text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHARONE McGEE, Defendant-Appellant.
    First District (2nd Division)
    No. 1—88—3650
    Opinion filed April 30, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Violet T. Ricks and Vicki Rogers, Assistant Public Defenders, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Walter P. Hehner, and Kevin C. Hughes, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE SCARIANO

delivered the opinion of the court:

Sharone McGee appeals from his conviction by a jury for the voluntary manslaughter of James Mathis and from his resulting sentence of 12 years in the custody of the Illinois Department of Corrections. He claims that his conviction was insufficiently supported by the evidence. He further alleges that he did not receive a fair trial, in that: (1) the prosecutor made prejudicial remarks during argument; (2) evidence of his prior bad acts was improperly admitted; (3) evidence that Mathis had prior robbery convictions was wrongfully excluded; (4) evidence of a conversation between him and Mathis was inappropriately admitted; and (5) the jury was not instructed on the elements of involuntary manslaughter. Finally, McGee claims that his sentence was excessive. He seeks either: reversal of his conviction, reversal with a remand for a new trial, reduction of his sentence or vacation of that sentence with a remand for a new sentencing hearing.

Theresa Denard testified at trial that she lived with Mathis at the time of the incident and was his fiancee. She met McGee in a “game room” on March 12, 1987, while with her nieces, Johnetta and Tonette Boyce. McGee approached her, introduced himself, told her that he knew where she lived, that he knew her boyfriend and that Mathis was cheating on her. McGee told Theresa that the next time he saw Mathis cheating on her, he would prove it to her. He then asked whether he could walk Theresa home, but she declined the invitation.

On March 15, 1987, Gregory Redmond, a neighbor, knocked at her door and asked whether Mathis was home. He left when Theresa said that her fiance wasn’t there. As he left, however, Theresa saw McGee sitting on the stairs and her sister coming up the stairs. When her sister reached the spot where McGee was sitting, McGee asked her for a cigarette. Theresa’s sister refused, saying that she didn’t know him. McGee then said, “[T]hese punk mother fuckers don’t know who I am, but I am going to show them.” Theresa then closed the door, but heard four to six shots fired, the source of which she attributed to McGee.

On the afternoon of March 19, 1987, Tonette told Mathis that McGee was downstairs from Theresa’s and Mathis’ apartment. Mathis went downstairs, intending, according to Theresa, to ask McGee to stop bothering residents of the building. Tonette and Theresa looked out the window and saw McGee and Mathis standing and talking in front of the building. Mathis told McGee not to shoot in the hallway; McGee replied that he would shoot where he pleased. When Mathis repeated his request, McGee said, “If all these people wasn’t out here I would do something to you,” apparently referring to people who were on the porch of the building but who were not visible to Theresa.

Mathis replied that McGee should do what he was going to do. McGee then asked Mathis to step into a nearby alley. Mathis replied, “Let’s go,” whereupon he followed McGee into the alley. Theresa, after running from the window to put some clothes on so she could go down and get Mathis, returned to the window and saw McGee pull a small handgun out of his pocket as he entered the alley, then heard a shot after McGee entered.

Theresa, running to a fire escape to secure a different vantage point, saw McGee and Mathis in the alley approximately four to six feet apart. McGee held his gun while the two exchanged words which were inaudible to her. Mathis’ hands were empty and were down at his sides. McGee, pointing the gun at Mathis, shot him in the chest; Mathis stepped backwards and fell to the ground. McGee, while running away, said, “[N]o one knows me. No one seen me.” By the time an ambulance arrived, Mathis was dead.

Theresa testified that she was getting dressed when at least one of the shots was fired, and wasn’t sure whether McGee fired three or four shots. Further, after the second or third shot, Mathis punched McGee, although the two men were sufficiently far apart that the punch only “touched” McGee, and so “didn’t even bother him.” Mathis was shot after he punched McGee.

Theresa’s niece, Johnetta, testified that she had known McGee for about a year and a half prior to the shooting. She witnessed the March 12, 1987, incident, but did not hear what was said to Theresa. On March 15, 1987, she witnessed Redmond’s attempt to find Mathis at Theresa’s apartment, saw McGee outside the door, saw him and Theresa’s sister converse, and, about five minutes after Theresa closed the door, heard shots fired. Like Theresa, she did not see who had fired the shots, but had assumed that they had been fired by McGee; McGee, before going downstairs, had commented that he was “going to show them.”

Johnetta was at Theresa’s house on March 19, 1987. She testified similarly to Theresa about Mathis’ decision to go downstairs and confront McGee. When it appeared that the two men were going to fight, Johnetta went onto the fire escape and from that spot saw the two in the alley, heard three shots and saw the fourth shot by McGee hit Mathis. She did not see Mathis punch McGee. She did see two persons, Alerick Rhodes and Albert Denard, Theresa’s brother, standing by a gate at the mouth of the alley during the incident.

Tonette testified that she knew McGee for about six months prior to the shooting of Mathis. She witnessed the March 12, 1987, incident and her testimony as to the subject matter of the conversation between Theresa and McGee was similar to Theresa’s. She witnessed the March 15, 1987, incident and heard the remarks made by McGee before the shots were fired. She testified, however, that “not even two seconds” passed between the time McGee went down the stairs and the time she heard shots fired in the hallway. During the March 19, 1987, incident, Tonette was at Theresa’s and saw and heard McGee and Mathis argue. She heard four gunshots, but saw only the aftermath — Mathis lying on the ground.

Albert Denard testified that he was downstairs on the porch of his sister’s house on March 19, 1987, along with McGee, Redmond and Rhodes. Mathis came downstairs and asked McGee why he was shooting in the hallway. McGee replied that he would shoot where he pleased. Mathis told McGee that, he was “coming to him as a man. Not as a boy.”

When Mathis remarked that he had relatives upstairs who could have been shot by McGee, McGee replied, “If it wasn’t so many people out here I would do something to you.” Mathis replied, “Fuck these people.” McGee than asked Mathis whether he wanted to box and led him down the stairs of the porch and toward an alley. As the two headed toward the alley, McGee pulled a gun, approximately eight inches long, from his pocket. Albert and Rhodes followed the two men, but stopped and watched from the end of the alley.

Albert testified that while pointing the gun at Mathis, McGee began to shoot at him. Mathis ducked the first bullet, which hit a gate. Mathis said to McGee, “Why do you have a gun?” He asked McGee to put the gun down, told him that he didn’t have a gun and asked why McGee needed a gun — all the while having his empty hands in front of him. McGee then fired a second shot at Mathis’ head, which missed and chipped a gate. Mathis’ hands fell to his sides, still empty. McGee then fired another shot at Mathis, which missed and hit a wall. After this shot, Mathis pushed McGee, “chippjmg]” (slightly touching) him on the chin. This, according to Albert, had no effect on McGee, who then shot Mathis in the chest. When Mathis fell, McGee ran away, saying, “Nobody saw me, nobody knows me.”

Albert testified that during the incident, both he and Rhodes stood outside the alley, had nothing in their hands other than some money Albert was holding, and had their hands in front of them. Albert testified under cross-examination that he told the police where the first three shots had hit; he did not show them where they had hit, however, as he was not asked.

Jack Bailey, an assistant State’s Attorney, testified that he interviewed McGee, alone, for 45 minutes at police headquarters after his arrest. McGee, who was 17 years old at the time, told Bailey that he had had a conversation with Mathis and that an argument ensued. Mathis suggested that they take their argument into an alley. Once in the alley, Mathis, who was wearing a jacket, put his hands into the pockets of the jacket. At that point, McGee, believing that Mathis had a gun, took out his gun, which was fully loaded, and fired it three times into the air. After McGee fired the bullets, Mathis struck him in the face. McGee then shot Mathis in the chest.

Bailey admitted on cross-examination that no court reporter was requested to report the interview, and further, that the notes he took during the interview were not made verbatim.

