuit court’s reasoning was correct.” Bell v. Louisville & Nashville R.R. Co. (1985), 106 Ill. 2d 135, 148; Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387; Monarski v. Greb (1950), 407 Ill. 281, 291.

Professors Prosser and Keeton, after citing the well-established rule that the ordinary contributory negligence of the plaintiff may not be “set over” against a defendant’s conduct which “is actually intended to inflict harm upon the plaintiff,” go on to state that

“[t]he same is true of that aggravated form of negligence, approaching intent, which has been characterized variously as ‘willful,’ ‘wanton,’ or ‘reckless,’ as to which all courts have held that ordinary negligence on the part of the plaintiff will not bar recovery. Such conduct differs from negligence not only in degree but in kind, and in the social condemnation attached to it. *** It is perhaps more a form of comparative fault, where the court is refusing to set up the lesser fault against the greater.” W. Keeton, Prosser & Keeton on Torts §65, at 462 (5th ed. 1984).

Prior to the adoption of comparative negligence in this State, numerous decisions held that the defense of contributory negligence was not available to a defendant guilty of willful and wanton misconduct. (See, e.g., Spring v. Toledo, Peoria & Western R.R. Co. (1977), 69 Ill. 2d 290, 371 N.E.2d 621; Zank v. Chicago, Rock Island & Pacific R.R. Co. (1959), 17 Ill. 2d 473, 161 N.E.2d 848.) The doctrine remained unaffected when comparative negligence was adopted by our supreme court in Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886. As Professors Polelle and Ottley have commented, “[t]he only issue decided by the Illinois supreme court in Alvis was that in actions based on negligence, the doctrine of contributory negligence should be abolished and replaced by the pure form of comparative negligence. ‘Other collateral issues,’ such as the application of the decision to willful and wanton conduct, *** were left to future cases.” M. Polelle & B. Ottley Illinois Tort Law 653 (1985).

The rationale for continuing to regard a plaintiff’s contributory negligence as no defense to an action based upon a defendant’s willful and wanton misconduct, as we have in the past, is supported by a strong trend in recent decisions emphasizing the more culpable mental state of these defendants. Thus, willful and wanton misconduct has been described by our supreme court as “either a deliberate intention to harm or an utter indifference to or conscious disregard for the welfare of the plaintiff.” (Adkins v. Sarah Bush Lincoln Health Center (1989), 129 Ill. 2d 497, 518, 544 N.E.2d 733, 743.) It has similarly been defined as “that act intentionally done or that act taken, under the circumstances known, in reckless or conscious disregard of probable injurious consequences.” (Albers v. Community Consolidated No. 204 School (1987), 155 Ill. App. 3d 1083, 1085, 508 N.E.2d 1252, 1254.) In contrast, negligence has been described in much more moderate terms as the “failure to do something which a reasonably careful person would do, or doing something which a reasonably careful person would not do under circumstances similar to those shown by the evidence.” Hames v. Catholic Bishop (1968), 41 Ill. 2d 336, 339, 243 N.E.2d 203, 205; see also Blackburn v. Johnson (1989), 187 Ill. App. 3d 557, 561, 543 N.E.2d 583, 586, appeal denied (1989), 128 Ill. 2d 661, 548 N.E.2d 1066; Burkee v. Mack Chicago Corp. (1981), 102 Ill. App. 3d 688, 690, 430 N.E.2d 255, 256; Illinois Pattern Jury Instructions, Civil, No. 10.01 (3d ed. 1990).

These distinctions between ordinary negligence and willful and wanton misconduct lead us to conclude that the City should be barred from availing itself of plaintiff’s negligence as a defense. The City does not contend on appeal that the jury’s finding of willful and wanton misconduct is not supported by the evidence; indeed, it does not challenge the jury’s finding of liability at all. The qualitative difference between the City’s culpability and that of the plaintiff cannot be disregarded.

We note that the City correctly advised the trial judge that one recent decision of another district of this court has held that a defendant who is found to be guilty of willful and wanton misconduct is entitled to a reduction based on plaintiff’s negligence. (State Farm Mu tual Automobile Insurance Co. v. Mendenhall (1987), 164 Ill. App. 3d 58, 517 N.E.2d 341.) The Mendenhall court stated, “[bjecause of the possible small differences between negligence and wilful and wanton negligence, it appears the fact finder’s ability to prorate the damages between plaintiff and defendant best serves justice and is most consistent with the reasons for comparative negligence.” (164 Ill. App. 3d at 61, 517 N.E.2d at 344.) We respectfully disagree with our colleagues of the fourth district. Indeed, a recent Federal decision has criticized Mendenhall and opined that this “critical premise of the decision may be shaky” in light of the emerging trend in Illinois law. (Wassell v. Adams (7th Cir. 1989), 865 F.2d 849, 853-54.) As noted above, we believe the differences between the two theories of liability to be quite substantial indeed.

Finally, since our supreme court chose in Alvis to ignore a plaintiff’s contributory negligence when it adopted a system of comparative fault in products liability cases based on strict liability, it would appear to be eminently reasonable to reach the same result in the case of willful and wanton conduct. See M. Polelle & B. Ottley, Illinois Tort Law 653 (1985).

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

Affirmed.

HARTMAN and DiVITO, JJ., concur.

      We note that the motion contained an error in arithmetic in that it arrives at a damages figure of $5,091,560. This error was subsequently discovered and corrected to $5,091,160.

      Henry Burke died on June 23, 1989, and his mother has been substituted as plaintiff and appointed special administrator pursuant to section 2 — 1008 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1008). For the sake of clarity, we will refer to Henry Burke as plaintiff.


source: Caselaw Access Project

author: JUSTICE DiVITO

license: Public Domain

text:
    ANSVAR AMERICA INSURANCE COMPANY, Plaintiff-Appellant, v. GULLI HALLBERG, as Special Adm’r of the Estate of William Hallberg, Defendant-Appellee.
    First District (2nd Division)
    No. 1-90-0636
    Opinion filed January 15, 1991.

      Judge & Knight, Ltd., of Park Ridge (Jay S. Judge and Martin D. Hoke, of counsel), for appellant.
    James E. Ocasek and Robert J. Cooney, Jr., both of Cooney & Conway, of Chicago, for appellee.
   JUSTICE DiVITO

delivered the opinion of the court:

Plaintiff Ansvar America Insurance Company (Ansvar) filed a declaratory judgment action against defendant William Hallberg (Hallberg) seeking a determination of insurance coverage. Both parties filed motions for summary judgment. The circuit court granted Hallberg’s motion and denied Ansvar’s. Ansvar now appeals and presents for our determination whether the insurance policy provision in this case entitled “Additional Duty,” which required prompt forwarding of suit papers, was a condition precedent to the insurer’s obligation to provide coverage to an additional insured passenger seeking underinsured motorist coverage. We conclude that it was not and affirm the judgment of the circuit court.

