author: JUSTICE TULLY

text:
    BEST COIN-OP, INC., Plaintiff-Appellant, v. FOUNTAINS ON CARRIAGE WAY CONDOMINIUM ASSOCIATION, Defendant-Appellee.
    First District (3rd Division)
    No. 1-91-0435
    Opinion filed November 25, 1992.
    Rehearing denied February 5, 1993.
    Glenn Seiden & Associates, of Chicago (Glenn Seiden, of counsel), for appellant.
    Marshall N. Dickler, Ltd., of Arlington Heights (Marshall N. Dickler, of counsel), for appellee.
   JUSTICE TULLY

delivered the opinion of the court:

This case addresses the interpretation of a lease agreement entered into between the parties, wherein the exact duration of the lease term is in dispute. Plaintiff, Best Coin-Op, Inc., is in the business of leasing laundry room equipment to apartment buildings and other large living facilities. On August 25, 1978, plaintiff entered into a lease agreement for a certain laundry room space maintained by the defendant, Fountains On Carriage Way Condominium Association, a residential condominium complex located in Rolling Meadows, Illinois. Following a flood in August of 1987, plaintiff’s laundry room equipment became damaged and inoperable, whereupon defendant removed the equipment from its facilities. Plaintiff then brought an action for wrongful eviction and breach of the existing lease agreement. On October 31, 1990, an order was entered granting partial summary judgment in favor of defendant.

Because plaintiff’s appeal from the October 31, 1990, order does not meet the minimum technical requirements in accordance with the rules of the Illinois Supreme Court (134 Ill. 2d R. 321), we need not set forth in detail the remaining facts, which are quite numerous. Illinois Supreme Court Rule 321 reads:

“321. Contents of the Record on Appeal
The record on appeal shall consist of the judgment appealed from, the notice of appeal, and the entire original common law trial court record, unless the parties stipulate for, or the trial court, after notice and hearing, or the reviewing court, orders less. The trial court record includes any report of proceedings prepared in accordance with Rule 323 and every other document filed and judgment and order entered in the cause. There is no distinction between the common law record and the report of proceedings for the purpose of determining what is properly before the reviewing court. No assignment of errors or cross-errors is necessary.” (Emphasis added.) 134 Ill. 2d R. 321.

The record on appeal filed by plaintiff in this action does not contain a copy of the October 31, 1990, order which is the “judgment appealed from.” Plaintiff contends that the record is nevertheless sufficient because it contains a copy of the order entered January 11, 1991, wherein the trial court denied plaintiff’s motion for reconsideration of the prior summary judgment order. We cannot agree.

An order denying an appellant’s motion for reconsideration is not the order or judgment of the trial cotut which is brought before this court on appeal. Our role as a reviewing court is to consider the legal propriety of the trial court’s decision, not in granting or denying a motion for reconsideration, but the underlying order or judgment which is at issue on a motion for reconsideration. In this case, plaintiff additionally failed to comply with Illinois Supreme Court Rule 341, by failing to include a jurisdictional statement, a section explaining the nature of the case and an appendix. 134 Ill. 2d R. 341.

Because appellant has failed to comply with the technical requirements necessary to our consideration of this cause, this appeal is hereby dismissed with prejudice.

Dismissed.

RIZZI and CERDA, JJ., concur.


source: Caselaw Access Project

author: JUSTICE DiVITO

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANDREW JOHNSON, a/k/a Frank Cration, Defendant-Appellant.
    First District (2nd Division)
    No. 1-91-1614
    Opinion filed December 1, 1992.
    Rehearing denied January 5, 1993.

      Michael J. Pelletier and Gordon H. Berry, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Christine Cook, and John Guinn, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DiVITO

delivered the opinion of the court:

Defendant Andrew Johnson was convicted by a jury of aggravated criminal sexual assault and sentenced to 28 years’ imprisonment. On appeal, he asserts that he was prejudiced by improper statements made during the State’s closing argument; that the circuit court improperly limited his cross-examination of the complainant concerning bias and motive; and that the circuit court erroneously allowed the introduction of evidence of a prior crime.

At trial, complainant testified that on May 17, 1989, having decided to visit a friend, she arrived at 46th and Calumet at about 9:30 p.m., but discovered that her friend was not home. She decided to return home and began walking to the bus stop at 47th and Prairie Avenue. When she reached the corner of 47th and Calumet, she saw four men, including defendant, none of whom she had seen before that night, standing in front of a liquor store.

As complainant approached the comer, defendant said, “[h]ow you doing?” to which she responded in kind. Defendant asked where she was going, and she said she was on her way home. Defendant began walking with her and told her that he was going to his sister’s house to help straighten out a problem between his sister and nephew. Complainant responded that she understood his situation because she was having similar problems with her son. After walking about half a block, defendant grabbed complainant by the neck and said “Bitch, if you scream, I will kill you.” Defendant then dragged her down an alley by the neck, and upon reaching a chain-link fence, began beating her. He grabbed her hair, bit her nose, and ordered her to jump the fence.

After they climbed over the fence, defendant dragged complainant about 20 feet to an area beneath the porch of an abandoned building. Defendant made her jump into a basement approximately four feet below and then followed her. He grabbed her by the neck and ordered her to take off her clothes; she stripped from the waist down. When she began to struggle, defendant struck her in the stomach, forcing her to the ground. After defendant pulled his pants and underwear down to his ankles, he forced her to engage in both vaginal and oral intercourse for approximately two hours. Defendant continued to pull her hair, and strike her on the head and stomach. After approximately two hours, defendant suddenly slumped and fell asleep, lying motionless atop complainant.

Too scared to move, complainant waited approximately 30 minutes before she attempted to escape. She slid out from under defendant, grabbed her clothes, and ran into the alley where she dressed. She then ran from the alley and flagged down a police squad car on Prairie Avenue.

Complainant testified that she thought that defendant was high on drugs or alcohol, because he smelled of alcohol, slurred his speech, and walked slightly unbalanced. She admitted that she had been addicted to both cocaine and alcohol, but denied using either that day. She explained that she would normally use cocaine about three times a week, spending $100 to $300 each week, and that she supported her habit with allowances from her parents and boyfriend. She stated that she had not used cocaine or alcohol for six months prior to the trial. She also stated that she could not remember if she told the police officer that she worked in “sales.”

Officer Thomas Scott of the Chicago police department testified that on May 17, 1989, at approximately 11:30 p.m., he saw complainant running towards his squad car, waving her arms frantically. Complainant’s clothes were disheveled and her face was bloody around her nose. She told him that she had just been raped under a porch and that the offender was still there. Complainant then led him to the basement, where, with his flashlight, he saw defendant sleeping on top of a blue jacket and a cardboard box; defendant was naked from the waist down with his pants around his ankles. He woke defendant, who made no attempt to run away. At that time, complainant identified defendant as her assailant and Scott placed him under arrest and advised him of his rights.

On cross-examination, Scott testified that when complainant approached his squad car there was an odor of alcoholic beverages and he believed that she had been drinking. He also stated that her clothes were dirty and wrinkled, but they were not torn.

Photographs of the marks on complainant’s nose and of scratch marks and injuries to her back were introduced into evidence. No other medical evidence of the sexual assault was introduced.

The State also introduced the testimony of Z.M. She testified that in the early morning of September 22, 1984, she exited a bus at 79th and King Drive with many other people, including defendant. As she walked down King Drive, she noticed defendant walking alone slightly ahead of her. As she crossed the street, she passed defendant because he had slowed his pace.

When Z.M. reached an ice cream parlor, defendant grabbed her around the neck. As she struggled, defendant struck her in the eye. He then dragged her half a block toward an alley, telling her, “Bitch, shut up.” Upon reaching a gangway in the alley, defendant pushed her to the ground, ordered her to be quiet, and struck her in the face. When Z.M. began to cry and scream, defendant tried to choke her, but she was able to free herself enough to breathe. As he held her by the neck, defendant pulled down her pants and underwear. Defendant then dropped his pants to his ankles and proceeded to place his penis into her vagina. Defendant told her to “open up, open up” and continued choking and hitting her. Defendant also bit her on the breast during the rape, and on the wrist when she tried to remove his arm from her neck. After Z.M. heard four or five gunshots, two police officers appeared, told defendant to “freeze,” and placed him under arrest.

The State introduced photographs of Z.M.’s bite wounds. Defendant objected to their admission on the ground that they were highly prejudicial and of no probative value, because defendant was not being tried for that particular crime. The State argued that the pictures corroborated Z.M.’s testimony that she was bitten. The circuit court overruled the objection, finding that the photographs corroborated the testimony that she had been bitten, which was a common feature of both cases.

At the conclusion of Z.M.’s testimony, the circuit court instructed the jury that the evidence could be considered only for the limited purpose of resolving the issue of defendant’s intent, motive, and design. The State then rested and defendant’s motion for directed verdict was denied.

Defendant’s case in chief consisted entirely of one stipulation; that Officer Scott would testify that on the night in question, complainant told him she worked in “sales.”

During closing arguments, the defense argued to the jurors that complainant’s testimony was filled with lies and that they should not believe her. The defense pointed out the inconsistencies between her testimony and Scott’s, particularly emphasizing the contradiction as to whether she had been drinking that night. The defense also stressed the contradiction between her statement that she was in “sales” and her testimony that she could not remember what she had said. The defense questioned complainant’s ability to refrain from drugs or alcohol on that night, since she was an admitted addict. Defense counsel stated that “[s]he is an addict, but conveniently she testifies that this evening she didn’t do any.” Defense counsel stated that he was not calling her a liar merely because she was a cocaine addict, but told the jurors to ask themselves “why would a crack cocaine addict walk with a stranger at night on a dark street engaging him in conversation when she saw that he was high?” He asserted that complainant had consented to sex with defendant and later fabricated the claim that she had been raped. He also argued that since there was no medical evidence, and complainant's testimony was contradicted by Scott, there was no credible evidence that a rape occurred.