Both parties stipulated that Mathis died of a gunshot wound to the chest, and that Mathis weighed 158 pounds and was 701/2 inches tall.

Robert Kleinschmidt, a detective for the Chicago police department, testified that he was involved in the investigation of Mathis’ shooting. He found a jacket among Mathis’ belongings which he did not examine for gunshot residue. He and his partner interviewed Theresa on the day of the shooting and described her as distraught, excited, scared and speaking very quickly, on March 19, 1987. She told him that three shots were fired and that the two men were approximately two feet apart. She did not tell him what McGee said after Mathis was shot.

On that same day Kleinschmidt also interviewed Albert, who told him that McGee fired six shots at Mathis, the last of which struck the victim. Albert did not tell him that Mathis had told McGee that he did not have a gun, nor that bullets had hit the gate or the wall by the alley where the incident took place. While he examined the scene of the crime, therefore, he did not examine those places where bullets are alleged to have hit.

McGee was found guilty of voluntary manslaughter on November 18, 1988.

McGee claims that the evidence at trial was insufficient to support a conviction for voluntary manslaughter because there was insufficient evidence to support the State’s charge that his belief at the time of the killing that he was justified in his use of force against Mathis was unreasonable. (See section 9—2(b) of the Criminal Code of 1961 (Criminal Code) (Ill. Rev. Stat. 1985, ch. 38, par. 9—2(b)).) McGee argues that the State failed to prove beyond a reasonable doubt that he didn’t reasonably believe that Mathis’s shooting was necessary to defend himself against imminent death or bodily harm from Mathis.

“A person is justified in the use of force [which is intended or likely to cause death or great bodily harm] against another *** only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself ***.” Ill. Rev. Stat. 1985, ch. 38, par. 7—1.

“Self-defense is an affirmative defense [citation], and once it has been raised by the defendant, the State has the burden of disproving it beyond a reasonable doubt.” (People v. Young (1989), 187 Ill. App. 3d 977, 984.) “The test *** is whether the facts and circumstances would induce a reasonable apprehension of serious bodily harm in light of the defendant’s perception of the situation at the time he employed force against the aggressor.” (People v. Estes (1984), 127 Ill. App. 3d 642, 651.) When reviewing a claim of insufficient evidence, however, we must look at the evidence in the light most favorable to the prosecution, and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See People v. Young (1989), 128 Ill. 2d 1, 49.

Reviewing, in accordance with the foregoing principles, the evidence in the instant case, we find that McGee challenged Mathis, who was 3V2 inches taller and three years older, to fight him in the alley. Once in the alley, the two men, McGee with a gun in his hands and Mathis unarmed, stood about four to six feet apart and exchanged words. Two of Mathis’ friends were outside the alley, but had nothing in their hands with which they could pose a threat to McGee.

McGee shot at Mathis, after which Mathis told him that he didn’t have a gun. McGee shot at Mathis twice more; Mathis ducked both shots. After the third shot, Mathis swung at McGee, his fist barely striking McGee’s chin and having no effect on him. Pointing the gun at Mathis’ chest, McGee shot and killed Mathis.

The jury, whose job it is to weigh evidence and determine the credibility of witnesses (see Young, 128 Ill. 2d at 51), could reasonably have believed this version of events and found that McGee’s belief that Mathis posed a serious threat to him was unreasonable. In People v. Polk (1979), 70 Ill. App. 3d 903, cited by McGee, the court, while holding that “it is not necessary that the apparent danger prove to be real or that the victim be armed with a deadly weapon in order for a person to have a reasonable belief that his life is endangered to the point of justifying a killing,” nevertheless upheld a voluntary manslaughter conviction when the defendant claimed that he thought the victim was reaching for a gun, but other witnesses testified that the victim’s hands did not move so as to provide the basis for such a belief. (70 Ill. App. 3d at 905.) Moreover, in People v. Ellis (1982), 107 Ill. App. 3d 603, the court upheld such a conviction against a claim of self-defense when the defendant, who was disabled and who was smaller than the decedent, and who had already fired a warning shot, claimed that the unarmed decedent’s “lunge” toward him justified the shooting. Similarly, we cannot take seriously McGee’s claim that Mathis’ willingness to punch him after he had already fired the gun at Mathis gave McGee reasonable grounds to believe that he was in serious danger. Accordingly, we hold that the evidence of McGee’s guilt was sufficient to sustain his conviction.

With regard to the fairness of his trial, McGee first claims that prosecutorial remarks during argument portrayed McGee as a bad person and unduly prejudiced the jury. Specifically, McGee notes that during his opening statement, the prosecutor claimed that McGee was

“the kind of guy that once he has a twenty-two caliber pistol in his hand, a Saturday night special, becomes a very different sort of person than you see sitting right here. He becomes the kind of person who accosts young ladies on the street[,] *** who insults these young ladies’ boyfriends[,] *** who makes advances towards these strangers on the street[,] *** who makes threats towards these young women and their boyfriends.”

Further, the prosecutor stated that McGee called Mathis out from the

“sanctity of his home[,] *** calls him out into the alley to have a fistfight. * * * [H]e' is the kind of man who faced one-on-one "with an unarmed man, pulls out that twenty-two caliber handgun and shoots an unarmed man in cold blood with that Saturday night special. *** You will hear all this, the kind of man Sharone McGee is, through the evidence that you will hear.”

During the State’s closing argument, the prosecutor argued that the jury had learned that McGee was the “kind of man” who made threats and who carried them out; who would walk up to a woman, insult her and threaten both her and her fiance; who provoked things with other people and who used people to help him follow up on those threats. The State claimed that on March 15, McGee used Redmond to gain access to Theresa’s and Mathis’ building, and that he waited by the door with a “Saturday night special” while Redmond was asking where Mathis was. In discussing Mathis’ shooting, the State claimed that while Mathis entered the alley “alone,” McGee entered with “his Saturday night special,” and that McGee carried out his threats, was “the aggressor[,] *** the provoker *** [and] the one who introduced deadly force.”

Finally, during his rebuttal argument, the prosecutor told the jury that they could not believe that McGee was justified in shooting Mathis and that McGee was guilty of murder rather than manslaughter.

McGee alleges that these statements were not based on the evidence and were merely the opinions of the prosecutor. These “opinions,” according to McGee, cumulatively portrayed him as a bad person, prejudiced the jury against him and, therefore, deprived him of a fair trial. The State argues in response that McGee, by failing to object at trial to most of the arguments and by failing to properly preserve in his post-trial motion the allegation of error as to one statement to which he did object, has waived any right to have this issue reviewed.

McGee failed to object at trial to any of the complained-of prosecutorial statements with the exception of the statement in closing argument that, “He’s the kind of man who would walk up to a woman that he has never met before in his life, walk up to her and insult and threaten not only her *** but her fiance.” The court overruled McGee’s objection to this statement and admonished the jury to, “Rely upon your own recollection of the incident.”

McGee’s failure to object at trial to the remaining statements of which he complains waived his right to their review by this court unless, pursuant to Supreme Court Rule 615(a) (107 Ill. 2d R. 615(a)), the statements constituted “[pjlain errors or defects affecting substantial, rights.” (People v. Enoch (1988), 122 Ill. 2d 176, 189; People v. Young (1989), 128 Ill. 2d at 39.) “The criterion for the application of the plain error rule in criminal cases is whether the evidence is closely balanced or the error is of such magnitude that the commission thereof denies the accused a fair and impartial trial ***.” (Young, 128 Ill. 2d at 47.) Because of the towering evidence of McGee’s guilt, we entertain no doubt that the verdict was not affected by the aforementioned statements and therefore decline to consider them as plain error.