On June 24, 1984, Hallberg was a passenger in an automobile owned and operated by Thomas Bergus. Bergus’ auto was involved in a collision with two other vehicles, operated by Oh Kyong Kim and Dennis O’Dea. Bergus was insured by Ansvar under a policy which was in effect on the date of the collision. That policy included underinsured motorist coverage.

Ansvar sent a letter to Hallberg on July 17, 1984, informing him that it was the insurer for Bergus and that it would pay for his medical expenses. It sent him another letter on November 19, 1984, stating that it would reimburse him to the extent of the policy, which was $7,500. On four separate occasions over the next 10 months, Hallberg wrote Ansvar complaining that his medical expenses had not been paid as promised. Hallberg then filed a complaint at law against Kim on February 5, 1985. He amended it on November 12, 1985, to add O’Dea as a defendant.

On June 29, 1986, Ansvar filed a subrogation claim against Kim as subrogee of Bergus in the circuit court’s municipal division. That claim was dismissed on July 22 because an identical claim was pending in the law division. Hallberg’s complaint against Kim was eventually dismissed with prejudice on July 24, 1986, pursuant to a settlement agreement awarding Hallberg Kim’s insurance policy limit.

Hallberg’s attorney then sent a letter to Ansvar on January 14, 1987, advising that he represented Hallberg and making a demand for medical payments under the Bergus policy. The letter included proof of loss indicating settlement with Kim. Pursuant to that letter, Hallberg received $7,500 under the medical payments coverage portion of the Bergus policy. On February 17, 1987, Hallberg’s attorney notified Ansvar by letter of his underinsured motorist claim under the Bergus policy. Ansvar responded on March 17, 1987, that the underinsured motorist claim was premature because O’Dea’s policy limit had not yet been received; Hallberg was told that once the policy limit had been received, he was to again notify Ansvar.

O’Dea’s attorney then offered Hallberg $1,000 to avoid future litigation costs, but maintained that the suit against O’Dea was frivolous and threatened to file a motion for sanctions against Hallberg and his attorney. Hallberg’s attorney wrote Ansvar on August 13, 1987, notifying it of the O’Dea settlement offer and requesting its opinion.

Ansvar filed a petition to intervene in Hallberg’s lawsuit on August 24, 1987. On September 11, 1987, Ansvar’s attorney informed Hallberg’s attorney that it had been retained to evaluate the claim for underinsurance coverage and to give advice on the O’Dea offer. It stated that it would give notice within 14 days as to whether underinsurance coverage existed. No such notice was ever given. On June 3, 1988, Hallberg’s attorney notified Ansvar that he had accepted O’Dea’s offer and that he had settled the case on May 24,1988.

Ansvar filed a complaint for declaratory judgment against Hallberg on July 11, 1988, seeking a determination of coverage. It alleged that its underinsured motorist policy did not apply to Hallberg because he failed to notify it or send legal papers to it, as directed by the policy provisions. Hallberg filed a motion for summary judgment and Ansvar filed a cross-motion. Following a hearing on February 2, 1990, Hallberg’s motion was granted and Ansvar’s was denied. Ans-var now appeals the circuit court’s order.

Ansvar contends that the “Additional Duty” section of its insurance policy created a condition precedent which Hallberg failed to fulfill. Hallberg maintains that the provision was not a condition precedent to payment.

Part H of the policy begins on page 9 and contains what is referred to as “Other Coverages.” Listed in this section are several paragraphs entitled “Towing and Road Service,” “Rental Expense,” “Underinsured Motorist Coverage,” “Exclusions,” “Limit of Liability,” “Other Insurance,” and “Arbitration.” Following these, at the very bottom of page 10, is the “Additional Duty” provision. It states:

“Any person seeking coverage under this endorsement must also promptly send us copies of the legal papers if a suit is brought.”

A condition precedent is one which must be performed before a contract becomes effective or which is to be performed by one party to an existing contract before the other party is obligated to perform. (Kilianek v. Jung K. Kim (1989), 192 Ill. App. 3d 139, 548 N.E.2d 598; In re Estate of Albrecht (1975), 27 Ill. App. 3d 839, 327 N.E.2d 317.) Like other contracts, insurance contracts are to be construed according to the sense and meaning of the terms which the parties have employed, and if they are free from ambiguity, their terms are to be understood in their plain, ordinary, and popular sense. Smiley v. Estate of Toney (1968), 100 Ill. App. 2d 271, 241 N.E.2d 116.

Ansvar takes the position that “additional duty” means “condition precedent.” After reviewing the insurance policy as a whole, we disagree and conclude that Ansvar is creating an ambiguity out of otherwise unambiguous terms. Where a party claims that his own ambiguous language constitutes a condition precedent to his performance, he is not entitled to such a favorable construction unless it is established that the parties intended to create a condition at the time of contracting. South Division Credit Union v. Deluxe Motors, Inc. (1976), 42 Ill. App. 3d 219, 355 N.E.2d 715.

As a general rule of contract law, an ambiguous provision in a contract will be construed against the party who prepared the contract. This is because it is the maker who chose the words to be used and he is therefore more responsible for the existence of the ambiguity. (Brown v. City of Pekin (1984), 129 Ill. App. 3d 46, 472 N.E.2d 77; Scheduling Corp. of America v. Massello (1983), 119 Ill. App. 3d 355, 456 N.E.2d 298; Ricke v. Ricke (1980), 83 Ill. App. 3d 1115, 405 N.E.2d 351.) Thus, the contract will be construed most strongly against him. Dr. Charles W. Smith III, Ltd. v. Connecticut General Life Insurance Co. (1984), 122 Ill. App. 3d 725, 462 N.E.2d 604.

In this case, Ansvar seeks a construction which the contract simply does not support. Since Ansvar was the maker of the contract, any ambiguity will be construed against it. Ansvar is responsible for the words it chose. Therefore, the additional duty will be interpreted as just that and nothing more. An extension of its meaning is unwarranted.