In rebuttal, the State reminded the jury that defendant, not the complainant, was on trial. The State told the jury that “[s]he is not being tried for being a cocaine addict *** or being an alcoholic.” Similarly, the State told the jury to read the instructions that the judge would provide to see that no special exceptions were made for witnesses who are drug addicts or lie about their employment.

After the closing arguments, the court gave the jury instructions, including one explaining that the other crime evidence could be considered only for the issue of intent, motive, or design. The jury found defendant guilty of aggravated criminal sexual assault. Defendant’s motion for a new trial was denied and the court sentenced him to 28 years’ imprisonment.

On appeal, defendant first contends that the State engaged in unfair methods during its closing arguments, thereby denying him a fair trial. Defendant asserts that the State misled the jury by arguing that questions of complainant’s credibility should be considered by them only if the court’s instruction directed them to do so. Defendant takes issue with several of the prosecutor’s statements: “look at the instruction, does it say if you lie about your employment that it does not mean you can be raped?”; “[t]he fact that there was no medical evidence, that does not mean that this person walks free”; and “[y]ou will look throughout all of those instructions *** and you will not find one instruction that says it is okay to rape a cocaine addict.”

Defendant claims that these statements were prejudicial because they were a misstatement of the law and they relied on the court as authority in support of the State’s argument. The State responds that no misstatement of the law occurred, but rather the prosecution merely “directed the jury to the court’s instructions to show them that no *** exception^] existed.”

The law is well settled that a prosecutor is entitled to wide latitude when making a closing argument. (See People v. Cisewski (1987), 118 Ill. 2d 163, 175, 514 N.E.2d 970, 976; People v. Morrison (1985), 137 Ill. App. 3d 171, 184, 484 N.E.2d 329, 338.) Similarly, the scope of permissible argument is within the sound discretion of the circuit court. (People v. Lewis (1990), 198 Ill. App. 3d 976, 982, 556 N.E.2d 697, 701.) In order to constitute reversible error, the prosecutor’s remarks must have caused substantial prejudice to the accused, such that the jury would have reached a different result if not for those remarks. (People v. Morgan (1986), 112 Ill. 2d 111, 132, 492 N.E.2d 1303, 1311, cert. denied (1987), 479 U.S. 1101, 94 L. Ed. 2d 180, 107 S. Ct. 1329.) When assessing an alleged impropriety, a reviewing court must examine the closing arguments of both the State and the defendant in their entirety and the complained-of remarks in their proper context. Cisewski, 118 Ill. 2d at 175-76, 514 N.E.2d at 976.

In People v. Turner (1989), 128 Ill. 2d 540, 539 N.E.2d 1196, cert. denied (1989), 493 U.S. 939, 107 L. Ed. 2d 326, 110 S. Ct. 337, the supreme court affirmed a death sentence even though the prosecutor stated in his rebuttal argument that he “ ‘could never exaggerate enough to be a good defense attorney.’ ” (Turner, 128 Ill. 2d at 561, 539 N.E.2d at 1205.) The court held that although it is generally not permissible to characterize defense counsel as unethical, the statement was not improper because it was made in response to an overexaggerated story told by the defense. Turner, 128 Ill. 2d at 561, 539 N.E.2d at 1205.

Similarly, in People v. Vriner (1978), 74 Ill. 2d 329, 385 N.E.2d 671, cert. denied (1979), 442 U.S. 929, 61 L. Ed. 2d 296, 99 S. Ct. 2858, the court found no error in a prosecutor’s statement that he personally believed the defendant was guilty when the defense counsel had argued that even the prosecution was not persuaded beyond a reasonable doubt. (Vriner, 74 Ill. 2d at 344, 385 N.E.2d at 677.) The court held that since the defendant “invited the complained-of statement, *** [he] cannot, therefore, rely on such statement as error.” Vriner, 74 Ill. 2d at 344, 385 N.E.2d at 677.

We find inapposite People v. Emerson (1983), 97 Ill. 2d 487, 455 N.E.2d 41, relied upon by defendant, for there the prosecutor’s argument improperly placed the focus on the defense attorneys’ objectives rather than the evidence in the case. As in Turner and Vriner, the statements at issue in the instant case were made in response to defendant’s closing argument. Defendant argued primarily that complainant was not a credible witness because of questions raised about her drug addiction and employment status. By focusing on these issues, defendant invited the State to respond in its rebuttal argument. Moreover, a reading of the statements in their context shows that the State was not attempting to mislead the jurors by directing them to the instructions, but rather simply pointing out that no exceptions existed.

Defendant also claims that the prosecutor improperly shifted the burden of proof when he argued, over defendant’s objection, that the jury “[had] to choose to believe” Z.M.’s testimony, because defendant did not cross-examine her. While it is true that the State may not draw the jury’s attention to the defendant’s failure to testify (see Griffin v. California (1965), 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229; People v. Burton (1969), 44 Ill. 2d 53, 254 N.E.2d 527), the prosecution may properly refer to the fact that a witness’ testimony was uncontradicted, since it is merely an accurate summary of the evidence. (People v. Connolly (1989), 186 Ill. App. 3d 429, 437, 542 N.E.2d 517, 522, appeal denied (1990), 128 Ill. 2d 666, 548 N.E.2d 1073.) Similarly, our supreme court has held that there is a “great deal of difference between an allegation by the prosecution that defendant did not prove himself innocent and statements questioning the relevance or credibility of a defendant’s case.” People v. Phillips (1989), 127 Ill. 2d 499, 527, 538 N.E.2d 500, 511, cert. denied (1990), 497 U.S. 1031, Ill L. Ed. 2d 798, 110 S. Ct. 3290.

In the instant case, the State’s argument pointed out that there was no indication that anything Z.M. said was untruthful. Moreover, the court instructed the jury that the State bore the burden of proving defendant guilty beyond a reasonable doubt and that defendant was not required to prove his innocence. We conclude that defendant was not denied a fair trial as a result of the prosecutor’s remarks.

Defendant next contends that the circuit court committed reversible error when it barred him from cross-examining complainant on issues involving her bias and motive to testify. Prior to trial, defendant sought permission to question complainant about two criminal charges which had been stricken with leave to reinstate prior to the events in question. Specifically, defendant sought to establish bias and motive to testify by cross-examining complainant regarding a 1988 forgery charge and a 1989 theft charge, both of which were stricken with leave to reinstate before the sexual assault occurred. The State, however, made a motion in limine to prevent him from doing so. Without argument from defendant, the circuit court granted the motion, finding no concerns of promises of leniency from the prosecution in exchange for complainant’s testimony because there were no pending cases against her. Defendant neither challenged the ruling at trial, nor in his post-trial motion seeking a new trial.

In order to preserve a question for appellate review, both a contemporaneous objection and a written post-trial motion raising the issue are required. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) The failure to properly preserve an issue will limit review to certain constitutional issues, questions on the sufficiency of the evidence, and issues of plain error. (Enoch, 122 Ill. 2d at 190, 522 N.E.2d at 1132.) The plain error doctrine will apply when the evidence is closely balanced, or if the accused is denied a fair trial as a result of the error. People v. Turner (1989), 128 Ill. 2d 540, 555, 539 N.E.2d 1196, 1202, cert. denied (1989), 493 U.S. 939, 107 L. Ed. 2d 326, 110 S. Ct. 337.

In the instant case, the plain error doctrine does not apply. The evidence was not closely balanced, as no evidence contradicted complainant’s testimony that she was sexually assaulted, while there was substantial corroborative evidence. Moreover, defendant was able to establish complainant’s bias and motive through cross-examination concerning other areas. The court’s ruling prevented him from attacking complainant’s credibility only with one type of evidence that the court considered irrelevant. Defendant was not denied a fair trial as a result of this restriction on his cross-examination of complainant.

Further, defendant’s contention fares no better under plain error analysis. Defendant argues that the charges could have been reinstated anytime during the three-year limitation period (Ill. Rev. Stat. 1989, ch. 38, par. 3-5; People v. Reese (1984), 121 Ill. App. 3d 977, 988, 460 N.E.2d 446, 453), and cites People v. Triplett (1985), 108 Ill. 2d 463, 485 N.E.2d 9, and People v. Reese as authority for the proposition that he should have been allowed to question complainant about the stricken charges.

Although a witness may be cross-examined on those matters tending to show bias or motive to testify (People v. Rainone (1988), 176 Ill. App. 3d 35, 40, 530 N.E.2d 1026, 1029), a party may be restricted from doing so if the evidence is remote or uncertain. (Reese, 121 Ill. App. 3d at 988, 460 N.E.2d at 453; see also Olden v. Kentucky (1988), 488 U.S. 227, 232, 102 L. Ed. 2d 513, 520, 109 S. Ct. 480, 483 (recognizing that reasonable limitations may be placed on a defendant’s inquiry of potential bias on issues that are only “marginally relevant”).) Any limitation of cross-examination is within the circuit court’s discretion, and absent a clear abuse of that discretion, no error will be found. Rainone, 176 Ill. App. 3d at 40, 530 N.E.2d at 1029-30.

While defendant is correct in asserting that Triplett and Reese stand for the proposition that a defendant can suffer prejudice when prevented from questioning a witness about potential bias from stricken charges, he fails to make the distinction between charges that are too remote and those that are not. In the instant case, both of complainant’s charges were stricken before the sexual assault occurred. The circuit court’s implicit finding that the stricken charges were too remote to be relevant was not erroneous as an abuse of the court’s discretion. In addition, defendant suffered no prejudice because, as in Reese, he had adequate opportunity to challenge complainant’s credibility.

Moreover, unlike in Triplett, complainant was not a reluctant witness. Indeed, she initiated the prosecution by reporting the incident as soon as she saw a police officer, immediately after the offense occurred. For the foregoing reasons, the circuit court did not abuse its discretion when it restricted defendant from questioning complainant about the stricken charges.