McGee persuasively argues, however, that there is no evidence for the prosecutor’s assertion that McGee was “the kind of man who would walk up to a woman that he has never met before in his life, walk up to her and insult and threaten not only her *** but her fiance.” This statement, which McGee properly preserved for review, should not have been admitted, and the court abused its discretion in overruling McGee’s objection to it. “It is *** proper for the prosecutor to comment unfavorably on the accused *** when those comments are based upon competent and pertinent evidence.” (People v. Wallace (1981), 100 Ill. App. 3d 424, 432.) Given, however, the overwhelming evidence of McGee’s intent to kill Mathis, the court’s later instruction to the jury to “disregard” “any statement or argument made by the attorneys which is not based on the evidence,” and noting that the jury’s verdict of voluntary manslaughter shows that the State had failed to prove that McGee did not believe that his actions were legally justified but did prove that McGee’s belief was unreasonable (Ill. Rev. Stat. 1985, ch. 38, pars. 9—2(b), 7—1), any error in improperly claiming that McGee was a “bad person” was cured and could not reasonably have affected the verdict.

McGee next argues that testimony from Theresa, Tonette and Johnetta regarding the March 12 and March 15, 1987, incidents was irrelevant to the crime for which he was charged and that it prejudiced the jury. This testimony, charges McGee, helped prove only that he had the propensity to commit the charged offense, and as such, was inadmissible.

Notwithstanding the State’s claim that McGee has waived review of some of the aforementioned testimony by not objecting to it at trial (Enoch, 122 Ill. 2d at 186), we find that the evidence of these prior acts could reasonably have affected the verdict, as it made more believable the inference that McGee disliked Mathis, was willing to use a gun, and hence, that he intended to kill Mathis; accordingly, to the extent it may not have been properly preserved, we review this issue under the plain error exception of Supreme Court Rule 615(a) (107 Ill. 2d R. 615(a)).

McGee correctly asserts that “as a general rule ***, evidence which tends to show that an accused has committed *** acts of misconduct which are distinct and entirely unrelated to the one for which he is being tried is both incompetent and prejudicial.” (People v. Curry (1975), 25 Ill. App. 3d 637, 640.) The State points out, however, that “[ejvidence of other crimes is admissible to prove any relevant purpose other than the propensity of the defendant to commit crime.” (People v. Maness (1989), 184 Ill. App. 3d 149, 152-53.) Such relevant purposes include showing the “defendant’s attitude toward [the victim, in order to determine] *** whether he was the aggressor” (People v. Smythe (1971), 132 Ill. App. 2d 685, 689), “absence of an innocent frame of mind or the presence of criminal intent; [and] *** circumstances of the crime charged that would otherwise be unclear” (People v. Crayton (1988), 175 Ill. App. 3d 932, 946).

Not only does the March 12 exchange between McGee and Theresa Denard not appear to qualify as an “act of misconduct,” but, it evidences McGee’s hostility toward Mathis and his willingness to use a gun and was probative of McGee’s intent toward him during the March 19 incident. Further, the testimony about the March 15 incident helped explain why Mathis came downstairs to face McGee on March 19, a confrontation the cause of which would otherwise have been unclear to the jury. Accordingly, we hold that the testimony concerning these two prior incidents was properly admitted. McGee’s further allegation that the trial court erred by not instructing the jury that the testimony was admitted for only a limited purpose is merit-less, as no such instruction was requested, and the trial court had no duty to instruct the jury sua sponte. People v. Cregar (1988), 172 Ill. App. 3d 807, 822-23.

McGee’s third claim of trial error was the court’s exclusion of evidence that Mathis had two prior robbery convictions for conduct in which he engaged in 1983 and in 1984. McGee argues that the convictions showed Mathis’ propensity for violence and thus were probative of his claim that Mathis was the aggressor and that he shot him in self-defense. The State responds that the nature of the convictions, one allegedly for stealing a purse from an elderly person and the other for stealing money from two young newspaper boys, was not probative of a propensity for violence, especially in view of the distance in time from McGee’s shooting of Mathis; moreover, such evidence would have prejudiced the jury against Mathis. The State argues further that because there was no question that Mathis had acted aggressively when he struck McGee, the only remaining issue was whether McGee’s response was reasonable; evidence that Mathis was violent would have no bearing on that question.

People v. Lynch (1984), 104 Ill. 2d 194, upon which McGee primarily relies, holds that when self-defense is put forth to rebut a charge and the defendant is unaware of the victim’s violent tendencies, “evidence of the victim’s propensity for violence tends to support the defendant’s version of the facts where there are conflicting accounts of what happened.” Under such circumstances, “the defendant may show [the victim’s aggressive and violent character] by appropriate evidence.” (104 Ill. 2d at 200.) Such evidence, however, is irrelevant to a theory of self-defense which proposes that deadly force that would be unreasonable in an altercation with a presumably peaceful citizen is reasonable because the victim has violent and aggressive tendencies. 104 Ill. 2d at 200.

The Lynch case held that evidence that a voluntary manslaughter victim had thrice been convicted of battery before his death, when the convictions were recent and when the last came only six weeks before the homicide (104 Ill. 2d at 203), should have been admitted to show the victim’s propensity for violence (104 Ill. 2d at 201). Evidence in Lynch about the events leading to the fatal shooting, however, was disputed. The defendant testified that the victim, after an argument, “lunged forward, reaching behind his back and beneath his coat with his right hand,” leading the defendant to believe that the victim had a weapon. An eyewitness who was a friend of the victim, however, testified that the victim’s “hands were in front of him but admitted that he had told police shortly after the incident that he did not see [the victim’s] hands.” (104 Ill. 2d at 198-99.) Evidence that the victim was a violent person, then, would support the defendant’s version of events.

As found by the trial judge, no such conflict exists in the instant case. There is no dispute that Mathis, standing a few feet from McGee, struck him in the jaw after McGee fired his weapon several times. Whether these shots were intended to hit Mathis, or were only “warning shots” fired because of McGee’s belief that Mathis was armed, is irrelevant to whether McGee’s response to Mathis’ punch was reasonable. Further, even if full credit is given to McGee’s statement to Jack Bailey that Mathis called him into the alley and that he fired the warning shots because Mathis had his hands in the pocket of his jacket and McGee believed he had a gun, such testimony is not inconsistent with testimony from the other witnesses that Mathis dropped his hands to his side after the initial shots were fired, told McGee that he didn’t have a gun, and had no gun in his hand when he struck McGee on the chin. Unlike the situation in Lynch, the lack of conflict about the defendant’s perception of events means that McGee’s self-defense claim was predicated upon whether, given that perception of events, his response was reasonable. Under such circumstances, evidence that Mathis, unknown to McGee, was arguably a violent person was irrelevant to McGee’s claim and was properly excluded by the trial judge.

McGee next avers that the trial court erred in admitting Albert Denard’s testimony that, when Mathis went down onto the front porch of his home to confront McGee, he and McGee argued about why McGee had earlier been shooting in the hallway of the house; further, that McGee threatened to “do something” to Mathis and then asked Mathis whether he wanted to box in the alley. McGee argues that this testimony was inadmissible as hearsay intended to prove that McGee had incited the altercation between the two by firing shots in the hallway during the March 15 incident. The State responds by claiming that McGee has waived his right to review of this issue by neither objecting to the statements at trial nor raising the issue in his post-trial motion. (People v. Enoch, 122 Ill. 2d at 186.) We agree with the State, and because, given the overwhelming evidence about what transpired in the alley, the testimony could not reasonably have affected the verdict, we therefore decline to review the issue.

McGee’s final claim of error is that there was evidence that his conduct was reckless, and hence, the trial court erred in failing to instruct the jury on the elements of involuntary, manslaughter. The State responds that given McGee’s aiming and firing at Mathis from close range, there was no evidence of recklessness and, therefore, no basis for such an instruction.

“A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts *** which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly ***.” (Ill. Rev. Stat. 1985, ch. 38, par. 9—3(a).)

“To justify an involuntary-manslaughter instruction, there must be some evidence of recklessness, though intentionally and deliberately aiming and firing does negate recklessness.” People v. Robinson (1987), 163 Ill. App. 3d 754, 779.