Ansvar cites a number of cases in support of its contention that the additional duty is actually a condition precedent. (Kilianek v. Jung K. Kim (1989), 192 Ill. App. 3d 139, 548 N.E.2d 598; Illinois Insurance Guaranty Fund v. Lockhart (1987), 152 Ill. App. 3d 603, 504 N.E.2d 857; Lyntel Products, Inc. v. Alcan Aluminum Corp. (1981), 107 Ill. App. 3d 176, 437 N.E.2d 653; In re Estate of Albrecht (1975), 27 Ill. App. 3d 839, 327 N.E.2d 317.) Ansvar’s reliance on these cases is misplaced. In each one, there were factual distinctions which made it obvious that the provision in question was an unambiguous condition precedent. There is no such evidence in this case. The only time-related language is the word “promptly,” which can be interpreted to relate to the time when a person is making the claim for underinsurance coverage.

Furthermore, the placement of the provision is curiously inconspicuous. It is located at the very end of the section and is not set off by any kind of distinctive heading. If Ansvar had wanted the notice provision to act as a condition precedent to its obligation to provide coverage, it could have made it more explicit in substance and form. For example, it could have provided a specific time period in which notification must occur. Instead, it simply created an additional duty which did not at all imply that recovery was conditioned upon fulfillment of that duty.

Parties to an insurance contract may incorporate such lawful provisions therein as they choose, and courts should construe and enforce the contract as made. Courts should not, however, under the cloak of construction, make a new contract for the parties. (Smiley v. Estate of Toney (1968), 100 Ill. App. 2d 271, 278, 241 N.E.2d 116, 120.) In this case, Ansvar chose to create an additional duty rather than a condition precedent. It cannot now escape its obligation by attempting to recharacterize its own words. The circuit court properly refused to construe the provision as a condition precedent and correctly ruled that Hallberg was entitled to recover from Ansvar.

Accordingly, the judgment entered by the circuit court of Cook County is affirmed.

Affirmed.

BILANDIC and SCARIANO, JJ., concur.

       Justice Bilandic participated in this decision prior to his election to the Illinois Supreme Court.


author: JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RICHARD RILEY, Defendant-Appellee.
    First District (2nd Division)
    No. 1-90-2028
    Opinion filed January 15, 1991,

      nunc pro tunc December 18, 1990.

      John M. O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Jane Loeb, and Randall Roberts, Assistant State’s Attorneys, of counsel), for the People.
    Randolph N. Stone, Public Defender, of Chicago (James Reddy, Assistant Public Defender, of counsel), for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

The State seeks an interlocutory review of the circuit court’s pretrial order granting defendant a personal recognizance bond. The proposed appeal raises the question of whether the circuit court abused its discretion in lowering defendant’s $75,000 cash deposit bond to a $75,000 personal recognizance bond.

The facts, briefly, are that on June 30, 1990, defendant, Richard Riley, fatally shot his brother, Ronald Riley. Ronald had entered their mother’s apartment through the transom and allegedly physically assaulted her. According to defendant’s attorney, Ronald was not allowed in the apartment due to his violent nature. During this incident, Richard shot his brother once in the abdomen from a distance of four to six feet. He then hid the revolver and lied to police about its location. Richard had been drinking at the time of the shooting. He was arrested and gave a written statement in which he admitted the shooting.

On July 1, 1990, Richard appeared before the circuit judge, who set a $75,000 cash deposit bond. On July 3, 1990, Richard appeared for a preliminary hearing before another circuit judge, who was informed that Richard had no prior arrests or convictions, was unmarried, had no children, lived with his mother, was employed for 10 years as a supply clerk and had an honorable discharge from the army. Richard’s bond was then lowered to a $75,000 personal recognizance bond.

A Cook County grand jury indicted Richard for first-degree murder on July 5,1990.

On July 16, 1990, the State moved for reconsideration of the decision to release Richard on a personal recognizance bond. After considering Richard’s background and the facts and circumstances of the shooting, the court denied the State’s motion and ordered the personal recognizance bond to stand. The State filed its motion here to review and vacate the circuit court’s order on July 17,1990.

Defendant raises a threshold question of jurisdiction, questioning the State’s right to have the circuit court order reviewed by this court, relying upon article VI, sections 1 and 6, of the 1970 Illinois Constitution (Ill. Const. 1970, art. VI, §§1, 6), and upon People v. Heim (1989), 182 Ill. App. 3d 1075, 538 N.E.2d 1259, appeal denied (1989), 127 Ill. 2d 627. The State claims a statutory right to appeal a pretrial bond order.

The Code of Criminal Procedure of 1963, as amended, provides three bases upon which the State relies:

“The State may appeal any order permitting release by personal recognizance.” (Ill. Rev. Stat. 1989, ch. 38, par. 110 — 2.)
“The State may appeal any order granting bail or setting a given amount for bail.” (Ill. Rev. Stat. 1989, ch. 38, par. 110— 5(e).)
“The State may appeal any order where the court has increased or reduced the amount of bail or altered the conditions of the bail bond or granted bail where it has previously been revoked.” (Ill. Rev. Stat. 1989, ch. 38, par. 110 — 6(g).)

The State urges that although People v. Heim decided that sections 110 — 2 and 110 — 6(g) were void, this court should hold otherwise and allow the appeal of defendant’s bail determination.

The supreme court has addressed the issue of judicial rule-making power with respect to appeals within a constitutional framework on several occasions. A succinct summary of treatment to be accorded this subject appears in People v. Jackson (1977), 69 Ill. 2d 252, 371 N.E.2d 602, in which the court observed (69 Ill. 2d at 256, 259):

“The judicial power is vested in a supreme court, appellate courts and circuit courts (Ill. Const. 1970, art. VI, sec. 1), and the general administrative and supervisory authority over all courts ‘is vested in the Supreme Court and shall be exercised by the Chief Justice in accordance with its rules’ (Ill. Const. 1970, art. VI, sec. 16). The term ‘supervisory’ was employed to fortify the concept of a centrally supervised court system. Ill. Ann. Stat., Const. of 1970, art. VI, sec. 16, Constitutional Commentary, at 527-28 (Smith-Hurd 1971).
This court may provide by rule for direct appeals from the circuit court to this court (Ill. Const. 1970, art. VI, sec. 4(b)); by rule for appeals from the appellate court (Ill. Const. 1970, art. VI, sec. 4(c)); by rule for interlocutory appeals (Ill. Const. 1970, art. VI, sec. 6); and by rule for expeditious and inexpensive appeals’ (Ill. Const. 1970, art. VI, sec. 16).
Although the Constitution of 1970 does not define judicial power, it is an exclusive grant of all such power to the courts. (Agran v. Checker Taxi Co. (1952), 412 Ill. 145, 149; People v. Callopy (1934), 358 Ill. 11, 14; People v. Bruner (1931), 343 Ill. 146, 157.) If the power is judicial in character, the legislature is expressly prohibited from exercising it. Agran v. Checker Taxi Co. (1952), 412 Ill. 145, 149; People v. Bruner (1931), 343 Ill. 146, 157.
This proposition has been repeated on multiple occasions prior to the Constitution of 1970, which conferred responsibility for the administrative and supervisory power ‘over all courts’ in the supreme court (Ill. Const. 1970, art. VI, sec. 16). People v. Lobb (1959), 17 Ill. 2d 287, 299; Agran v. Checker Taxi Co. (1952), 412 Ill. 145, 149; People v. Callopy (1934), 358 Ill. 11, 14.
* * *
The conclusion in People ex rel. Stamos v. Jones (1968), 40 Ill. 2d 62, was that the judicial article of 1964 (Ill. Const. 1870, art. VI (1964), sec. 5) placed exclusive responsibility for rules governing appeals in the supreme court. Hence, the General Assembly had exceeded its authority in enacting such a law.” (Emphasis added.)