Defendant also contends that the circuit court improperly precluded him from questioning complainant on cross-examination regarding the custody of her children after she lost her public assistance. The circuit court sustained an objection based upon relevancy. Because the scope of cross-examination is within the sound discretion of the circuit court, its ruling will not be overturned unless there has been an abuse of discretion resulting in manifest prejudice to the defendant. (People v. Kluxdal (1991), 225 Ill. App. 3d 217, 225, 586 N.E.2d 701, 707, appeal denied (1992), 144 Ill. 2d 639, 591 N.E.2d 27.) We find no abuse of discretion here.

Finally, defendant contends that he was denied a fair trial when evidence of the prior sexual assault was presented to the jury. Defendant asserts that the evidence was introduced to show that he had a propensity to commit sex crimes and that the State improperly argued that evidence in its closing argument.

Prior to trial, defendant made a motion in limine to bar the introduction of evidence regarding the sexual assault committed in 1984. Defendant argued that the prior crime and the instant case were too dissimilar to fit into the modus operandi exception. The State countered that under Illinois law, as long as enough similarities exist to make the crimes distinctive, such evidence is admissible for the limited purposes of intent, motive, and design. After noting several similarities between the two cases, the circuit court ruled that the prior crime evidence was admissible to establish motive, intent, and knowledge.

When Z.M. was called as a witness during the trial, defendant did not renew his objection to her testimony, nor did he specifically attribute any error to its introduction in his motion for a new trial. Defendant did, however, assert in his motion that he was prejudiced by the State’s closing argument that defendant followed “a specific pattern” because it mischaracterized the other crime evidence as evidence of his propensity to commit a particular crime.

Defendant first asserts that the evidence of the prior crime served no valid purpose and merely persuaded the jury that he was predisposed to commit a certain type of crime. The State responds that the evidence was admitted solely for the purpose of determining defendant’s state of mind at the time in question. The State argues that since defendant claimed that complainant consented, the central issue was whether defendant had an innocent frame of mind.

It is axiomatic that evidence of other crimes is not admissible as proof of a defendant’s propensity to commit crime. (People v. Kokoraleis (1989), 132 Ill. 2d 235, 256, 547 N.E.2d 202, 212, cert. denied (1990), 497 U.S. 1032, Ill L. Ed. 2d 804, 110 S. Ct. 3296.) Evidence of other crimes may be introduced, however, if it proves a fact in issue, or if it shows modus operandi, identity, motive, or intent. (People v. McKibbins (1983), 96 Ill. 2d 176, 182, 449 N.E.2d 821, 823-24, cert. denied (1983), 464 U.S. 844, 78 L. Ed. 2d. 136, 104 S. Ct. 145.) Furthermore, whenever evidence of another crime is offered, there must be some similarity between the other crime and the crime charged in order to ensure that it is not being used to establish the defendant’s criminal propensity. (People v. Bartall (1983), 98 Ill. 2d 294, 310, 456 N.E.2d 59, 67.) The requisite extent of the similarities differs, however, with the purpose for which the evidence is offered. When evidence of prior crimes is offered to prove either modus operandi or that the crime charged was part of a common design, “there must be a high degree of identity between the facts of the crime charged and the other offense.” (People v. Illgen, 145 Ill. 2d 353, 372-73, 583 N.E.2d 515, 523.) By comparison, when the evidence is offered to prove criminal intent or the lack of an innocent frame of mind, general similarities will suffice to justify admission. Illgen, 145 Ill. 2d at 373, 583 N.E.2d at 523.

Other crime evidence may be admitted to prove a defendant’s criminal intent. In People v. Illgen (1991), 145 Ill. 2d 353, 583 N.E.2d 515, the supreme court held that the circuit court did not abuse its discretion when it allowed the State to admit other crime evidence to negate the defendant’s assertion that a shooting was accidental. (Illgen, 145 Ill. 2d at 364, 583 N.E.2d at 519-20.) In Illgen, the State offered evidence of prior physical abuse to prove that the defendant did not have an innocent frame of mind when he shot his wife in the face. The supreme court upheld the circuit court’s admission of the evidence because it was probative of the issue of the requisite mental state for murder since it negated the likelihood that the shooting was accidental. (Illgen, 145 Ill. 2d at 366, 583 N.E.2d at 522.) The court held that absent a clear abuse of discretion, it could not rule that the probative value of the evidence was outweighed by its prejudicial effect because the circuit court was better able to determine the effect of the evidence on the jury. (Illgen, 145 Ill. 2d at 375-76, 583 N.E.2d at 524-25.) Moreover, the court stated that the limiting instruction “substantially reduced any prejudicial effect created by the admission of the prior-offense evidence.” (Illgen, 145 Ill. 2d at 376, 583 N.E.2d at 525.) The court noted that faith in the jury to follow instructions and properly separate issues is “the cornerstone of the jury system.” Illgen, 145 Ill. 2d at 376, 583 N.E.2d at 525.

In the instant case, defendant claims that the other crime evidence served no valid purpose and merely persuaded the jury that he was criminally predisposed. However, as demonstrated by Illgen, we believe that the evidence is probative of defendant’s intent. Since defendant claims that complainant consented to his advances, it was appropriate under Illgen to admit the prior crime evidence and allow the jury to determine if he acted with an innocent frame of mind. The two crimes are similar enough to satisfy the less stringent test that is applied when evidence is admitted to prove intent. Both victims were abducted while walking alone on the street and taken to another location; both were grabbed from behind by the neck; and both women were beaten, choked and bitten. Moreover, as in Illgen, the circuit court instructed the jury to limit their consideration of the evidence to issues of motive, intent, and design. Therefore, it cannot be said that the prejudicial effect of the evidence outweighed its probative value.

Defendant relies on People v. Barbour (1982), 106 Ill. App. 3d 993, 436 N.E.2d 667, for his contention that the evidence was improperly admitted. In Barbour, this court reversed a conviction and remanded the case for a new trial when it held that no proper purpose existed to admit evidence of two earlier “date rapes” in a prosecution for “date rape.” The State offered the evidence to prove the defendant’s modus operandi and thereby establish the identity of the offender. The court held that such evidence was irrelevant to the issue of identity because the defendant admitted having intercourse with all three women, thereby making the issue moot. (Barbour, 106 Ill. App. 3d at 1000, 436 N.E.2d at 673.) Moreover, the court ruled that the alleged rapes were too dissimilar to satisfy the stringent test of admission for modus operandi evidence. (Barbour, 106 Ill. App. 3d at 1000, 436 N.E.2d at 672.) The court did recognize, however, that other crime evidence which shows intent is admissible. Barbour, 106 Ill. App. 3d at 1001, 436 N.E.2d at 673.

Defendant’s reliance on Barbour is misplaced. Unlike the prosecution in Barbour, the State in the instant case did not offer the evidence as proof of modus operandi, but rather as proof of the absence of an innocent frame of mind. Thus, because such evidence is admissible to prove intent, the logic of Barbour is inapplicable to this case. Therefore, we hold that no abuse of discretion occurred and that the evidence of the prior crime was properly admitted even though identity was not in issue.

Defendant next contends that he was unfairly prejudiced by the State’s closing argument when it argued to the jury that the evidence showed “a common pattern,” because the evidence was not admitted for the purpose of establishing modus operandi. The State responds, however, that defendant did not object to the statement at trial and that therefore the issue is waived for review. The State argues in the alternative that any possible error was merely harmless because the jury was properly instructed to limit its consideration of the evidence to intent, motive, and design.

A court will not reverse a conviction as a result of an improper argument unless the statements resulted in substantial prejudice or they served no purpose other than to inflame the jury. (People v. Lewis (1990), 198 Ill. App. 3d 976, 984, 556 N.E.2d 697, 702.) Moreover, a properly instructed jury is assumed to be able to separate the issues and reach a correct result. (People v. Illgen (1991), 145 Ill. 2d 353, 376, 583 N.E.2d 515, 525.) We conclude that defendant suffered no prejudice as a result of the State’s argument.

Defendant’s last contention is that he was prejudiced by the publication to the jury of photographs of Z.M.’s injuries. He claims that the probative value of the pictures is outweighed by their prejudicial effect and that their publication gave Z.M.’s testimony undue emphasis. The State responds that the photographs were properly published since they corroborated Z.M.’s testimony.

The weighing of the probative value against the prejudicial effect of a particular piece of evidence is within the sound discretion of the circuit court, and the decision as to which items of evidence should be published to the jury will not be disturbed absent a clear showing of abuse of that discretion. (See People v. Lucas (1989), 132 Ill. 2d 399, 439, 548 N.E.2d 1003, 1019-20.) In the instant case, we find no abuse of that discretion.

For all the reasons stated above, we affirm the judgment of the circuit court.

Affirmed.

HARTMAN, P.J., and McCORMICK, J., concur.


author: PRESIDING JUSTICE McNULTY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALFRED BROWN, Defendant-Appellant.
    First District (5th Division)
    No. 1-90-3305
    Opinion filed December 4, 1992.

      Rita A. Fry, Public Defender, of Chicago (Greg Koster, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Maureen Hartón, and Patrick Finley, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McNULTY

delivered the opinion of the court:

Following a plea of guilty to two counts of felony murder, aggravated arson, and arson, defendant Alfred Brown was sentenced to natural life in prison. Defendant now appeals, alleging that his plea was involuntary pursuant to amendments VI and XIV of the United States Constitution and section 104 — 11(a) of the Code of Criminal Procedure of 1963 (U.S. Const., amends. VI, XIV; Ill. Rev. Stat. 1989, ch. 38, par. 104-11(a)), as it was not made knowingly, and that the trial judge erred by denying his motion to withdraw the guilty plea. For the reasons which follow, we affirm the judgment of the trial court.