Although McGee argues that the evidence that he fired warning shots at Mathis in order to scare him is probative of recklessness, therefore requiring the requested instruction (see People v. Hines (1975), 31 Ill. App. 3d 295, 302 (instruction required when, as victim ran away, defendant shot him with the arguable intent to scare him)), the fatal shot was not one of the “warning” shots, but rather the shot fired at point-blank range after Mathis struck him. As in People v. Ford (1987), 163 Ill. App. 3d 497, 504-05 (instruction not warranted when defendant intentionally stabbed victim, who was hurting a third party, out of fear that victim would also hurt him), and in People v. Cannon (1988), 176 Ill. App. 3d 49, 55 (instruction not required when defendant intentionally fired shots into a residential building he knew was occupied), the lack of any evidence that the fatal shot was anything but intentionally aimed at Mathis negates any claim of recklessness and justifies the trial court’s denial of the requested instruction.

Even if his conviction is upheld, McGee alleges, the trial court failed, in sentencing him, to properly consider those factors which indicate his rehabilitative potential; accordingly, his sentence of 12 years in the custody of the Illinois Department of Corrections was an abuse of the trial court’s discretion and should be reduced, or this cause remanded for a new sentencing hearing. The State responds that the trial judge properly considered all relevant factors and that McGee’s record amply supports the sentence imposed.

“[A] trial court’s sentencing decision will not be disturbed absent an abuse of discretion. *** [T]he *** mandate [of section 9 of article I of the Illinois Constitution (Ill. Const. 1970, art. I, §9)] requires that the trial court actually consider rehabilitation as an objective of the sentence.” (People v. Steffens (1985), 131 Ill. App. 3d 141, 151.) The trial judge stated when sentencing McGee:

“I understand that he is a young person. And I certainly do not wish to destroy any hope he might have for the future. I do not believe that it is an extended term case. But I do believe that a significant sentence must be given, not only to impress upon this defendant that he must change his ways, but also to protect the community from further acts of aggression.”

We are satisfied that the trial judge did consider the effect of the sentence upon McGee. Moreover, despite McGee’s being only 17 years old when he killed Mathis, having come from a poor economic background and having participated in a GED program after having been expelled from high school for fighting, he had already been convicted of battery and battery/robbery as a juvenile, had shown his willingness to use a firearm to intimidate other people and had admitted involvement in gang activities. Accordingly, we hold that the trial judge’s concern that McGee’s “level of violence against other persons is escalating” was warranted, and that the 12-year sentence was not an abuse of discretion.

For the foregoing reasons, McGee’s conviction and sentence are affirmed.

Affirmed.

HARTMAN and DiVITO, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE LORENZ JUSTICE MURRAY,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GREGORY C. PECOR, Defendant-Appellant.
    First District (5th Division)
    No. 1—88—1235
    Opinion filed May 3, 1991.

      MURRAY, J., specially concurring.
    Randolph N. Stone, Public Defender, of Chicago (Stephen L. Richards, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee G. Goldfarb, Guy L. Miller IV, and Michele I. Lavin, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE LORENZ

delivered the opinion of the court:

After a jury trial, the defendant, Gregory Pecor, was convicted of murder and sentenced to a term of life in prison without parole. On appeal, the defendant has raised numerous issues. In this opinion we limit our consideration to whether the trial judge erred in ruling that the defendant, a white male, did not have standing to object to the prosecution’s use of peremptory challenges excluding black venirepersons from the petit jury.

We reverse and remand with directions.

We find the following facts to be relevant to the disposition of this appeal. During the jury selection, the prosecution used four of its first five peremptory challenges to exclude black venirepersons from the petit jury. The defense counsel interposed an objection arguing that the prosecution’s use of peremptory challenges was racially motivated, thereby entitling the defendant to a Batson hearing. (Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712.) At the time the trial judge was asked to rule on the defense counsel’s request, the guidelines for a Batson hearing required, in part, that the defendant be a member of a “cognizable racial group” and that the excluded juror be a member of the defendant’s race. (Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1723.) Accordingly, the trial judge denied the defendant’s request for a Batson hearing on the ground that the defendant did not have standing. Because the trial judge precluded defense counsel from pursuing the issue, the record does not reflect the racial composition of the venire, the race of any persons subsequently excluded from the venire, or the racial composition of the petit jury.

After his conviction, the defendant filed this appeal. In his brief, the defendant argued that the prosecution’s use of peremptory challenges excluding black venirepersons from the petit jury violated his rights to an impartial jury and to equal protection of the laws under the Illinois and Federal constitutions. Subsequently, the United States Supreme Court decided two cases which have direct bearing on these issues. Prior to oral arguments, the Court decided Holland v. Illinois (1990), 493 U.S. 474, 107 L. Ed. 2d 905, 110 S. Ct. 803. There, the Court held that a white criminal defendant has standing to raise an objection, under the sixth amendment (U.S. Const. amend. VI), to a prosecution’s use of peremptory challenges excluding black venirepersons from a petit jury; but such an exclusion was not in violation of that amendment. Therefore, at the oral argument, the parties argued only the equal protection issue. After oral arguments, the Court decided Powers v. Ohio (1991), 499 U.S._, 113 L. Ed. 2d 411, 111 S. Ct. 1364. In the context of the Powers decision, we are now called upon to decide whether the defendant, a white male, has standing to raise an equal protection objection to the prosecution’s use of peremptory challenges excluding black venirepersons from the petit jury. For the reasons set forth below, we hold that he does.

Opinion

In Powers, a white male defendant was convicted of murder, aggravated murder, and attempted aggravated murder, and was sentenced to 53 years in prison. In the jury selection prior to trial, the prosecution used peremptory challenges excluding a total of seven black venirepersons from the petit jury. The defense counsel objected and asked the trial judge to compel the prosecution to explain their reasons for the exclusions. The trial judge denied the request. The defendant appealed his conviction, contending that his own race was irrelevant to the “right to object” to the prosecution’s use of peremptory challenges. (Powers, 499 U.S. at_, 113 L. Ed. 2d at 420, 111 S. Ct. at 1366.) The Ohio Appellate Court affirmed the conviction, and the Ohio Supreme Court dismissed Power’s appeal. The United States Supreme Court reversed and held that “a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded juror share the same race.” (Powers, 499 U.S. at_, 113 L. Ed. 2d at 419, 111 S. Ct. at 1366.) The case was remanded to the Ohio trial court for a Batson hearing.

Because Powers would be dispositive of the instant appeal, we must determine whether Powers requires retroactive application. The United States Supreme Court has held that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final.” (Griffith v. Kentucky (1987), 479 U.S. 314, 328, 93 L. Ed. 2d 649, 661, 107 S. Ct. 708, 716.) Therefore, the rule announced in Powers is to be applied to this appeal.

Accordingly, we hold that Gregory Pecor, a white male, had standing to object to the prosecution’s use of peremptory challenges excluding black venirepersons from the petit jury. We also find that, because the prosecution used four of its first five peremptory challenges to exclude black venirepersons, the defendant has raised a “legitimate and well-founded objection! ]” as propounded in Powers and Illinois case law. (Powers, 499 U.S. at_, 113 L. Ed. 2d at 429, 111 S. Ct. at 1374; see also People v. Drew (1990), 201 Ill. App. 3d 271, 559 N.E.2d 40 (prosecution’s use of four out of six peremptory challenges to exclude minorities from the petit jury provided basis for defendant’s legitimate objection).) Therefore, while expressing no opinion about the ultimate merits of the defendant’s objection, we remand this case to the trial court for a Batson hearing.