The supreme court adopted Rule 604(a)(1) (107 Ill. 2d R. 604(a)(1)), which is the sole source of authority for interlocutory appeals by the State in criminal cases. (People v. Young (1980), 82 Ill. 2d 234, 239, 412 N.E.2d 501.) The State contends that sections 110 — 2 and 110 — 6(g) do not conflict with Rule 604(a)(1), but merely complement that rule. Although the legislature may enact laws concerning judicial practice which do not unduly infringe upon the inherent powers of the judiciary (People v. Walker (1988), 119 Ill. 2d 465, 474, 519 N.E.2d 890), the court in Heim specifically held that sections 110 — 2 and 110 — 6(g) encroach upon the court’s exclusive power to regulate appeals. (Heim, 182 Ill. App. 3d at 1081.) Where a statute directly and irreconcilably conflicts with a supreme court rule on a matter within the court’s authority, the rule will prevail. (Walker, 119 Ill. 2d at 475; People v. Cox (1980), 82 Ill. 2d 268, 274, 412 N.E.2d 541.) Section 110 — 6(g) and that portion of section 110 — 2 which purports to authorize appeals of personal recognizance bonds are therefore void, and the State’s appeal brought pursuant to those sections must be dismissed. Heim, 182 Ill. App. 3d at 1081.

The State maintains that Rule 604(a)(1) governs only appeals of substantive issues; it does not affect appeals of collateral issues, which are independent of the merits of a case. The language of the rule, however, does not support such a construction, and the State provides no authority for that interpretation. Further, statutory language must be given its plain and ordinary meaning without undue restriction or enlargement. Ehredt v. Forest Hospital, Inc. (1986), 142 Ill. App. 3d 1009, 1012, 492 N.E.2d 532.

The State also argues that Heim is not binding on this court. Although one district of the appellate court is not required to follow decisions of other districts, there are compelling reasons to do so. (People v. Ward (1989), 192 Ill. App. 3d 544, 554, 548 N.E.2d 1120.) Here, there are neither decisions contrary to Heim, nor is there a split of authority among the appellate districts. (See Ward, 192 Ill. App. 3d at 554.) Further, leave to appeal was denied by the supreme court, leaving the holding undisturbed. The Heim case, therefore, appears to be persuasive authority which precludes the State’s right to appeal.

The State’s motion to review and vacate the personal recognizance bond is denied.

Appeal dismissed.

SCARIANO, P.J., and DiVITO, J., concur.

        Heim discusses section 110 — 6(f) of the Code of Criminal Procedure (Ill. Rev. Stat. 1987, ch. 38, par. 110 — 6(f)). That statute was amended in 1989 by Public Act 86 — 984, effective December 13,1989, and the applicable provision became section 110 — 6(g).

      Although Heim did not specifically render void section 110 — 5(e), the same reasoning would apply to invalidate that provision.


author: JUSTICE WHITE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENNIS CARDENAS, Defendant-Appellant.
    First District (3rd Division)
    Nos. 1-87-2812,1-88-0528 cons.
    Opinion filed January 16, 1991.

      Martin Carlson, Michael J. Pelletier, and Pamela O’Shea, all of State Appellate Defender’s Office, and Jane B. McCullough, of Winston & Strawn, both of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Inge Fryklund and Kathleen Warnick, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WHITE

delivered the opinion of the court:

This is a consolidated appeal from two separate convictions by defendant Dennis Cardenas. In case number 1 — 87—2812 defendant was convicted of the aggravated criminal sexual assault of C.R., receiving a prison term of natural life pursuant to the Habitual Criminal Act (Ill. Rev. Stat. 1985, ch. 38, par. 33B — 1). In case number 1 — 88— 0528, defendant was convicted of the residential burglary of the home of J.C., receiving a 15-year prison term for that offense, to be served consecutively to the natural life term.

We have consolidated these cases because they both involve identical issues concerning the propriety of defendant’s arrest and subsequent interrogation. Defendant’s arrest in the residential burglary case resulted in evidence and statements relating to both cases. In the latter case defense counsel moved to quash defendant’s arrest and to suppress evidence, including certain statements allegedly made by him. When it was determined that these identical issues had been raised in case number 1 — 87—2812, defense counsel withdrew the motions but sought to preserve for appeal the issue of whether those motions had been properly denied in the earlier trial. On appeal in 1— 88 — 0528, defendant’s only contentions of error concern the trial court’s rulings on those motions in the earlier trial. In 1 — 87—2812 defendant also raises those issues. However, he additionally contends: the trial court should have suppressed certain identification testimony; his guilt was not proven beyond a reasonable doubt; his trial attorney’s failure to investigate defenses and interview witnesses denied him the effective assistance of counsel; the trial court erroneously overruled defendant’s objection to a hypothetical question; the court erroneously refused to give some of defendant’s jury instructions; prejudicial final argument by the prosecution deprived defendant of a fair trial; and defendant was improperly sentenced to a term of natural life.

We first consider defendant’s contention that the trial court erred in suppressing his motions to quash his arrest and to suppress evidence arising from that arrest. As we have noted, this argument relates to both cases before us, as defendant’s arrest for the burglary of J.C.’s home yielded evidence and statements concerning both cases. The evidence concerning this issue can be summarized as follows. On June 29, 1986, at 4 a.m. Chicago police detectives Schnoor and Atkins went to the scene of a reported burglary in progress at 1451 West Melrose in Chicago. Schnoor testified that they were told by J.C. that she had been sleeping on the couch and was awakened by a male intruder. The man fumbled with his pants and asked the victim to help him. He then began fondling his penis while telling the victim to “come and get some of this.” When the victim yelled to her roommate for help the man grabbed her money off a table and fled through the front door. J.C. described this man as white, 30 to 35 years old, 180 pounds, 5 feet 11 inches, wearing navy pants, a gray top, and a towel over his head. Two doors in the home were unlocked and there was no sign of forced entry.