At defendant’s trial, which commenced on September 10, 1990, Chicago fireman Nicholas Infante testified that at 2:45 a.m. on October 23, 1988, he responded to a fire call at 3148 West Jackson in Chicago. Additional trial testimony established that the fire had been deliberately set and that two bodies had been discovered in the wreckage. In the course of the investigation, police had interviewed defendant, who agreed to accompany them to area headquarters for questioning, which did in fact lead to defendant’s formal arrest and court-reported statement. In his statement defendant acknowledged that he and a man named “Jerry” went into an alley behind 3148 West Jackson and set a fire for “kicks.” Defendant further stated that he did not like one of the victims because he had called defendant a drunk a few days earlier. Later defendant admitted that he alone had started the fire and had implicated “Jerry” because of a fight with him.

Before trial commenced defendant had filed a motion to suppress his out-of-court statements. A hearing was held on this motion, but a transcript of this hearing was not made a part of the record on appeal. On the day of defendant’s jury trial, but before it began, the court denied defendant’s motion to suppress and defense counsel stated for the record that nothing had occurred at the suppression hearing that was beneficial to defendant’s case.

On the third day of trial, defense counsel informed the court that defendant had offered to plead guilty in exchange for a sentence of 60 years’ imprisonment. The court informed defense counsel that since the case was in its third day of jury trial he would neither “conference” the case nor participate in plea negotiations at that point, but would accept only a blind plea to the charges, the available sentencing alternatives for which were natural life imprisonment or death.

After further consultation with defendant, defense counsel informed the court that they had advised defendant about the consequences of a blind plea of guilty and that he wished to consult with family members before deciding what to do. The court then passed the case to give defendant an opportunity to talk with his family.

When the case was recalled, defense counsel informed the court that defendant would be entering a blind plea of guilty.

The court admonished defendant that if he pled guilty to the offenses of aggravated arson and two counts of murder, with one count for each victim, the only two sentences possible were natural life imprisonment without parole, or death, and asked him if he understood. Defendant responded affirmatively. The court also informed defendant of the maximum and minimum sentences available for aggravated arson and arson, and again defendant said he understood. Next, the court told defendant that he had a right to continue to plead not guilty, but that if he pled guilty his jury trial would end and he would give up his right to confront the State’s witnesses and present a defense. When defendant said he did not understand those rights, the court further explained to defendant that he was giving up his right to testify in his own defense, to present any witnesses and to put on a defense. Defendant then stated that he understood.

Defendant also admitted that no one had forced, threatened him or made promises to him to induce his guilty plea. Defendant further stipulated to the factual basis for the plea.

The court then found that defendant had waived his rights knowingly and intelligently, and had voluntarily entered into the guilty plea. The court further found that defendant knew that the court was bound by no plea agreement and that the court alone would determine the sentence. The court then confirmed that the prosecution still sought the death penalty, ordered a presentence report, and continued the case for a sentencing hearing.

On the date of the sentencing hearing defendant filed a motion to vacate his guilty plea and judgment entered thereon pursuant to Supreme Court Rule 604(d). 134 Ill. 2d R. 604(d).

At the hearing on this motion, defense counsel noted that the pretrial psychiatrist’s report found defendant fit for trial with medication. Counsel then stated that after the entry of the plea, defendant had informed counsel that he had not taken his prescribed medication, lithium, either during trial or before entering his plea of guilty. Counsel then argued that defendant’s failure to take the lithium placed him under severe emotional distress and depression, thus rendering him unfit to stand trial or to enter into a guilty plea voluntarily. Appended to the motion to vacate the guilty plea was defendant’s handwritten statement setting forth his reasons for pleading guilty. Defendant’s handwritten statement listed four reasons explaining his decision to plead guilty: first, his failure to get his inculpatory statement suppressed; second, his emotional distress; third, his ceasing to take the medicine for one day which caused high blood pressure, blurry vision and a desire to “charge energy level”; and fourth, his going to the law library.

The court examined the transcript of the guilty plea proceedings, together with defendant’s handwritten statement appended to his motion to withdraw the plea. Thereafter, the court found defendant to be cognizant, rational, not extremely disturbed and not proven mentally ill “now or then.” It then denied the motion to withdraw his plea, conducted a sentencing hearing (at which defendant addressed the court and for the first time denied commission of the offense) and sentenced defendant to natural life imprisonment.

The question of whether a bona fide doubt of defendant’s fitness to stand trial has been raised rests largely within the discretion of the trial court. (People v. Schwab (1986), 151 Ill. App. 3d 424, 502 N.E.2d 815.) The reviewing court in Schwab observed: “The person most likely to be aware of the inability of defendant to adequately assist in the presentation of his defense would be defense counsel.” (Schwab, 151 Ill. App. 3d at 431-32, 502 N.E.2d at 820.) Yet defense counsel in the instant action, like defense counsel in Schwab, never indicated his client’s inability to comprehend the charges against him. Furthermore, counsel never stated that defendant was unable to understand either the consequences of offering to plead two days into trial, or the ramifications of a blind guilty plea. Defense counsel did not raise any questions about defendant’s fitness to enter such a plea and told the court only that defendant requested that he be allowed to confer with his family before entering the plea.

Additionally, before accepting defendant’s guilty plea, the court gave defendant admonishments that met and exceeded those required by Supreme Court Rule 402. (134 Ill. 2d R. 402.) Defendant responded affirmatively to the question of whether he understood each and every admonishment. Defendant affirmed that he read and wrote the English language, that the court and not the jury would determine the sentence, and that he understood the only sentences available for the crimes to which he was pleading guilty were death or natural life imprisonment with no chance of parole.

At one point in the guilty plea proceedings, defendant stated that he did not understand certain rights he had and the following colloquy took place:

“THE COURT: You have a right to persist in your previously entered plea of not guilty. By pleading guilty *** do you understand that there will no longer be a trial *** you will have no trial of any kind, which means that you’re giving up your right to further confront any witnesses who appeared to testify against you, and have your lawyer cross-examine those witnesses, to have your attorney present any evidence that you feel you might have. Do you understand?
MR. BROWN: I don’t understand those rights.
THE COURT: In other words, by pleading guilty the trial will end, you will no longer have a right to, for example, take the stand in your own defense or on your own behalf to present and call witnesses *** to testify for you during the course of the trial, and to present any defense in the trial. Do you understand?
MR. BROWN: Yes, sir.”

At the conclusion of the plea proceeding, defense counsel addressed the court, informing it for the first time that defendant’s guilty plea had been against counsel’s advice, stating as follows:

“MR. GREZECA [Assistant Public Defender]: I explained to him [defendant] our entire trial strategy, and our willingness and our advice to go ahead with this trial, and he’s wishing— Alfred, are you still wishing to plead guilty at this time?
MR. BROWN: Yes, I am.
THE COURT: The remarks are of record. Mr. Brown are you satisfied with the professional services you received from the Cook County Public Defender’s Office?
MR. BROWN: Yes, I am.”

No issue was raised by any party before or during these proceedings concerning defendant’s fitness to enter a guilty plea. Accordingly, the court found that based on defendant’s demeanor during the suppression motion, his conduct at trial and his reasoning as set forth in his motion to vacate that defendant had been fit to enter a guilty plea. Furthermore, because proper admonishments had been given as required by Supreme Court Rule 402 (134 Ill. 2d R. 402), the motion to vacate was denied.

Prior to pronouncing sentence the court remarked that it believed that defendant had been disturbed in his life from time to time, but was of the opinion that defendant was cognizant and aware before trial, during trial and also at the present. Although the court found defendant’s handwritten exhibit appended to the motion to vacate his plea to be rambling, inarticulate and repetitive, it further concluded that it did not demonstrate that defendant, either now or then, was mentally ill.

It is fundamental law that an unfit person may not plead, be tried, convicted or sentenced. To be fit a person must understand the nature of the proceeding and be able to cooperate in his or her defense. Boykin v. Alabama (1969), 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709; Pate v. Robinson (1966), 383 U.S. 375, 15 L. Ed. 2d 815, 86 S. Ct. 836; People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677; People v. Salvaggio (1976), 38 Ill. App. 3d 482, 348 N.E.2d 243.

In his appeal from the trial court’s denial of his request to vacate his guilty plea and order a fitness examination, defendant relies principally on People v. Jackson (1978), 57 Ill. App. 3d 809, 373 N.E.2d 583. In Jackson, the defendant had an initial fitness hearing at which a psychiatrist testified that defendant understood the nature of the proceedings, but due to his mental illness was unable to cooperate with his counsel in his own defense. Based upon that testimony Jackson was found unfit to stand trial.

At a second fitness hearing conducted about six months later, the Jackson court found the defendant fit after the same psychiatrist testified that defendant understood the charges and that, with medication (tranquilizers), he could cooperate with his counsel. The trial commenced and concluded, after which the court scheduled a sentencing hearing one month later and ordered a fitness examination with the findings to be submitted at sentencing. When the sentencing hearing began the court was informed that the defendant had not been examined for fitness as ordered and that prior to the present hearing had not received the medication necessary to maintain his fitness. Notwithstanding this information the court imposed sentence on the conviction. The reviewing court held that the trial court erred in failing to order sua sponte a fitness examination to determine whether defendant was fit to be sentenced. The holding in Jackson was premised upon two bases: first, the reviewing court found that “[b]ecause the [trial] court’s finding of fitness prior to trial was based upon medical testimony that defendant was able to cooperate with his counsel only while being maintained with the prescribed medication and that at the time of sentencing he had not received his medication, we believe a bona fide doubt was raised as to his fitness” (Jackson, 57 Ill. App. 3d at 814, 373 N.E.2d at 587); second, the trial court had indicated its own concern about defendant’s fitness when it ordered the presentence fitness examination, which had not been performed at the time of the sentencing hearing.