We are aware that the record does not reflect the racial composition of the venire, the race of any persons subsequently excluded from the venire, or the racial composition of the petit jury and that these facts may be relevant to the establishment of a prima facie case by the defendant. We also observe, however, that neither the trial judge, the prosecution, nor the defendant could have predicted the new procedure mandated by the United States Supreme Court in Powers. Upon remand, therefore, we direct the trial judge to allow the defendant an opportunity to present evidence to establish a prima facie case under Batson rather than require the defendant to rely entirely upon the current record. People v. Allen (1988), 168 Ill. App. 3d 397, 521 N.E.2d 1172.

Finally, this court retains jurisdiction over this case to review the trial court’s ruling after the Batson hearing, and, if necessary, to address the other issues raised by the defendant in this appeal. Allen, 168 Ill. App. 3d 397, 521 N.E.2d 1172.

Reversed and remanded with directions.

GORDON, J., concurs.

JUSTICE MURRAY,

specially concurring in the majority’s well-reasoned opinion:

This case and other cases following Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, present a forceful argument for eliminating peremptory challenges in criminal and civil cases based on judicial economy. A return to the common law would save the taxpayers millions in relitigation expenses.

At the common law the sole criteria of a jury was “impartiality.” The cardinal rule was that juries should stand indifferent before the law. There were two types of challenges at the common law. One was called a “principal challenge,” the other a “challenge to the favor.”

A principal challenge was grounded on a presumption that a prospective juror was biased because of a kinship by blood, affinity or other relationship. A godfather or blood relative to the ninth degree or business association to one of the parties would be subject to such a challenge.

A challenge “to the favor” was similar to our present challenge for cause. In the case of that type of challenge the conclusion to disqualify or not to disqualify was made by the trial judge after hearing evidence in the case as to whether the prospective juror had formed an irrevocable conclusion on the ultimate issue in the case. The evidence was taken on this subject during the “voir dire” prior to jury being finally selected. Lord Bacon defines such a challenge as “a juror who has delivered an opinion touching on the matter.” (5 Bacon Abridgement 353.) A protection was built into the common law system by an appeal on the issue of whether the trial court arbitrarily overruled a challenge to the favor. Coughlin v. People (1893), 144 Ill. 140, 33 N.E. 1.


author: JUSTICE GORDON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT L. BASKIN, Defendant-Appellant.
    First District (5th Division)
    No. 1—89—0610
    Opinion filed May 3, 1991.

      T. Lee Boyd, Jr. & Associates, of Chicago, for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Kathleen Warnick, Special Assistant State’s Attorney, and Renee Goldfarb, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE GORDON

delivered the opinion of the court:

Defendant, Robert L. Baskin, was charged by indictment for attempted murder and attempted armed robbery (Ill. Rev. Stat. 1973, ch. 38, par. 8—4) in September 1974. On May 24, 1976, after a jury trial in the circuit court of Cook County, he was found guilty on both counts. On June 18, 1976, he was sentenced to concurrent respective terms of 6 to 18, and 5 to 15 years of imprisonment, but remained free on bond pending the outcome of his appeal. A notice of appeal was filed by his retained counsel on the same date. The “half-sheet” in that case shows that the matter was continued on the circuit court’s appeal check call for about two years, until May 12, 1978, when the State’s motion to dismiss defendant’s appeal was granted. A warrant was issued for defendant’s arrest shortly thereafter, but he was not taken into custody until January 1, 1989, when he was arrested for a narcotics violation and his status with regard to his prior convictions came to light.

After his arrest defendant retained counsel and filed a petition to reinstate his appeal. In that petition defendant alleged that he did not know that his attorney had failed to pursue his appeal or that it had been dismissed upon motion of the State. Defendant also claimed that he had made numerous telephone calls to his attorney’s office while his appeal was pending and was told that the appeal was proceeding as expected, that he had detrimentally relied on his attorney’s representations and that his appeal was meritorious.

At the hearing which was held on his petition, defendant testified that while he was free on bond, he appeared in court on a number of appeal checkdates, but stopped after his counsel advised him that it was unnecessary for him to do so and assured him that he would handle everything for him. Defendant also stated that he kept in touch with his attorney until his attorney died in 1985, and during that period had been continually advised that his attorney had not heard anything on the appeal. Defendant further stated that in the years fob-lowing his attorney’s death he inquired about his appeal by calling the associates in his office, but did not receive any information. Furthermore, defendant said he did not know the appeal had been dismissed until his arrest on January 1,1989.

Following a hearing on the petition, the trial court refused to reinstate the appeal on the grounds that its jurisdiction was divested by the filing of the notice of appeal. On appeal, defendant contends that the trial court erred in not granting the petition to reinstate the appeal.

Although we do not agree with the trial court’s jurisdictional reason for denying defendant’s petition to reinstate, the denial itself was correct on other jurisdictional grounds. Accordingly, we affirm.

Opinion

Both parties to this appeal address themselves solely to the merits of defendant’s entitlement to reinstatement of his appeal. Neither party has raised any contentions regarding the jurisdictional basis of the trial court’s ruling. However, as shall be fully discussed later, we are not bound by the parties’ failure to address the jurisdictional issue, and a discussion of it is material to the procedural basis of this decision. First, though, since it is helpful for reasons which shall become clear later, we shall consider the substantive merits as raised by the parties.

In support of his argument for reinstatement, defendant cites several Illinois Supreme Court decisions which mandate the reinstatement of a criminal appeal where the dismissal is attributable to the negligence or malfeasence of defense counsel. People v. Aliwoli (1975), 60 Ill. 2d 579, 328 N.E.2d 555; People v. Jacobs (1975), 61 Ill. 2d 590, 338 N.E.2d 161; People v. Brown, (1968), 39 Ill. 2d 307, 235 N.E.2d 562.

In People v. Brown (1968), 39 Ill. 2d 307, 235 N.E.2d 562, the defendant was convicted of pandering. When his attorney failed to properly pursue the subsequent appeal, it was dismissed for want of prosecution. The defendant’s bond was forfeited and he was then arrested and incarcerated. Shortly thereafter, the defendant obtained new counsel and moved for reinstatement of his appeal. The appellate court denied the motion and the defendant appealed. The supreme court reinstated the defendant’s appeal, holding that the general rule that clients are bound by the acts of their attorneys does not apply in cases where the attorney has negligently or intentionally allowed an appeal to be dismissed and the defendant has not knowingly waived his right to an appeal. (Brown, 39 Ill. 2d at 312.) It stated (39 Ill. 2d at 311):

“We find the consequence of the dismissal here most significant, for while the right of appeal in a criminal case is not per se of constitutional dimension [citation], any denial of it is subject to the due-process and equal-protection guarantees of the Federal and State constitutions.”

Accord Aliwoli, 60 Ill. 2d 579, 328 N.E.2d 555; Jacobs, 61 Ill. 2d 590, 338 N.E.2d 161.

The State contends that defendant’s right of appeal is not unfettered and requires diligence and conformity with supreme court rules. (People v. Carter (1980), 91 Ill. App. 3d 635, 415 N.E.2d 17.) In addition, the State points out that a person who is free on an appeal bond after conviction has a duty to duly prosecute his appeal (Ill. Rev. Stat. 1975, ch. 38, par. 110 — 10(b)(1)), and that the record in this case shows that defendant has failed to do so. As evidence the State points out that the case has languished for a period of 13 years, that defendant acknowledged his awareness of his attorney’s death four years before his arrest, and that other than making some telephone calls to the attorney’s office, it appears that defendant took no affirmative measures to bring his situation to light and pursue his appeal.

While the State’s argument is not without substance, we believe that under the supreme court’s most recent pronouncement on the subject, defendant’s appeal should nevertheless be reinstated. In People v. Moore (1990), 133 Ill. 2d 331, 549 N.E.2d 1257, a notice of appeal of defendant’s murder conviction was filed on June 2, 1980, but his appeal was dismissed by the appellate court for want of prosecution when defendant’s retained counsel failed to file a docketing statement. In 1983, proceedings were initiated against defendant’s attorney before the Attorney Registration and Disciplinary Commission, and in 1988 defendant’s attorney was suspended from the practice of law for a period of time. After defendant filed a motion to reinstate his appeal, which was denied by the appellate court, the supreme court allowed his petition for leave to appeal.