Schnoor had already been informed by another detective, Mette, of what the police believed to be a pattern of similar crimes in the area. Schnoor testified that in these crimes women were sexually assaulted and their money taken in the early morning after being awakened by a male intruder who had entered through an unlocked door or window. The assailant was described as being a white man, 5 feet 8 inches to 5 feet 10 inches, weighing between 150 and 180 pounds, wearing a hooded sweatshirt or a towel over his head. Some descriptions were of a man between the ages of 25 and 30. Two of the offenses had occurred in the immediate area, six and eight blocks away, and five days earlier and one month earlier. Defendant was a suspect in these crimes. The pattern began one week after he moved to 1116 North Wood, in November 1985.

Detective Robert Mette was the officer who arrested the defendant. On June 29, 1986, at about 5:30 a.m. he spoke to Detective Schnoor and learned the details of the offense at J.C.’s home. Mette was aware that defendant had been involved in a similar crime pattern of burglaries and rapes in 1977, which Mette had investigated. For those offenses the police had a description of a male white, 25 to 35 years of age, 5 feet 7 inches to 5 feet 11 inches, 140 to 180 pounds, wearing a hood or a towel draped over his head. The victims were normally asleep when the offender entered through an open door or window between midnight and 6 a.m. This pattern ceased after defendant Cardenas was arrested. He was subsequently convicted and imprisoned for a number of those offenses. Within several weeks of his release from prison on November 8, 1985, a similar crime pattern began again. In 1977 the defendant had worked as a pizza delivery man. He was so employed again at the time of his arrest in 1986. Detective Mette testified that this occupation enabled defendant to be in the areas where these crimes occurred.

After learning of the offense at the home of J.C., Detective Mette and his partner drove to the vicinity of defendant’s home at 1116 North Wood. When Mette saw the defendant driving, he pulled him over. As Mette approached defendant’s car, he saw defendant reach back to the floor behind the driver’s seat. Mette asked defendant for his driver’s license, and defendant got out of the car and produced his license. In the vehicle Mette could see a white towel on the floor behind the driver’s seat and a gray sweatshirt on the back seat. The defendant, who appeared to have an erection, was wearing a blue T-shirt and navy blue pants. Defendant was approximately 5 feet 10 inches, 185 pounds, and appeared to be about 35 to 40 years of age. Detective Mette believed defendant fit the description of the offender in the J.C. crime, and he arrested the defendant at that time.

Defendant testified that at the time of his arrest he was driving home from a date with a woman named Roberta, whose last name he did not know. He was pulled over by an unmarked police car. Two police officers approached and asked him to step out of the car. When he complied they spread him across the front of their car, emptied his pockets, and took his driver’s license from his wallet. One of the officers asked him what he had placed on the floor when he pulled over. While one officer kept him by the car, the other officer searched his car and retrieved a towel from the back seat. Defendant denied that he had a gray sweatshirt in the car. He stated that the gray sweatshirt he was wearing in a lineup photograph taken the next day had been retrieved from his home by the police. After the towel was found, defendant was told he was under arrest on suspicion of burglary and was taken in handcuffs to the police station. Defendant, who was 43 years old, testified that he was 5 feet 11 inches and weighed a little less than 185 pounds at the time of his arrest. At that time he was wearing navy blue slacks and a blue Bears T-shirt.

After hearing argument on this evidence, the trial court ruled that the officers had at least a reasonable suspicion justifying a Terry stop when they first pulled the defendant over. They then had probable cause to arrest the defendant after they saw the towel and gray sweatshirt in defendant’s car. Accordingly, the court found no basis for quashing defendant’s arrest. We find no merit to defendant’s contention that this ruling should be overturned. Under the standards enunciated in Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, police officers may temporarily detain an individual provided that the officers have a reasonable suspicion, based upon specific and articulable facts, that criminal activity is afoot. Illinois has codified that standard, providing that a police officer may “stop any person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person is committing, is about to commit or has committed an offense.” (Ill. Rev. Stat. 1985, ch. 38, par. 107 — 14.) In this cause there were numerous facts known to the officers which justified them in believing that the defendant had recently committed an offense. They knew that the defendant had previously been convicted of a series of early morning burglaries and rapes in which entry had been via an open door or window, the victim was initially asleep, and the offender was wearing a hood or towel on his head. The offender then was described as a male, white, 25 to 35, 5 feet 7 inches to 5 feet 11 inches, 140 to 180 pounds. They knew that this pattern had ceased when defendant was arrested and imprisoned, and that the same pattern arose again several weeks after defendant was paroled and again obtained employment delivering pizzas in the area. The offender was described as a male white, 5 feet 8 inches to 5 feet 10 inches, weighing 150 to 180 pounds, with a hooded sweatshirt or towel over his head. The women were usually sleeping when first accosted, and they were sexually assaulted and deprived of money. In the crime which had occurred shortly before the defendant was stopped, the offender was described as a male white, 30 to 35 years of age, 5 feet 11 inches, 180 pounds, wearing navy pants, a gray top, and a towel over his head. Entry was apparently made through an open door. The offender sought to involve the victim in sexual activity, and he took money before fleeing.

Detective Mette had been involved in the investigation of defendant’s crimes in 1977. He knew the defendant and recognized him in his car in the early morning hours of June 29, 1986, shortly after the commission of the offense Mette was investigating. Police testimony established that at this time defendant was already a suspect in the recent crime pattern. Clearly Detective Mette had an articulable basis for a reasonable suspicion that defendant was the man who had just accosted J.C. When the officer approached defendant’s vehicle and asked him for identification, he then was able to observe the towel which defendant had apparently just attempted to hide as well as a gray sweatshirt. Defendant appeared to the officer to be approximately 5 feet 10 inches, 185, and between 35 and 40 years of age. He was wearing blue pants, and the towel and sweatshirt matched the description given by the victim. Detective Mette was not then operating under a mere hunch, as defendant contends. Detective Mette now had a reasonable basis for believing that defendant had committed the offenses against J.C., and therefore he had probable cause to arrest him. People v. Fetterman (1973), 14 Ill. App. 3d 120, 302 N.E.2d 218.