The facts of the case at bar are quite different from those in Jackson. Alfred Brown had never been found unfit, nor had a fitness hearing been requested or conducted prior to his trial and plea. He had been examined by three separate psychiatrists at three separate times and had been found fit for trial. On the day of trial, the court had a written report signed by psychiatrist Dr. Gerson Kaplan that defendant was fit to stand trial with medication. At no time prior to his motion to withdraw his guilty plea had defendant advised the court that he had failed to take his medication nor had counsel for any party requested a hearing on defendant’s fitness. Unlike Jackson there had been no fitness hearings at which there was psychiatric testimony that defendant’s fitness for trial could only be maintained by continued use of prescribed medication. In addition, in the case at bar, after the acceptance of the guilty plea no party requested, nor does the record reveal any facts that would have prompted the court sua sponte to order a determination of fitness to be sentenced. Therefore, we are of the opinion that Jackson is not determinative of the outcome in this case.

In People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677, the supreme court stated that the determination of whether there is a bona fide doubt of fitness for trial depends upon the facts of each case. The court held that counsel's suggestion that defendant had limited mental capacity is not sufficient to raise a bona fide doubt of defendant’s fitness for trial where other evidence pointed clearly to defendant’s comprehension of his predicament and the import of the proceeding.

The relation between a history of mental illness, administration of medication, bona fide doubt of fitness to plead, and administration of medication during pretrial incarceration was discussed in People v. Daubman (1989), 190 Ill. App. 3d 684, 546 N.E.2d 1079. In Daubman defendant entered a negotiated plea to murder in exchange for an agreed sentence of life imprisonment without possibility of parole. Prior to accepting the plea the court fully admonished defendant pursuant to Supreme Court Rule 402, including the sentence to be imposed and the defendant responded that he understood the admonitions and that his plea was voluntary.

Later, defendant filed a motion to withdraw his plea on the grounds that: (1) he had only an eighth-grade education; (2) he had continually used drugs and alcohol from age 12 to the present; and (3) while incarcerated had been seen by medical doctors who prescribed Mellaril and that his ingestion of 10 milligrams on the date of his plea hearing had made him “spacey.” The record further revealed that Dr. Ziporyn, a psychiatrist, diagnosed the defendant as a juvenile as suffering from “brain syndrome.” Defendant also testified that he had been examined during his pretrial incarceration by a psychiatrist, Dr. Taugott, whose evaluation his attorneys had advised him was not helpful to his case. The trial court refused to vacate defendant’s plea.

The reviewing court upheld this ruling, finding that the foregoing facts were not sufficient to raise a bona fide doubt of defendant’s competence to plead. The court noted that the record demonstrated that defendant made clear and articulate responses at the plea hearing and the withdrawal motion hearing indicative of his understanding of both proceedings. There was nothing in the trial court’s personal observation of defendant to alert the court that defendant was not fit to plead.

In Daubman, as in the case at bar, defendant had never been found unfit. In Daubman, the court had to consider the defendant’s mental history and his ingestion of Mellaril as it bore on the issue of defendant’s fitness to plead. In the present case the court had to consider defendant’s mental history and his failure to take prescribed medicine as it related to the question of fitness to plead. In Daubman the reviewing court found that the trial court’s opportunity to observe defendant and evaluate his responses at the plea hearing and motion to withdraw hearing amply supported the trial court’s conclusion that he was fit to plead. In the present case the trial court’s opportunity to observe defendant was greater than that in Daubman.

Finally, a brief discussion of a recent case which considered the effect of failure to take prescribed medication on fitness to stand trial is in order.

In People v. Hall (1989), 186 Ill. App. 3d 123, 541 N.E.2d 1369, a fitness hearing was conducted. The State’s psychiatrist testified that defendant would be fit to stand trial if he received antipsychotic medication. He also stated that, without the medication, defendant could regress to his previous state, although not immediately, but over several weeks. The trial court found defendant fit to stand trial after the parties stipulated that the defense psychiatrist agreed that defendant would be fit with medication.

After a jury returned a verdict against the defendant, defense counsel requested a presentence fitness examination. Counsel based his request on information that defendant had not taken his medication on the day the jury returned the verdict. The trial court denied this request. In upholding the trial court’s decision, the reviewing court found that counsel’s request was based on his concern that defendant continue to take his medication up to the time of sentencing, and “was not based on any knowledge that defendant had not been taking his medication prior to that day or would not take it thereafter.” (Hall, 186 Ill. App. 3d at 132, 541 N.E.2d at 1375.) “Defense counsel’s first post-trial statements to the court regarding defendant’s fitness provided little support, if any, for a finding of bona fide doubt of fitness, either to stand trial or to be sentenced.” Hall, 186 Ill. App. 3d at 132, 541 N.E.2d at 1375.

Prior to defendant’s sentencing, defense counsel informed the court that defendant had not received his medication since his transfer to Division VI of the Cook County jail, about one month before trial. He further stated that defendant had been found in the past to require medication to be fit for legal purposes. Finally he informed the court that the probation officer who conducted the presentence interview described defendant as “somewhat distant to reality.” (Hall, 186 Ill. App. 3d at 132, 541 N.E.2d at 1375.) Again, the trial court denied counsel’s request for a fitness examination.

In affirming the trial court’s ruling, the appellate court stated:

“In contrast to his prior post-trial statements to the court, defense counsel did state on May 21 [the date of the sentencing hearing] that ‘it was [his] knowledge’ that defendant had not received any medication in Division VI. *** While defense counsel, as an officer of the court, must be presumed to have spoken truthfully regarding his ‘knowledge’ [citation], his failure to state any underlying facts prevented the trial court from independently evaluating the reliability of that knowledge. *** Defense counsel’s statements to the trial court, prior to defendant’s sentencing, thus failed to raise a bona fide doubt of fitness.
Moreover, neither defendant’s prior psychiatric history nor the probation officer’s observation required the trial court to grant a fitness examination or hearing. In this regard, we do not believe the court abused its discretion in relying, instead, upon its own observations of defendant throughout the trial [citation] and its observation and questioning of him prior to sentencing [citation] to deny the request for a fitness examination.” (Emphasis in original.) Hall, 186 Ill. App. 3d at 132-33, 541 N.E.2d at 1375.

See also People v. Ralon (1991), 211 Ill. App. 3d 927, 570 N.E.2d 742.

Applying the court’s analysis in Daubman and Hall to the facts in the case at bar, it is apparent that the trial court did not abuse its discretion by refusing to allow defendant, Alfred Brown, to withdraw his plea or to order a fitness examination.

First, defendant Brown like Daubman had never been found unfit. In fact he had been found fit on three different occasions by three different doctors.

Second, although the letter from the psychiatrist found defendant fit for trial with medication, there was no testimony from anyone or other evidence indicating that defendant’s failure to take his prescribed medication would render him unfit.

Third, as in Hall, defense counsel’s statement that defendant had not been taking his medication was based upon defendant’s statement alone without any other evidence permitting the trial court to make an independent assessment of its effect on defendant’s ability to understand and participate in the court proceedings.

Fourth, unlike the probation officer’s assessment in Hall that Hall was “somewhat distant to reality,” defendant Brown’s probation officer in his presentence report described him as quite cooperative.

Fifth, the trial court had extensive opportunities to observe defendant at numerous proceedings above described. Initially the court conducted a suppression hearing. The transcript of that hearing was not made part of the record on review. Defense counsel’s remarks included in the record on review, however, indicated that information adduced at that hearing was not helpful to the defendant. We take that remark at face value as it bears on the issue of defendant’s fitness to be tried or to plead.

Finally, after the motion to withdraw his plea had been denied, the sentencing hearing commenced. The court again had an opportunity to observe defendant when he exercised his right of allocution and addressed the court. In that address he acknowledged the efforts of his attorneys to get his guilty plea withdrawn. He then addressed the families of the fire victims and denied complicity in the crimes. This behavior does not indicate a lack of understanding of the proceedings and further supports the court’s conclusion that no bona fide doubt of fitness had been raised.

For the reasons set forth above, we affirm.

Affirmed.

LORENZ and MURRAY, JJ., concur.


author: JUSTICE McMORROW

text:
    JOSEPHINE SOMPOLSKI, As Independent Ex’r of the Estate of Luca Mele, Deceased, Plaintiff-Appellant, v. HENRY MILLER, Defendant-Appellee.
    First District (4th Division)
    No. 1-91-4098
    Opinion filed December 3, 1992.

      R. Mark Maritote, of Robert Schey & Associates, of Chicago, for appellant.
    Daniel F. Konicek, of Connelly, Mustes & Schroeder, of Geneva, for appellee.
   JUSTICE McMORROW

delivered the opinion of the court:

Plaintiff Josephine Sompolski (plaintiff) appeals from the trial court’s dismissal of her wrongful death claim against defendant Henry Miller (defendant). Plaintiff filed the wrongful death claim as the second count in a pleading that sought to amend a single-count personal injury suit previously filed by plaintiff’s father, Lucas Mele (Mele), who died after the personal injury claim had been filed. We conclude that plaintiff’s wrongful death suit related back to the original personal injury claim filed by Mele, and that the wrongful death suit was therefore not barred by the two-year statute of limitations. Accordingly, we reverse and remand.

The record reveals the following. On April 9, 1986, Mele filed suit against defendant for personal injuries Mele allegedly sustained when he was struck by a vehicle operated by defendant. Mele alleged in his complaint that he was “severely and permanently injured” as a result of the accident, which had occurred on December 10, 1985.

After defendant filed an appearance and answer, the parties proceeded to discovery. In March 1988, plaintiff’s counsel filed plaintiff’s response to defendant’s written interrogatories. In this response, plaintiff’s attorney stated that plaintiff’s head, legs, arms and torso were injured from the accident. Plaintiff’s counsel also stated that plaintiff “is not mentally alert” and “cannot walk, eat or talk.” Plaintiff’s attorney further stated that plaintiffs’ legs were “not functioning because of broken bones,” and that plaintiff had sustained “loss of mobility” to his left arm and hand, because of the accident. With respect to further details regarding the nature of the plaintiff’s injuries and the medical treatments plaintiff had received therefor, plaintiff’s counsel referred defendant to “medical records previously subpoenaed.”