In Moore, as in this case, the State questioned the adequacy of defendant’s efforts to pursue his appeal and contended that his remedy could be found in the Post-Conviction Hearing Act (Ill. Rev. Stat. 1987, ch. 38, par. 122—1 et seq.). The supreme court, however, disagreed. The court acknowledged the remedial procedure set forth in People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218, i.e., a post-conviction challenge in the circuit court, as the appropriate remedy where there are factual questions as to attorney’s representation to be determined, but decided in Moore:

“Where a defendant, as here, has once properly invoked appellate jurisdiction, only to have his appeal dismissed, through no fault of his own, for appellate counsel’s failure to comply with appellate rules, this court has opted for reinstatement of the appeal by motion in the appellate court in instances where defendant has taken reasonable steps to preserve his right to appeal, and where there are no complex factual questions to be determined by the trial court. [Citations.] We see no reason to waste the time and resources of an already overburdened circuit court by requiring yet another circuit judge to rule on matters pertaining to defendant’s trial, only to have the matter ultimately return to the appellate court on appeal from the circuit court’s post-conviction ruling. All issues may well be resolved on direct appeal; however, even if defendant does eventually pursue post-conviction relief, many issues will have been raised and resolved on direct appeal, thus narrowing the scope of inquiry in post-conviction proceedings and thereby facilitating disposition of a post-conviction action in the event one is commenced.” (Moore, 133 Ill. 2d at 339-40, 549 N.E.2d at 1261.)

The supreme court then reinstated defendant’s appeal and remanded his case to the appellate court for further proceedings. Moore, 133 Ill. 2d at 341, 549 N.E.2d at 1262.

In the case at bar, the record shows that defendant initially entrusted his appeal to his counsel, but that after a timely filing of notice, defendant’s appeal was dismissed two years later, apparently because of counsel’s failure to preserve it by complying with the rules of appellate procedure. Although the record indicates that defendant might have acted with more purpose and intensity to pursue his appeal and preserve his rights, we observe that with the passing of time not only has his counsel died but the post-conviction procedure has also been foreclosed to him by the 10-year limitation period which controls its availability. Ill. Rev. Stat. 1989, ch. 38, par. 122—1; People v. Bates (1988), 124 Ill. 2d 81, 529 N.E.2d 227.

Were the merits of defendant’s entitlement to a reinstatement of his appeal our only concern, our inquiry would end here. But even though neither party has raised the question of the jurisdiction of the trial court or of this court to entertain such a petition, nevertheless it is our duty to consider these jurisdictional issues. (People v. Biederman (1981), 100 Ill. App. 3d 558, 426 N.E.2d 1225.) Consequently, while there is substantive merit to defendant’s petition for reinstatement, we cannot reverse the trial court’s determination without considering the question raised as to the trial court’s jurisdiction to vacate its dismissal order.

As previously noted, the trial court denied defendant’s petition based on its finding that it lacked jurisdiction. However, the trial court’s contention that its jurisdiction was divested by the filing of the notice of appeal is inconsistent with Supreme Court Rule 309 (58 Ill. 2d R. 309) pursuant to which the trial court’s original dismissal in 1978 was based. Rule 309 was made applicable to criminal appeals by Supreme Court Rule 612(a). (58 Ill. 2d R. 612(a).) In 1978, Rule 309 permitted a trial court to retain jurisdiction before the case was docketed by the reviewing court, and to dismiss the case “if 35 days have passed after the expiration of the original or extended time to file the record in the reviewing court and no motion for extension of time has been filed in that court.” (58 Ill. 2d R. 309.) Prior to 1979 docketing by the reviewing court occurred only after the record was filed. (58 Ill. 2d R. 327 (made applicable to criminal appeals by 58 Ill. 2d R. 612(f)).) In 1979 Rule 606(f) was added to provide for docketing in the appellate court upon filing of the notice of appeal. (73 Ill. 2d R. 606(f).) Rule 309 was also amended in 1979, removing the authority of the trial court to dismiss an appeal 35 days after the time to file the record in the reviewing court had elapsed. (73 Ill. 2d R. 309.) In 1981, Rule 309 was again amended to permit the trial court again to retain jurisdiction to dismiss an appeal until the record was filed with the reviewing court, notwithstanding the acceleration of the docketing date under the 1979 amendment to Rule 606(f). (See Committee Comments to Supreme Court Rule 309, which make reference to Rule 303, the counterpart of Rule 606 for civil appeals (87 Ill. 2d R. 309, Committee Comments).) Thus except for the short interlude between 1979 and 1981, the mere filing of the notice of appeal did not divest the trial court of its jurisdiction to dismiss an appeal provided, as the undisputed facts bear out in this case, the record was not yet filed with the appellate court.

However, even though the jurisdiction of the trial court was not divested by the filing of a notice of appeal, the order dismissing the appeal under Rule 309 was a final order (Kjellberg v. Muno (1950), 340 Ill. App. 133, 137, 91 N.E.2d 155, 157), and after the lapse of 30 days, the order was subject to vacation only under the provisions of former section 72 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 72 (hereinafter referred to under its current codification as section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401))). This provision, although civil in nature, has been held to extend to criminal proceedings. People v. Touhy (1947), 397 Ill. 19, 25, 72 N.E.2d 827, 831.

In this case, defendant did not designate his motion to reinstate his appeal as a section 2 — 1401 motion, nor did the trial court make any findings under section 2 — 1401 due to its threshold determination that it lacked jurisdiction. Defendant did, however, file a petition and affidavit as required under the provisions of section 2 — 1401 and is therefore entitled to have it considered under that section.

It is hornbook law that section 2 — 1401 is not intended to relieve a party of the consequences of his own negligence. Under ordinary circumstances, this would extend to the negligence of one’s own attorney as well. (Department of Public Works & Buildings v. O’Hare International Bank (1976), 44 Ill. App. 3d 623, 358 N.E.2d 1308.) An exception has been made, however, to provide for reinstatement of a criminal appeal dismissed by the trial court as a result of the neglect of the defendant’s attorney. (See People v. McManus (1978), 66 Ill. App. 3d 986, 384 N.E.2d 568.) There the trial court dismissed McManus’ appeal in December 1977, for failure to file the record in the appellate court for six months after the notice of appeal had been filed. Less than four months later, in March 1978, when McManus learned of the dismissal of his appeal, he filed his section 72 petition. The trial court dismissed the petition.

In vacating both the order of the trial court dismissing the appeal and the order dismissing the petition, the appellate court stated (66 Ill. App. 3d at 989):

“Although section 72 of the Civil Practice Act may not specifically be intended to relieve a litigant of incompetence of counsel and the Post-Conviction Hearing Act (Ill. Rev. Stat. 1977, ch. 38, par. 122—1 et seq.) is intended to provide, such relief, we have supplementary considerations in this case based on three decisions rendered by the Illinois Supreme Court in which appeals were dismissed by reason of a failure of counsel to file briefs on time. In all three cases, the appeal had been dismissed by the appellate court and the supreme court ordered the appeal reinstated.”

Although McManus expanded the scope of former section 72 by including failure of counsel to pursue an appeal as grounds for relief thereunder, it did not go so far as to hold that reinstatement would be automatic under such circumstances notwithstanding the time lapse between the entry of the order and the filing of the petition. In Mc-Manus the petition was filed less than four months after dismissal. Thus the decision in McManus cannot be construed to extend the availability of section 2 — 1401 relief in cases involving neglect of counsel to prosecute a criminal appeal beyond the two-year period of section 2— 1401(c).