We also find no merit to defendant’s contention, raised in both cases before us, that incriminating statements made by him during interrogation following this arrest should have been suppressed as involuntary. The State’s evidence concerning that interrogation was as follows. Following the defendant’s arrest at 6 a.m. on June 29, he was taken to Area 6 headquarters, where Detective Mette advised him of his Miranda rights and questioned him for 15 minutes. Defendant was next questioned at 1 p.m. by Detective Scott Keenan, in the presence of Detective McDermitt. Defendant was advised of his rights and agreed to talk to the detectives. Keenan told defendant he had been identified in a lineup as the perpetrator of the burglary of J.C. In an ensuing 45-minute conversation, defendant confessed to that offense. Keenan returned between 2:30 and 3 p.m. and took a written statement concerning the burglary. He also had a short conversation with defendant at 4 p.m. Prior to each of those conversations he advised defendant of his rights.

At 4:30 p.m. Detective Barry Moran advised defendant of his rights and then questioned him for 30 to 40 minutes. Moran then left the room, spoke to defendant’s mother, and returned with her. Defendant’s mother told him to tell the truth. Defendant then made a number of incriminating statements about certain crimes committed by him, including a statement concerning the offense involving C.R. At 6:30 p.m. Detective Krull, after speaking with Detective Moran, advised defendant of his rights and questioned him for 15 minutes. Krull testified that at this time the defendant was not handcuffed.

At about 8 p.m. Krull and two other detectives took defendant to his bond hearing. Defendant then directed them to several locations in the city. At about 9 p.m. they bought him some food at a hot dog stand. Defendant was then returned to Area 6 where, at 11:30 p.m., he was questioned by Assistant State’s Attorney Timothy Frenzer. Frenzer testified that he identified himself and then advised defendant of his rights. He then obtained a statement from defendant. Frenzer testified that defendant spoke in a normal conversational tone and was alert and responsive. Defendant did not appear tired, he did not yawn, and he never asked to stop the questioning so he could sleep. Defendant was not handcuffed during this questioning. At about midnight defendant signed a written statement, after first making a number of corrections as Frenzer prepared it. Defendant was taken down to the lock-up for the night at about 1:15 p.m.

The next morning, June 30, at 9 a.m. Detective Moran checked defendant out of the lock-up and got him some food that defendant’s mother had brought for him the night before. Defendant appeared to Moran to have just woken up. Detective Keenan, who then questioned the defendant, testified that defendant appeared to be alert and responsive and never yawned in his presence.

At 3 p.m. defendant was questioned by Assistant State’s Attorney Jane Liechty. She advised him of her office and gave him his rights. Defendant was not handcuffed during the 15 minutes that she questioned him. At about 4:15 p.m., in the presence of Detectives Keenan and Ryan, she obtained three written statements from defendant, including a statement concerning defendant’s attack on C.R. Liechty testified that defendant was awake and responsive to questions. He never complained that he had not been allowed to sleep; indeed, he told her that he had been allowed to sleep at the police station. He also told her that he had been given food, drink, and an opportunity to use the washroom. Defendant stated that he had not been threatened.

Detective Keenan testified that he did not believe defendant was ever handcuffed during any of Keenan’s sessions with him. He was free to move around and was awake and alert at those times. Keenan denied ever having told the defendant that he would die in Stateville.

In his testimony defendant contended that sleep deprivation was a major factor in his interrogations. He claimed that at the time of his arrest on Sunday morning he was exhausted, as he had not slept since Friday night, when he had slept five hours. During his first day of interrogation he had asked a number of officers, including Detectives Moran and Keenan, to be allowed to sleep. He also told the two assistant State’s Attorneys who questioned him that he had not had enough sleep and that he needed to sleep. However, his first opportunity to sleep was when he was placed in the lock-up early Monday morning.

Defendant denied that he had been advised of his rights by any of the officers who questioned him. However, he admitted that he had been advised of those rights by the first assistant State’s Attorney who questioned him. He also stated that he knew what Miranda warnings were and understood those rights. Defendant also denied signing any of the written statements he allegedly gave. When shown the five statements purporting to bear his signature, he denied that the signatures were his.

Defendant’s mother testified that at noon on Sunday, June 29, she first went to the police station, bringing defendant his gray sweatshirt. She returned to the station at 3 p.m., but did not see her son until 5 p.m. At that time he was seated in a small room, with his hands handcuffed above his shoulders. He looked as if he were drunk or incoherent and appeared tired. After 20 minutes alone with the defendant, she was joined by Lieutenant Jurkowski and Detective Moran. Defendant’s mother testified that she pleaded with defendant to tell the police whatever they wanted to hear. Defendant was in tears and then began to talk to them. At about 7:30 or 8:30 p.m. she was permitted to bring him something to eat.

In rebuttal Lieutenant Jurkowski testified that he had never spoken to the defendant or defendant’s mother on June 29 or June 30. Sergeant James Biebel testified that he had been in and out of the room where defendant was being questioned at the time testified to by defendant’s mother. Defendant did not ask to get any sleep. Detective Krull, who questioned the defendant after Detective Moran, had previously testified that the defendant was not then handcuffed.

Following arguments by counsel concerning this testimony, the trial court made its ruling. The court noted that the credibility of witnesses was an important factor in the deliberations. The court specifically found that defendant was advised of his Miranda rights when he was first brought to the police station and repeatedly thereafter. The court found that defendant had not been threatened. Concerning the issues of defendant’s lack of sleep and the extensive interrogation, the court found:

“[Tjhere’s no question that the defendant on the 29th was subjected to extensive interrogation. He was arrested around 6 a.m. in the morning and it was 1:30 the next morning by the State’s own testimony that he was taken to the lockup to retire. Placing the circumstances that an entire day of context [sic] and affording the credibility of the State’s witnesses that I think is due, it was indeed a long day, but I don’t believe that the deprivation of sleep were [sic] inherent in the activities of that day. *** I find nothing in the circumstances of the 30th that suggests any kind of coercive force which would produce an involuntary statement. Accordingly the motion to suppress statements is denied.”

We find no basis for overturning this determination by the trial court. It is the totality of the circumstances which determines whether a statement was voluntarily given. (People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601.) Defendant correctly states that deprivation of sleep is a factor to be considered by the court. (People v. Pittman (1973), 55 Ill. 2d 39, 302 N.E.2d 7.) But in this cause the trial court, like the court in Pittman, considered that factor and found it to not be dispositive. As our summary of the evidence has established, there was ample testimony from those questioning defendant which established that he was alert, responsive, and showed no signs of sleepiness while being questioned. The testimony of defendant’s mother concerning the questioning that she witnessed was impeached in many respects. Defendant himself did not testify that he was handcuffed at the time of this questioning. Detective Krull, who questioned defendant immediately after the questioning by Detective Moran, testified that defendant was not then handcuffed. Detective Moran testified that defendant’s mother only advised defendant to tell the truth. We do not find this to be the “psychological pressure” which defendant claims it to have been. Indeed, defendant’s mother testified that she was allowed to speak with him alone for 20 minutes before that questioning session began.