On November 14, 1988, Mele died. Seven months later, on May 25, 1989, plaintiff filed a motion to substitute herself for Mele, and to appear in a representative capacity for him, in the personal injury suit filed against defendant. Plaintiff also filed Mele’s will in the probate division of the circuit court of Cook County on May 24, 1989. Plaintiff’s motion to be named as Mele’s representative in the personal injury claim was allowed by the trial court in an order entered June 20, 1989. In June 1991, plaintiff’s counsel filed answers to defendant’s supplemental written interrogatories. With respect to the nature of the plaintiff’s injuries, the response indicated there was “[n]o new information.”

On September 27, 1991, more than two years following Mele’s death, plaintiff filed an amended complaint that included an additional count for damages relating to Mele’s wrongful death. This count alleged that Mele was “severely and permanently injured” by the December 10, 1985, automobile accident, which “caused his death on November 14, 1988.” Plaintiff was granted leave to file this amended complaint instanter.

On October 10, 1991, plaintiff filed a motion to continue the date of trial, which had been set for October 21, 1991. In the motion, plaintiff stated that “[o]n information and belief, defendant HENRY MILLER, died several years past and his death has never been spread of record nor his estate substituted as a party defendant.” Plaintiff stated that “[i]n light of this development, plaintiffs are unable to proceed to trial at this time and respectfully request this Court continue this matter to a date certain.” Based upon plaintiff’s motion, the court vacated the scheduled trial date and continued the matter for status hearing on December 6,1991.

On October 11, 1991, in response to plaintiff’s amended complaint, defendant’s counsel filed a motion to dismiss the wrongful death claim with prejudice. (Ill. Rev. Stat. 1991, ch. 110, par. 2-619(a)(9).) Defendant’s attorney argued that the claim should be dismissed because it had been filed more than two years after Mele’s death and was therefore barred by the statute of limitations. (Ill. Rev. Stat. 1989, ch. 70, par. 2 (wrongful death claim must be filed within two years following death).) Following briefing and argument, the trial court allowed the motion and dismissed plaintiff’s wrongful death claim with prejudice. The trial court also allowed the motion of defendant’s attorney that the death of Henry Miller be suggested of record. This appeal followed.

Plaintiff argues that her wrongful death claim was not barred by the two-year statute of limitations, because this claim related back to the previously filed personal injury suit, which had been timely filed. To support this argument, plaintiff relies upon section 2 -616(b) of the Code of Civil Procedure. Under section 2-616(b), a cause of action alleged in an amended complaint filed after the expiration of the limitations period will relate back to the filing of the original complaint, if the original pleading was timely filed, and if the cause of action in the amended complaint “grew out of the same transaction or occurrence set up in the original pleading.” Ill. Rev. Stat. 1991, ch. 110, par. 2-616(b).

The purpose of section 2-616(b) is “to insure fairness to the litigants rather than unduly enhance the technical considerations of common-law pleadings. [Citation.]” (Albany Park Service, Inc. v. Kenny-Pashen Joint Venture (1991), 209 Ill. App. 3d 432, 436, 568 N.E.2d 230; United Parcel Service v. Church’s Fried Chicken, Inc. (1988), 174 Ill. App. 3d 378, 380, 528 N.E.2d 367.) To further this purpose, the court should liberally construe the requirements of section 2-616(b) in favor of hearing plaintiff’s claim. Williams v. Board of Education (1991), 222 Ill. App. 3d 559, 565, 584 N.E.2d 257.

The right to amend does not depend on whether the cause of action set out in the amendment is substantially the same as that stated in the original pleading, but depends on whether the amendment relates back to the occurrence set out in the original pleading. (Zeh v. Wheeler (1986), 111 Ill. 2d 266, 272-73, 489 N.E.2d 1342; Krieger v. Village of Carpentersville (1972), 8 Ill. App. 3d 243, 246, 289 N.E.2d 481.) As long as the defendant has been apprised of the essential information necessary to prepare a defense, an amended complaint will be deemed to relate back to the original pleading (Weidner v. Carle Foundation Hospital (1987), 159 Ill. App. 3d 710, 712, 512 N.E.2d 824), and a defendant is not prejudiced by allowance of an amendment “so long as his attention was directed, within the time prescribed or limited, to the facts that form the basis of the claim asserted against him.” (Simmons v. Hendricks (1965), 32 Ill. 2d 489, 495, 207 N.E.2d 440.) In addition, the liberal provisions of section 2-616(b) apply regardless of whether the claims at issue are governed by a statute of limitations or a prescription that limits the right to bring suit. Simmons, 32 Ill. 2d at 494.

With respect to whether the amended pleading arose from the “same transaction or occurrence” as that set out in the original complaint, the Illinois Supreme Court has observed that “ ‘[i]nstead of splitting hairs over types of faults, the [proper] inquiry is whether there is enough in the original description to indicate that plaintiff is not attempting to slip in an entirely distinct claim in violation of the spirit of the limitations act.’ ” (Simmons, 32 Ill. 2d at 497, quoting McCaskill, Illinois Civil Practice Act Annotated 126-27 (1936).) The court has directed that the “ ‘test is to be a real one, rather than one based upon artificial rules of pleading’ ” and that “ ‘[i]dentity of true claim, which lies behind the descriptions, is the test.’ ” Simmons, 32 Ill. 2d at 497, quoting McCaskill, Illinois Civil Practice Act Annotated 126-27 (1936).

The record in the instant cause indicates that Mele’s original personal injury suit was timely filed. The record shows that Mele alleged in his original pleading that he was injured by an automobile operated by defendant on December 10, 1985. Mele’s complaint was filed only months after the accident, in April 1986. The record also establishes that the additional wrongful death claim filed by plaintiff arose from the same transaction or occurrence as that at issue in Mele’s original complaint, i.e., the December 1985 automobile accident.

Moreover, the record reveals that the defendant was advised of the essential facts necessary to prepare his defense. Mele’s original complaint alleged that he had been severely injured in the accident. The initial response to defendant’s written interrogatories provided defendant with details of Mele’s medical condition, including the circumstance that Mele was not mentally alert and could not walk, eat, or talk. Defendant was timely informed that Mele had died, and plaintiff was properly granted leave to substitute herself for Mele less than two years after his death.

In light of these considerations, plaintiff’s wrongful death suit was not an attempt to “slip in an entirely distinct claim,” but was instead an effort to recover full damages for the injuries Mele sustained as a result of the defendant’s alleged negligence in the December 1985 automobile accident. Consequently, plaintiff’s wrongful death claim related back to Mele’s original personal injury suit.

Defendant’s attorney argues that plaintiff’s wrongful death suit was a new cause of action alleging a new fact, i.e., Mele’s death, not stated in the original personal injury claim. Defendant’s counsel contends that because of the additional fact of Mele’s death, the original personal injury suit and the subsequent wrongful death claim do not arise “from the same transaction or occurrence.” We disagree.

The case at bar is substantially similar to Cain v. New York Central R.R. Co. (1962), 35 Ill. App. 2d 333, 182 N.E.2d 910. In Cain, the plaintiff husband originally filed a wrongful death claim alleging that the defendant’s negligence had proximately caused his wife’s death. After the statute of limitations had expired, the plaintiff attempted to amend his pleading to include a survival action recovering damages for the decedent’s injuries before her death. The court held that the plaintiff’s survival claim related back to the date that the original wrongful death suit had been filed. The court rejected the defendant’s argument that relation back was not proper because a cause of action for wrongful death is separate and distinct from an action for personal injuries. In so ruling, the court observed that “both counts are based on the same occurrence and the negligence charged in both counts is identical.” 35 Ill. App. 2d at 338-39; see also Frankenthal v. Grand Trunk Western R.R. Co. (1983), 120 Ill. App. 3d 409, 418, 458 N.E.2d 530 (plaintiff should have been permitted to refile original wrongful death claim and to add survival action that related back to date wrongful death suit originally filed).

The court’s reasoning in Cain is equally applicable to the case at bar. Both plaintiff’s wrongful death suit and her survival action are based on the same occurrence, i.e., the December 1985 accident. In addition, both claims sound in negligence and make the same allegations respecting defendant’s alleged liability for Mele’s injuries. Based upon this precedent, plaintiff’s amended complaint, seeking damages for wrongful death, related back to the original pleading that sought damages for personal injuries. See also Lamont v. Wolfe (1983), 142 Cal. App. 3d 375, 190 Cal. Rptr. 874; Caffaro v. Trayna (1974), 35 N.Y.2d 245, 360 N.Y.S.2d 847, 319 N.E.2d 174 (plaintiff’s amended complaint alleging wrongful death claim related back to original pleading for personal injuries); see generally Annot., Right to Amend Pending Personal Injury Action by Including Action for Wrongful Death after Statute of Limitations Has Run against Independent Death Action, 71 A.L.R.3d 933 (1976).

The Illinois decisions upon which defendant’s attorney relies are factually distinguishable from the case at bar, as in each the plaintiff’s amended pleading attempted to add a new party and to include a new cause of action for that new party’s recovery. (Janetis v. Christensen (1990), 200 Ill. App. 3d 581, 558 N.E.2d 304 (wife’s suit for family expenses time-barred and did not relate back to date husband filed his original personal injury complaint, because family expense claim was new cause of action by new party); McGinnis v. A.R. Abrams, Inc. (1986), 141 Ill. App. 3d 417, 490 N.E.2d 115 (plaintiff’s spouse’s suit for loss of consortium did not relate back to plaintiff’s suit for personal injuries).) These circumstances are not presented in the instant cause. The plaintiff’s amended pleading does not seek to add a “new party” to the suit, since plaintiff had been properly allowed to substitute herself for Mele upon the latter’s death. See Ill. Rev. Stat. 1991, ch. 110, par. 2-1008 (substitution of parties); Marcus v. Art Nissen & Son, Inc. (1991), 224 Ill. App. 3d 464, 586 N.E.2d 694.