Section 2 — 1401(c) provides:

“The petition must be filed not later than 2 years after the entry of the order or judgment. Time during which the person seeking relief is under legal disability or duress or the ground for relief is fraudulently concealed shall be excluded in computing the period of 2 years.” Ill. Rev. Stat. 1989, ch. 110, par. 2—1401(c).

Here, defendant’s petition was filed almost 11 years after the trial court’s dismissal of the appeal, well beyond the two-year limitation period contemplated under section 2 — 1401(c). The record shows no evidence that defendant was under legal disability or duress. Fraudulent concealment under section 2 — 1401(c) which will toll the two-year limitation period contemplates affirmative actions by one’s opponent or by the court, not one’s own attorney. (See, e.g., Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 433 N.E.2d 253 (failure of opponent to fully comply with discovery constitutes fraudulent concealment); Dils v. City of Chicago (1978), 62 Ill. App. 3d 474, 378 N.E.2d 1130.) Therefore, even had the trial court correctly ruled that it was not divested of jurisdiction over the matter by the filing of the notice of appeal and treated the petition as one under section 2 — 1401, it would have had to deny defendant’s petition for failure to meet the requirements of section 2 — 1401(c). There is therefore little purpose to be served by remanding this matter to be redetermined by the trial court pursuant to section 2 — 1401 since, as shown above, the passage of 11 years since the entry of the order of dismissal would preclude recovery under the statute. Thus, the trial court was correct in denying defendant’s petition for reinstatement albeit for a reason other than that which it articulated, and we have no authority to order the trial court to reinstate the appeal where its denial was correct under section 2—1401. Jam Productions, Ltd. v. Dominick’s Finer Foods, Inc. (1983), 120 Ill. App. 3d 8, 458 N.E.2d 100.

As we have no authority to direct the trial court to reinstate defendant’s appeal, so too we are without power sua sponte to grant defendant leave to file a late appeal directly with this court unless so directed by our supreme court in the exercise of its supervisory powers. (Ill. Const. 1970, art. VI, §16. See People v. Mims (1980), 82 Ill. 2d 63, 411 N.E.2d 215.) Our jurisdiction to review a judgment of the trial court in a criminal matter is governed by Supreme Court Rule 606. (107 Ill. 2d R. 606.) Compliance with Rule 606 is jurisdictional, and failure to comply with its provision results in this court having no jurisdiction over the matter. (People v. Anders (1974), 20 Ill. App. 3d 984, 313 N.E.2d 520.) We have no discretion to extend that jurisdiction (People v. Williams (1980), 82 Ill. App. 3d 681, 402 N.E.2d 440), nor can the parties to an appeal waive the timely filing of a notice of appeal. (In re McCall (1982), 108 Ill. App. 3d 164, 438 N.E.2d 1269.) Rule 606(b) requires that a notice of appeal be filed within 30 days from the entry of the judgment appealed from. Under Rule 606(c) we may allow an additional 30 days to file the notice of appeal, upon a showing of reasonable excuse for failure to file a notice on time. In addition, leave to file a late appeal may be granted within six months upon a showing of merit to the appeal and lack of culpable negligence. Beyond that, we have no jurisdiction to review an order of the trial court.

We recognize that defendant did file a timely notice of appeal in 1976. That appeal was, however, dismissed by the trial court in 1978 when the trial court retained jurisdiction to dismiss an appeal under the rules in effect at that time. We are, in substance if not in form, being asked to review that dismissal as if on appeal. It is clear that the time to file a notice of appeal of the 1978 dismissal has long since passed. So too has the time in which we may grant leave to file a late appeal. As a result of defendant’s failure to timely file a notice of appeal of the trial court’s dismissal or to file a motion for leave to file a late appeal within six months from the 1978 dismissal, we have no authority to hear an appeal of the trial court’s order of dismissal. See People v. Thomas (1990), 205 Ill. App. 3d 840, 563 N.E.2d 852.

Accordingly, notwithstanding the fact that the supreme court’s decision in Moore indicates that this defendant’s appeal should be reinstated, such reinstatement must be effected by our supreme court pursuant to its supervisory powers. We note that in People v. Mims (1980), 82 Ill. 2d 63, 411 N.E.2d 215, and People v. Jacobs (1975), 61 Ill. 2d 590, 338 N.E.2d 161, the supreme court explicitly ordered defendants’ appeals reinstated in the appellate courts pursuant to its exclusive supervisory powers. While Moore would indicate a strong policy statement by the supreme court that appeals such as this should be reinstated, we observe that even there, consistent with its exercise of its supervisory powers, it ordered the appeal reinstated rather than reversing the appellate court’s denial of defendant’s petition. Accordingly, we are left with no alternative but to affirm the trial court.

Affirmed.

MURRAY and COCCI A, JJ., concur.

      Justice Michel A. Coccia participated in oral argument prior to his assignment to another division.


author: JUSTICE McNULTY

text:
    RAYMOND R. MARTIN, SR., et al., Coadm’rs of the Estate of Laura Martin, Deceased, et al., Plaintiffs-Appellees, v. McDONALD’S CORPORATION et al., Defendants-Appellants (Maureen Kincaid et al., Plaintiffs-Appellees).
    First District (5th Division)
    No. 1—89—1314
    Opinion filed May 3, 1991.

      Gorham, Metge, Bowman & Hourigan, of Chicago (Robert J. Hourigan, of counsel), for appellant.

      John J. Henely, Ltd., of Chicago (John J. Henely, David A. Novoselsky, Susan E. Loggans, and Mary Jo Kelly, of counsel), for appellees.
   JUSTICE McNULTY

delivered the opinion of the court:

This case involves an appeal by McDonald’s Corporation from judgments in favor of plaintiffs Raymond R. Martin, Sr., Marianne Martin, Maureen Kincaid and Therese Dudek. The trial court awarded damages in the amount of $1,003,445.37 to Raymond R. Martin, Sr., and Marianne Martin for the wrongful death of their daughter, Laura Martin. It also awarded damages of $125,000 each to Maureen Kincaid and Therese Dudek for the negligent infliction of emotional distress. McDonald’s appeals not only the judgment of the trial court awarding damages to the plaintiffs, but also the denial of its post-trial motion for judgment notwithstanding the verdict.

This case arose from a murder and robbery which took place after closing hours of the McDonald’s restaurant in Oak Forest, Illinois, late in the evening of November 29, 1979. On that evening, a six-woman teenaged crew was working to clean up and close the restaurant; Laura Martin, Therese Dudek and Maureen Kincaid were members of that crew. A person later identified as Peter Logan appeared in the back of the restaurant and ordered the crew into the refrigerator and the assistant manager, Therese Dudek, to open the safe and get him money. In the course of moving the crew into the refrigerator, Laura Martin was shot and killed, and Maureen Kincaid and Therese Dudek were assaulted by Logan. Laura Martin’s parents claimed damages from McDonald’s Corporation for the wrongful death of their daughter, and Therese Dudek and Maureen Kincaid claimed damages for the negligent infliction of emotional distress. The trial court awarded damages to all three victims, and McDonald’s Corporation appealed.

NEGLIGENCE CLAIMS

In order for plaintiffs to recover on a theory of negligence, they must establish that there was a duty owed to them by defendant, that defendant breached its duty, that they were injured, and that defendant’s breach of duty or negligence was the proximate cause of their injuries. The question of duty, the legal obligation imposed upon one for the benefit of another, is a question of law to be determined by the court. Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 555, 328 N.E.2d 538, 539.

Defendant, McDonald’s Corporation, contends that it had no duty to protect Laura Martin, Maureen Kincaid or Therese Dudek since it was merely the licensor of the business that was operated by McDonald’s Restaurants of Illinois, and plaintiffs were employees of the licensee. McDonald’s asserts that it had no duty to plaintiffs, as it had no “special relationship” (such as common carrier/passenger, innkeeper/guest, possessor of land/member of the public, or one who has custody of another who is deprived of the opportunity to protect himself) with them as required by section 314 of the Restatement (Second) of Torts (1965).