This defendant was 43 years old, with extensive prior experience with the criminal justice system, at the time he was questioned. He testified at trial that he was familiar with the Miranda warnings and understood them. The trial court expressly found that he had been advised of these rights prior to any questioning and repeatedly thereafter. Taking into consideration all of these factors, we cannot find that the trial court’s determination of voluntariness was contrary to the manifest weight of the evidence and, accordingly, we will not disturb that finding. People v. Kokoraleis (1986), 149 Ill. App. 3d 1000, 501 N.E.2d 207.

Defendant’s remaining contentions concern only his conviction in No. 1 — 87—2812 for the aggravated criminal sexual assault of C.R. Defendant contends that the trial court should have suppressed the lineup identification of him made by C.R. Detective Krull testified that he conducted this lineup at 3:15 p.m. on June 30. Appearing in the lineup with the defendant were four police detectives. According to Krull, C.R. had described her attacker as a male white, approximately 5 feet 8 inches to 5 feet 10 inches, weighing 160 to 180 pounds. All of the people in the lineup were between 5 feet 8 inches and 5 feet 10 inches. Two of the men had moustaches, although C.R. had not described her attacker as having a moustache. However, Krull also testified that defendant and the other lineup participants all had a 5 o’clock shadow or some sort of facial hair. It was Krull’s belief that all of the people in the lineup were approximately the same age as the defendant and that they all appeared to be in approximately the same weight group.

Defendant contends that he was entitled to an attorney at this lineup and that he should have been advised of this right. But defendant possessed no constitutional right to counsel at this pre-indictment lineup where formal adversary proceedings had not been commenced by means of a formal charge, preliminary hearing, indictment, information, or arraignment. People v. Logan (1983), 117 Ill. App. 3d 753, 453 N.E.2d 1317.

We also find no merit to defendant’s contention that this lineup was unduly suggestive. A photograph of that lineup is contained in the record before us. It clearly supports the testimony of Detective Krull concerning the basic similarity in height, weight, and age of all the participants. Defendant complains that two of the participants had moustaches and that one had gray hair. He also contends that three of the officers wore white dress shirts whereas defendant was dressed in a T-shirt and sweatshirt jacket. Certainly there is no requirement that the participants in a lineup be identical, and minor differences in appearance are not critical. (See People v. Owens (1977), 46 Ill. App. 3d 978, 361 N.E.2d 644.) On this record we find that the trial court was correct in determining that this lineup was not unduly suggestive.

We next consider defendant’s contention that his guilt was not established beyond a reasonable doubt. At trial C.R. testified that the evening of June 25, 1986, she had fallen asleep in her home with the television on. Between midnight and 1 a.m. she was awakened by a man standing over her bed. She subsequently identified this man as the defendant in a lineup and at trial. The defendant struck her and subsequently grabbed her by the hair, at which point she bit him in the left forearm. The defendant then forced her to have sexual intercourse with him. After this he wiped himself off with a shawl and told the victim he was going to leave and not to move for a few minutes. He then left through the kitchen door. C.R. got up and locked the storm door and -window as well as the screen door. She went into the bathroom, urinated, and washed the lower part of her body. She then applied ice to her cut lip and cried herself to sleep. C.R.’s roommate testified that the next morning she came home to find C.R. with a bruise on the side of her face and swollen, bloodshot eyes. C.R. told her that she had been raped, and the police were summoned and C.R. was taken to the hospital.

C.R. described her assailant to the police as a white male in his late twenties, of average height, and weight, with very dark brown eyes, a dark complexion, and dark hairy arms. Her assailant was wearing a hood so she could not see his entire face. However, she could see the part of his face around his eyebrows, his eyes, and his nose. She could also see that he had no moustache and that his eyebrows were very dark. Defendant was in the apartment for 30 to 45 minutes. She was within two to three feet of his face for about 25 minutes. She testified that although she ordinarily wore glasses and was not wearing them when attacked, the glasses were for nearsightedness and she did not have problems seeing the defendant.

When the defendant was arrested, a hooded sweatshirt was found in his car. The police also observed a small arc-like scar on his left arm. Detective Moran testified that on June 29, the day of his arrest, defendant told him that several days earlier, between 1 and 2 a.m. he had raped a woman in the area of Cicero and Belmont. Defendant stated that he entered the woman’s apartment through an open back door and saw her sleeping in bed. He turned her television off, grabbed the woman, and forced her to have sex with him. Later that evening defendant took the police to the location of C.R.’s apartment, where he said the rape took place. Only later did Detective Moran learn that C.R. had been attacked at that location. Assistant State’s Attorney Liechty also testified that defendant subsequently signed a written confession to this offense. Defendant told her that the woman he attacked had bitten his left forearm.

Defendant’s mother testified that on the evening in question, from midnight until 3 a.m., her son was with her watching video tapes. The defense also presented the testimony of a police criminologist. She testified that she had examined a blanket in which C.R. had wrapped herself when taken to the hospital. C.R. had previously testified that she was seated on this blanket for 15 minutes at the hospital prior to her examination. The criminologist testified that a semen stain found on that blanket was inconsistent with defendant’s blood type. No semen activity was found in vaginal swabs taken from C.R. nor was any found in her panties. In rebuttal, C.R.’s roommate testified that the blanket for C.R. had been obtained from the roommate’s room. The blanket had been on the roommate’s bed, on which the roommate had had intercourse numerous times. The blanket had not been washed in that period.

Clearly this evidence sufficed to establish defendant’s guilt beyond a reasonable doubt. His victim identified him in a lineup and in court. Her testimony was corroborated by a prompt outcry, by physical injuries, and by the bitemark observed on the defendant’s arm. Defendant raises a number of points which in our view only presented questions for the jury as the finder of fact to resolve. He points out that a police detective’s notes showed that C.R. told him she had bitten the defendant’s right arm, whereas she testified that it was the left arm. But that detective testified that he had no independent recollection of what she had told him, and several witnesses testified to the mark observed on defendant’s left arm. Defendant notes that the semen found on the blanket was established not to be his. But C.R.’s roommate’s testimony established an alternative source for that semen. The criminologist also testified that the absence of any other semen could have been explained by defendant’s failure to ejaculate, a fact which was neither proven nor disproven at trial. Defendant cites to his mother’s alibi testimony, but the jury was not required to accept this alibi testimony in the face of the victim’s identification testimony. People v. Du Pree (1987), 161 Ill. App. 3d 951, 514 N.E.2d 583.