Defendant also relies upon an unreported Federal district court decision that declined to allow a plaintiff’s amended complaint for wrongful death to relate back to the previously filed personal injury suit. (Murray v. Manville Corp. (N.D. Ill. Oct. 4, 1990), No. 87-C-5545 (memorandum opinion affirmed on rehearing December 21, 1990).) We note that the Federal district court’s decision is not binding on this court (see, e.g., People v. Fields (1990), 135 Ill. 2d 18, 72, 552 N.E.2d 791), and we decline to adopt that decision of the Federal district court herein.

Defendant’s attorney also appears to argue that relation back would be inequitable under the facts of this case, since the cause was set for trial only a few weeks before plaintiff filed her amended complaint. We note, however, that the cause was not rescheduled for trial because of plaintiff’s filing of an amended complaint. According to the record, the scheduled trial date was continued because defendant’s counsel had failed to alert the court, or spread of record, the circumstance that defendant had died long before plaintiff filed her amended complaint. We express no opinion with respect to whether this cause could or should proceed absent substitution of a personal representative on behalf of the deceased defendant (see Ill. Rev. Stat. 1991, ch. 110, par. 2-1008 (requiring substitution upon death of party)), and we note our amazement that defendant’s counsel chose to file a motion to dismiss plaintiff’s amended complaint on defendant’s behalf, even though the defendant was deceased at the time the motion was filed. (See, e.g., In re Marriage of Fredricksen (1987), 159 Ill. App. 3d 743, 745, 512 N.E.2d 1080 (attorney-client relationship terminates upon client’s death and counsel’s subsequent authority to represent deceased client’s interest “must come from the personal representatives of the decedent”).) Under the circumstances before us, we find defense counsel’s argument in this respect inadequate basis to conclude that plaintiff’s wrongful death claim did not relate back to Mele’s timely filed personal injury suit.

For the reasons stated, the judgment of the circuit court of Cook County is reversed and the cause remanded for further proceedings consistent herewith.

Reversed and remanded.

JOHNSON and LINN, JJ., concur.


author: JUSTICE SCARIANO JUSTICE McCORMICK,

text:
    DEANNA WILLIAMS, a Minor, by and through her Mother and Next Friend, Tereatha Williams Knox, Plaintiff-Appellant, v. MARILYN ELKIN, Special Adm’r of the Estate of James F. Elkin, Deceased, Defendant-Appellee.
    First District (2nd Division)
    No. 1-90-3665
    Opinion filed December 8, 1992.

      Barclay & Damisch, Ltd., of Chicago (Mark W. Damisch, of counsel), for appellant.
    Williams & Montgomery, Ltd., of Chicago (Barry L. Kroll, James K. Horstman, Thomas F. Cameli, and Lloyd E. Williams, Jr., of counsel), for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court:

Just before 1 a.m. on June 16, 1985, a Buick which was being driven by plaintiff, Deanna Williams, collided on Vollmer Road in Olympia Fields, Illinois, with a Ford which was being driven by James F. Elkin. Plaintiff was severely injured in the collision, and Elkin died from injuries he sustained in the accident. Plaintiff subsequently sued Elkin’s estate to recover for her injuries.

Defendant was awarded summary judgment, supporting her motion with the discovery depositions of Edward Kilcullen and Officer Lytheria O’Connor. In opposition to the motion, plaintiff presented her own deposition, but the trial court ruled it inadmissible under the Dead Man’s Act (Ill. Rev. Stat. 1989, ch. 110, par. 8-201), and gave it no consideration.

Kilcullen testified that he was driving westbound on Vollmer Road, approaching Western Avenue, when he saw plaintiff’s Buick stopped in the westbound lane at the intersection, facing a green light in her favor. Kilcullen reached the intersection after the light turned red and he pulled up next to plaintiff. When the light turned green again plaintiff drove off, reaching a speed of about 40 to 45 miles per hour and getting about 15 car lengths ahead of Kilcullen. According to Kilcullen, the Buick “started to move to the left — just kind of eased its way over to its left.” Kilcullen saw Elkin’s Ford approaching in the eastbound lane, “it was clearly visible,” and he also observed the Buick go “about halfway across what was a double line in the road.” The Ford and the Buick were about 20 car lengths apart when the Buick crossed the center line. The Ford had its low beam headlights on and both lights were working. Kilcullen sped up, “blinked” his lights, and “sounded” his horn in an effort to alert plaintiff that she was across the center line, heading into oncoming traffic. Kilcullen was “something less than 10 car lengths behind the Buick when the two cars collided head on. He estimated that he saw the Ford for 10 seconds, and that the Buick was partially in the eastbound lane for three to four seconds before the crash. Kilcullen heard no screeching of brakes and no horns, other than his own, prior to impact.

Officer O’Connor stated in his deposition that he arrived at the scene about 10 minutes after the accident. It was a dry, clear night, with visibility “very good at a great distance,” with “natural light from the moon.” The road surface was excellent. There were no tire marks or skid marks at or near the scene of the accident. Elkin appeared to be dead, and plaintiff was trapped in her car, semiconscious. He found the Buick at about a 45-degree angle to the direction of traffic “the point of the front bumper back to *** the bottom of the windshield” was over the double line. The Ford was entirely off of the road on the shoulder south of the eastbound lane, at a 90-degree angle to the direction of traffic. He saw considerable debris from the accident in the eastbound lane.

Although plaintiff contended in the circuit court and in her brief on appeal that her testimony would be admissible against defendant, her counsel conceded in oral argument before this court that under the Dead Man’s Act plaintiff’s testimony regarding the events which took place immediately prior to and at the time of the accident would be inadmissible except as to the remaining defendants in this case, viz., the County of Cook, the Village of Olympia Fields, Miller Car Rental, Inc., and Michael Miller, as to whom plaintiffs case is still pending in circuit court.

“When a plaintiff appeals from a trial court’s order of summary judgment for a defendant, the only issue on appeal is whether ‘the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ (Ill. Rev. Stat. 1983, ch. 110, par. 2-1005.) If the documents that the trial court considers show that there is a genuine issue as to any material fact, summary judgment should not be granted. In ruling on a motion for summary judgment, the trial court must construe the pleadings, depositions, and affidavits in the light most favorable to the nonmoving party. If fair-minded persons could draw different conclusions from the evidence, the issues should be submitted to a jury to determine what conclusion seems most reasonable. Conversely, when the evidence shows that no material issues of fact has [sic] been raised, the moving party is entitled to judgment as a matter of law. (Artis v. Fibre Metal Products (1983), 115 Ill. App. 3d 228, 231-32, 450 N.E.2d 756, 758.) Further, negligence cases involving the question of the reasonableness of an individual’s conduct are within the scope of summary judgment, as is any other case. Mitchell v. Ralston (1971), 130 Ill. App. 2d 759, 762, 266 N.E.2d 424, 426.” Wilmere v. Stibolt (1987), 152 Ill. App. 3d 642, 646-47.

In Wilmere, which the trial court in the instant case held to be controlling in it awarding summary judgment to defendant, the plaintiff swerved out of his lane into oncoming traffic and collided with three vehicles, driven by the three defendants. The parties agreed that all three collisions occurred “in a matter of seconds.” (Wilmere, 152 Ill. App. 3d at 644). In affirming summary judgment for defendants the court stated:

“The general principle is that ‘ “a party having given another reasonable cause for alarm cannot complain that the person so alarmed has not exercised cool presence of mind, and thereby find protection from responsibility from damages resulting from the alarm.” ’ (Skala v. Lehon (1930), 258 Ill. App. 252, 258, quoting Wesley City Coal Co. v. Healer (1876), 84 Ill. 126, 129.) Courts, therefore, do not view a party’s acts with hindsight, but under all the circumstances by the standard of what a prudent person would have been likely to do under the same circumstances. Lesperance v. Wolff (1979), 79 Ill. App. 3d 136, 141, 398 N.E.2d 360, 364, quoting Skala v. Lehon (1930), 258 Ill. App. 252, 258.
Illinois courts have long held, therefore, that a sudden swerve into a defendant’s right-of-way by an approaching vehicle does not give rise to negligence by the defendant. (E.g., Sjostrom v. Sproule (1962), 34 Ill. App. 2d 338, 344-46, 181 N.E.2d 379, 382-83, relied upon in Mitchell v. Ralston (1971), 130 Ill. App. 2d 759, 762, 266 N.E.2d 424, 426.) Conversely, courts have held that a sudden swerve into a plaintiff’s right-of-way by an approaching vehicle does not give rise to contributory negligence by the plaintiff. Lesperance v. Wolff (1979), 79 Ill. App. 3d 136, 141, 398 N.E.2d 360, 364.
Plaintiffs stress that Illinois has adopted the doctrine of comparative negligence in its pure form. (Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886.) Plaintiffs argue, therefore, that summary judgment would be improper if a genuine issue of material fact existed as to whether any defendant was guilty of negligence that contributed to the accident, even if the contribution was only 1%. However, ‘the happening of an accident, of itself, does not raise any presumption of negligence on the part of the defendant.’ (Fahrforth v. Kwiatkowski (1967), 79 Ill. App. 2d 300, 303, 224 N.E.2d 641, 643.) Further, the adoption of comparative negligence did nothing to the sufficiency of proof required to establish a defendant’s negligence and also did not abolish the elements of a negligence cause of action; a plaintiff still must prove these elements. Lucker v. Arlington Park Race Track Corp. (1986), 142 Ill. App. 3d 872, 875, 492 N.E.2d 536, 539.” Wilmere, 152 Ill. App. 3d at 647-48.

In this case Kileullen’s deposition testimony was that one-third to one-half of plaintiff’s car was across the center line, in the eastbound lane, for only three to four seconds before the crash. Elkin’s car had its low beam headlights on. Plaintiff’s speed as she approached Elkin’s car was 40 to 45 miles per hour. When Officer O’Connor arrived at the scene 10 minutes after the accident, he found plaintiff’s car well over the double line of the roadway, at a 45-degree angle; and Elkin’s car was on the shoulder of the road, south of the eastbound lane, at a 90-degree angle to the direction of traffic. There was considerable debris from the accident in the eastbound lane.

We agree with the trial court that Kilcullen’s and O’Con-nor’s testimony fails to point to any evidence of negligence attributable to Elkin; it shows only that the cause of the accident was plaintiff’s abrupt invasion of the opposite side of the highway. But liability, unlike the Goddess Athena of Greek mythology, does not spring fully armed from the brow of Zeus. Negligence cannot be presumed; it is hornbook law, requiring no citation of authority, that it must be proved by the party alleging it. It is also first-year core curriculum in our law schools that a plaintiff who fails to establish the essential element of proximate cause has not presented a prima facie case of tort liability.

Consequently, we hold that the trial judge here was correct in relying upon Wilmere and the authorities cited therein, which hold that an incursion of but a very few seconds into a driver’s right-of-way by another vehicle approaching from an opposite lane does not warrant the conclusion that the offended driver must have been guilty of negligence for the accident to have happened. Nor, as a matter of law, can the offended driver be held guilty of contributory negligence. Lesperance v. Wolff (1979), 79 Ill. App. 3d 136, 141.

The issue in this case is whether there was any act or omission on Elkin’s part that could be considered the proximate cause of the collision and plaintiff’s injuries. We agree with the trial court that there is no triable issue of material fact regarding whether defendant was guilty of negligence with respect to plaintiff.

Accordingly, we affirm the judgment of the circuit court.

Affirmed.

DiVITO, J., concurs.

JUSTICE McCORMICK,

dissenting:

The issues presented in this case are whether, notwithstanding plaintiff’s culpability, Elkin could have done anything to avoid the accident, and whether Elkin’s headlights blinded plaintiff. The majority opinion concludes that under the facts and circumstances of this case, as a matter of law, Elkin could not reasonably have avoided the accident and Elkin’s headlights did not blind plaintiff. I take exception to these conclusions and respectfully state that under the facts and circumstances of this case, only the trier of fact can make these determinations. There are genuine issues as to material facts, and the order of summary judgment is improper.

The uncontradicted evidence in the record is that as plaintiff’s vehicle drifted towards Elkin’s vehicle, Elkin took no evasive action to avoid the collision. Kilcullen, an occurrence witness, stated that he pulled up next to plaintiff at a red light. When the light turned green, plaintiff drove off reaching a speed of about 45 miles per hour and getting 15 car lengths ahead of Kilcullen. Plaintiff’s car began to ease to its left and eventually crossed the center line into the eastbound traffic. At the point of plaintiff’s car’s entry into the eastbound lane of traffic, Elkin’s car was about 20 car lengths away. Kilcullen said, “I remember thinking that *** [Elkin’s] got to stop. It was the only way he had to avoid the impact.” Kilcullen stated that he saw Elkin’s car for about 10 seconds and plaintiff’s car was in the eastbound lane for 3 to 5 seconds before the crash. From the time that plaintiff’s car entered the eastbound lane, Kilcullen’s conduct is in stark contrast to Elkin’s. Kilcullen flashed his headlights, sounded his horn and sped up to come within 10 car lengths of Elkin, catching up by at least five car lengths before the accident. Elkin did not veer, did not change his direction, did not sound his horn, did not apply his brakes or flash his headlights prior to impact. Elkin did nothing to avoid the collision.

Plaintiff stated in her deposition that while she was driving she came up from a dip in the road and suddenly saw bright lights in front of her. She turned her head to the right because the lights blinded her. She stated that she never crossed the center line. Can we say, as the majority concludes, that as a matter of law, plaintiff was not blinded by oncoming lights and that she did cross the center line? That is for the trier of fact to determine.

If we are to speculate, Kilcullen’s action and Elkin’s inaction are easily explained. It may be that Kilcullen is a highly skilled professional driver. Kilcullen may have trained all his life for the emergency that confronted him at the time of this accident. It may be that he possessed skills beyond that which we would reasonably expect from an ordinary person. That is for the trier of fact to decide.

If we could speculate, it may be that Elkin’s reflexes were slow and he could not respond as fast as an ordinary person. Perhaps the opportunity to respond was shorter than his capacity to respond. These are matters for the trier of fact to decide.

Under pure comparative negligence in Illinois, plaintiffs own negligence cannot, alone, provide grounds for dismissing her suit. (See Alvis, 85 Ill. 2d at 27-28; King v. Petefish (1989), 185 Ill. App. 3d 630, 541 N.E.2d 847.) To defeat the motion for summary judgment, plaintiff need only present evidence which could support a finding that defendant drove negligently and that his negligence was a proximate cause of the accident. Whitman v. Lopatkiewicz (1987), 152 Ill. App. 3d 332, 336, 504 N.E.2d 243, 245.

Plaintiff’s deposition presents evidence of a triable question of fact as to whether Elkin improperly used his bright headlights, temporarily blinding plaintiff, and thereby causing the accident. However, under the Dead Man’s Act, plaintiff’s testimony as to the headlights would not be admissible at trial unless Kilcullen testified for the defense. Plaintiff’s testimony would not be admissible in her case in chief. (See Groark v. Anderson (1991), 222 Ill. App. 3d 880, 584 N.E.2d 468.) Plaintiff could present Kilcullen as her own witness, and his testimony presents evidence which could support a triable question of whether Elkin negligently failed to keep a proper lookout, sound his horn, apply his brakes or take other evasive action to avoid the collision.

Drivers have a duty to maintain a lookout for and avoid collisions with all vehicles, even those traveling on the wrong side of the road. (Chevrie v. Gruesen (1991), 208 Ill. App. 3d 881, 883, 567 N.E.2d 629, 630; Turner v. Roesner (1990), 193 Ill. App. 3d 482, 488, 549 N.E.2d 1287.) Kilcullen testified that he heard no screeching brakes and no horns other than his own prior to the crash, and he saw defendant drive straight into the collision. Officer O’Connor testified that he saw no skid marks at the accident site. This evidence creates a triable issue of whether defendant maintained a proper lookout or made an appropriate effort to avoid the crash. His failure to do either could constitute negligence.

Defendant argues that the trier of fact could not infer from Kilcullen’s and O’Connor’s testimony that Elkin’s conduct proximately caused the crash, citing several cases in which the appellate court has held that a car crossing a center line was the sole proximate cause of an accident. In Rutter v. Gemmer (1987), 153 Ill. App. 3d 586, 505 N.E.2d 1308, a rear-end collision pushed the plaintiff’s car into defendant’s lane, and the front of plaintiff’s car hit the back of defendant’s car. The appellate court affirmed summary judgment for defendant, noting that no more than two seconds elapsed between the rear-end collision and the crash with defendant’s car. The evidence showed that either defendant almost passed the point of collision before plaintiff entered his lane, or defendant swerved sharply to his right to avoid the accident and still plaintiff’s car hit the rear of defendant’s car. (Rutter, 153 Ill. App. 3d at 588.) The court concluded that any deficiency in defendant’s attention could not have proximately caused the accident. Rutter, 153 Ill. App. 3d at 594.

In Wilmere, plaintiff swerved out of his lane into oncoming traffic and collided with three vehicles, driven by the three defendants, in a matter of seconds. The appellate court affirmed summary judgment for defendants since there was no evidence that defendants did not act as prudent persons would under the circumstances. The fact of the accident and plaintiff’s swerve could not, without more, support a finding of defendants’ negligence. Wilmere, 152 Ill. App. 3d at 647.

In Young v. Texas Eastern Transmission Corp. (1985), 137 Ill. App. 3d 35, 484 N.E.2d 325, the appellate court found that defendant made an appropriate effort to avoid the collision with plaintiff’s vehicle in defendant’s lane, so it affirmed summary judgment for defendant. The court also stated that because the accident would not have occurred unless plaintiff crossed the center line, none of defendant’s acts could constitute a proximate cause of the accident. (Young, 137 Ill. App. 3d at 39.) This misstates Illinois law. In Chevrie, Turner and Rutter, the accidents would not have occurred but for plaintiff crossing the center line, but in all of those cases the court stated that that fact alone did not prevent another driver’s conduct from being an additional proximate cause of those accidents. In Turner and Santschi v. Gorter (1978), 63 Ill. App. 3d 394, 379 N.E.2d 1383, the appellate court reversed summary judgment for defendants despite uncontroverted evidence that plaintiffs veered across the center line into defendants’ lane. These cases rest on the general principle that when a plaintiff’s car veers into a defendant’s lane of travel, summary judgment in favor of defendant is proper unless there is evidence that he would have had an opportunity to avoid the accident if he had met all of his obligations as a driver by maintaining a proper speed for conditions, and a proper lookout and so forth.

There is sufficient evidence in this case to present triable issues of fact. If Elkin had enough time to avoid the accident, his failure to take any evasive measures could constitute a contributing proximate cause of the accident. (See Pizano v. Trejo (1971), 2 Ill. App. 3d 944, 274 N.E.2d 861.) If plaintiff can present evidence that Elkin’s headlights blinded her, there may be factual issues to resolve.

For the reasons stated above, I find that the trial court erred in granting summary judgment for defendant, and I would reverse and remand for trial.

       Vollmer Road, at its intersection with Western Avenue, has four lanes; almost immediately west of Western, Vollmer becomes a two-lane thoroughfare again, as it is shortly before it intersects with Western.