Defendant raises a number of contentions concerning the victim’s identification, including her limited ability to observe her assailant during the attack and her description of a man in his late twenties when the defendant was 43. Again, these merely presented discrepancies to be resolved by the jurors as the finders of fact. We do not find that any of these factors sufficed to raise a reasonable doubt of defendant’s guilt. Finally, defendant cites to alleged discrepancies in the defendant’s signed confession, such as his reference to the crime occurring after midnight on June 26. In fact the crime did occur after midnight, which made it June 26. In most respects defendant’s confessions tracked his victim’s account quite closely. The minor discrepancies raised by the defendant were properly resolved by the jury. A reviewing court will reverse a conviction based upon reasonable doubt only where no rational trier of fact, viewing all of the evidence in the light most favorable to the prosecution, could have found all of the elements of the crime beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) In this cause we find no such basis for reversing defendant’s conviction.

We next consider defendant’s contention that his attorney’s failure to investigate certain matters deprived him of the effective assistance of counsel. Defendant specifically contends that his attorney failed to pursue his claim that the signatures on his confessions were forged, as well as his contention that the mark on his arm was caused by a burn. At the hearing on defendant’s motion for a new trial, testimony was heard concerning these allegations. At that hearing, the defendant testified that he had repeatedly told his trial attorney that the signatures were not his and he had asked him to obtain additional handwriting samples and to make comparisons of his signature. Defendant’s trial attorney testified that defendant initially told him he could not recall whether or not he had signed the statements. Counsel also testified that his viewing of the signatures persuaded him that obtaining the testimony of a handwriting expert would be of no utility. He also testified that such a defense would have required a theory involving a massive police conspiracy, and his opinion was that a defense of police coercion would be more viable.

Defendant also testified at the hearing that he had asked his counsel to verify that the mark on his arm was a burn by interviewing co-workers at the store where the burn occurred and by obtaining a professional opinion of a photograph of the mark. Defendant claimed to have given his counsel the first name of the store manager, the store’s address, and the names of two other store employees. Defense counsel testified that when he viewed the photograph he bplieved it could depict a bite mark, as the mark consisted of a series of small and slightly separated red marks in a crescent shape. He also testified that the defendant failed to furnish him with the names of witnesses to the burn, even though he repeatedly asked defendant for them. At the conclusion of this testimony, the trial court denied defendant’s motion, indicating that it believed defendant’s counsel. We find no basis for overturning that determination.

Defendant also contends that he was denied a fair trial when the trial court allowed the prosecution to ask the police criminologist a hypothetical question that was based upon a fact not in evidence. The question related to the evidence that no semen attributable to the defendant was found on the blanket worn by the victim at the hospital. Over defense objection, the prosecution elicited from the witness testimony that there would be no “semen activity” on the blanket assuming the person wrapped in the blanket was also wearing panties. Defendant contends that there was no evidence that the victim was wearing panties at the hospital. But in fact the victim had testified that at the hospital she was wearing an undergarment which was subsequently taken by the police. Furthermore, in rebuttal testimony the victim’s roommate specifically testified that the victim was wearing panties when she went to the hospital. Accordingly, we find no error in the trial court’s ruling on this question. See People v. McCumber (1985), 132 Ill. App. 3d 339, 477 N.E.2d 525.

Defendant contends that there were several trial errors involving jury deliberations. He first contends that the trial court erred in refusing to tender to the jury four instructions concerning the issue of identification. The trial court’s refusal of these instructions is supported by IPI Criminal 2d No. 3.15 (Illinois Pattern Jury Instructions, Criminal, No. 3.15 (2d ed. 1981)), which recommends that no instructions be given on this issue as it is adequately covered by the general instruction on credibility of witnesses. That latter instruction, IPI Criminal 2d No. 1.02 (Illinois Pattern Jury Instructions, Criminal, No. 1.02 (2d ed. 1985)), was given. We accordingly find no merit to this contention. People v. Fox (1971), 48 Ill. 2d 239, 269 N.E.2d 720.

Defendant also complains of improper final argument by the prosecution. Two comments are at issue, both occurring in rebuttal argument by the prosecutor. Defense counsel had told the jury that they should not be affected by emotions and by the outrage they had heard in the victim’s voice. The prosecutor subsequently told the jury:

“Ladies and gentlemen, defense counsel has talked about emotions, and outrage. Well, ladies and gentlemen, I am outraged and I suggest to you that you should be outraged too.”

The second comment concerned the blanket which defense counsel had argued to the jury helped to exonerate the defendant because the semen stain it bore was not that of the defendant. The prosecutor, over defense objection, argued that defense counsel was attempting to “cover up all the hard facts of this case with the blanket” and further stated that the blanket had nothing to do with the offense. Clearly these comments should not have been made, but given the overwhelming evidence of guilt in this case, we do not find that they could have been a material factor in defendant’s conviction and, therefore, we find no reversible error in them. People v. Kim (1986), 148 Ill. App. 3d 191, 498 N.E.2d 831.

Finally defendant asks that we vacate his sentence to life imprisonment. He contends that the Illinois Habitual Criminal Act (Ill. Rev. Stat. 1985, ch. 38, par. 33B — 1) is unconstitutional. The arguments he makes in this regard have previously been rejected by this court, and we find no basis for reconsideration of them. (People v. Westefer (1988), 169 Ill. App. 3d 59, 522 N.E.2d 1381; People v. Morissette (1986), 150 Ill. App. 3d 431, 501 N.E.2d 781.) Defendant also contends that the State failed to establish that he qualified for sentencing under the Habitual Criminal Act. At the time of defendant’s sentencing, the Act required proof of two prior convictions containing “the same elements as an offense now classified in Illinois as a Class X felony.” (Ill. Rev. Stat. 1985, ch. 38, par. 33B — 1.) The predicate convictions in defendant’s case were a 1966 rape conviction and convictions in 1978 for rape and deviate sexual assault. Defendant contends that these convictions did not suffice because, under a 1984 amendment, those offenses were reclassified as criminal sexual assault, which is not a Class X felony. (Ill. Rev. Stat. 1985, ch. 38, pars. 12 — 13(a)(1), (b).) This argument, too, has been considered and rejected by this court. (People v. Sims (1987), 166 Ill. App. 3d 289, 519 N.E.2d 921.) Accordingly, we affirm defendant’s sentence.

For the reasons set forth in this opinion, we affirm defendant’s convictions and sentences in these consolidated appeals.

Affirmed.

RIZZI and FREEMAN, JJ., concur.

      Justice Freeman participated in the decision of this case prior to taking office as a supreme court justice.