Plaintiffs, however, do not ask this court to determine that defendant McDonald’s owed them a duty of care because it had a special relationship to them. Rather, they insist that McDonald’s owed them a duty of care and protection because it had voluntarily assumed such a duty. Case law supports the proposition that liability can arise from the negligent performance of a voluntary undertaking. (See Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 199 N.E.2d 769.) In Nelson, an insurance company voluntarily undertook the inspection of a construction site. When an accident occurred, the insurance company claimed that it had no duty regarding the safety of the equipment involved. Although this case involved the construction of Florida law, the Illinois Supreme Court noted that Florida, like Illinois, has recognized the doctrine that liability can arise from the negligent performance of a voluntary undertaking, and found the insurance company liable for the negligent performance of its voluntary inspection of the construction site. Nelson, 31 Ill. 2d at 74.

The negligent performance of a voluntary undertaking has also been used as a basis for imposing liability in two Illinois landlord-tenant cases. In Cross v. Wells Fargo Alarm Services (1980), 82 Ill. 2d 313, 412 N.E.2d 472, the plaintiff was severely beaten and injured by several unknown men as he was waiting for an elevator in the lobby of property owned by the Chicago Housing Authority. The trial court dismissed plaintiff’s complaint after noting that there is “no duty in Illinois or at common law upon a landlord to protect tenants or social guests from the criminal acts of third parties.” (Cross, 82 Ill. 2d at 317.) The supreme court reversed the dismissal, holding that the general rule which states that a landowner is not liable for the consequences of a criminal assault by third persons does not apply when the landowner has voluntarily assumed a duty with regard to security measures. In this case, the landlord had provided part-time guard services, and as a result of the manner in which these services were provided, the incidence of crime in the projects and danger to the tenants was actually increased. (Cross, 82 Ill. 2d at 317.) In Phillips v. Chicago Housing Authority (1982), 89 Ill. 2d 122, 127-28, 431 N.E.2d 1038, the supreme court held that the scope of the voluntarily assumed duty is not limited to the situations where the undertaking increases the danger or creates a new risk of harm. The failure to properly complete or to carry out an assumed duty imposes liability in the same manner as for dangers affirmatively created during the course of the assumed undertaking. Phillips, 89 Ill. 2d at 127-29.

Plaintiffs argue that McDonald’s, like the insurance company in Nelson, and the Chicago Housing Authority in Phillips and Cross, had assumed an increased responsibility for their care and protection, and as such, was liable for the negligent performance of this voluntary undertaking. Even though McDonald’s had no duty imposed by law to protect plaintiffs against the criminal acts of third parties, it had voluntarily recognized the threat of armed robbery and the importance of security in the restaurants, especially in the time period immediately after closing. It had created a branch of its corporation assigned to deal with security problems and had prepared a bible for store security operations. McDonald’s, through its regional security manager, Jim Carlson, undertook not only the obligation to check for security problems, but also to communicate to the store management what the security policies were and to “follow-up” to be certain that the problems had been corrected and the “recommended” security procedures “followed.”

Defendant urges the court to consider the separate and distinct nature of McDonald’s Corporation and McDonald’s Restaurants of Illinois, Inc. It asserts that McDonald’s Corporation was only the licensor of a business that was operated by McDonald’s Restaurants, Inc., and that McDonald’s Restaurants, Inc., was the employer of the plaintiffs. Even though all this is in fact true, it only goes to the legal relationship of McDonald’s Corporation to the plaintiffs. No matter what legal relationships existed, it was McDonald’s Corporation which undertook to provide security and protection to plaintiffs.

It was McDonald’s Corporation’s regional security manager, Jim Carlson, who acted directly as security supervisor for the newly acquired Oak Forest McDonald’s, even though this restaurant was directly owned by McDonald’s Restaurants of Illinois, Inc. Since McDonald’s Restaurants of Illinois had neither an operations manager nor a security supervisor, these positions were handled by Steve Zdunek and James Carlson, two executives from defendant McDonald’s Corporation.

On October 31, 1979, both Carlson and Zdunek visited the Oak Forest store. Carlson met with the store manager, Karl Ferret, and although he did not provide Ferret with a copy of the McDonald’s bible of security procedures which Carlson had written, he did inform Ferret about McDonald’s proper closing procedures, specifically stating that no one should go out or throw garbage out the back door after dark. Trash or grease were to be taken out the side glass door at least one hour prior to closing by one employee while another watched from inside. This was required as part of McDonald’s security policy to thwart entry by an unauthorized person into the store. During this visit to the store, Carlson also did a security check, and made certain security changes which included changing locks and ordering a new security window and Detex alarm system for the back door.

The trial court correctly determined that McDonald’s Corporation had a duty to protect plaintiffs Laura Martin, Maureen Kincaid and Therese Dudeck from harm. Although it did not specifically state that such duty was “assumed,” there is ample support in case law and the facts of this case to support a determination that McDonald’s Corporation voluntarily assumed a duty to provide security to plaintiffs and protect them from harm.

Once McDonald’s Corporation assumed the duty to provide security and protection to plaintiffs, it had the obligation to perform this duty with due care and competence, and any failure to do so would lead to a finding of breach of duty. (See Nelson, 31 Ill. 2d at 85-86.) While McDonald’s argues that the duty it assumed was, like the insurer in Nelson, only to inspect and warn, the testimony of its regional security manager, Jim Carlson, and its operations manager, Steve Zdunek, reveals that the duty assumed included follow-up in addition to inspection and warning in order to be sure that security policies were being carried out. Both Zdunek and Carlson also testified that neither one of them followed up. Although they acknowledged that back door security was crucial, Carlson had not visited the store since the take-over, and while Zdunek had visited the store several times for the purposes of ensuring that operations conformed to McDonald’s manuals as far as cleanliness, appearance of the crew, preparation of food, etc., he admitted that he was never there at night to see that proper closing procedures were being followed. Even if there was not sufficient time between the take-over and the armed robbery to order, receive and install the security window and the Detex alarm system, there certainly was time to make an on-site evening inspection to be sure that proper closing procedures were being followed, and that the primarily teenaged work force was properly instructed as to closing procedures. Yet neither Zdunek nor Carlson ever checked to be sure that the back door was not being used after dark or that signs were posted on the door warning employees not to use this door after dark. Neither checked to be sure that the primarily teenaged work crews received proper instructions about the use of the back door. In fact, several of the employees testified that they had never received a security manual, had never seen warning signs on the back door, and had never been instructed not to use the back door after dark. Furthermore, neither Zdunek nor Carlson had ever noticed the dumpster that was pulled up to the back door after dark so that employees could dump garbage simply by opening the back door.

Thus, McDonald’s clearly established a security policy which unquestionably included a follow-up. Nevertheless, its key security people, Carlson and Zdunek, admittedly failed to follow up. McDonald’s argument that the employees were already familiar with security procedures and did not need to be instructed is belied by the facts of the actual operation of the restaurant. Trial testimony proved that the work crew used the back door exclusively, both before and after dark, and emptied garbage and grease through this door all day and all night. A dumpster was brought to the rear door of the restaurant at night to facilitate garbage removal. Failure to empty grease at night would result in a reprimand to employees. In view of this established operating procedure, it is meaningless for McDonald’s to argue that employees were familiar with back door security and that a follow-up was unnecessary. Therefore, the duty which McDonald’s defined for itself included a follow-up which was doubly necessary because of the operating conditions of the restaurant. Accordingly, there was ample evidence for the jury to determine that McDonald’s had breached its assumed duty to plaintiffs.

McDonald’s argues that even if it had and breached a duty to plaintiffs, there is no evidence to support the contention that anything McDonald’s Corporation did or failed to do was the proximate cause of the entry of Logan onto the premises and the subsequent injury to the plaintiffs. McDonald’s cites the case of N.W. v. Amalgamated Trust & Savings Bank (1990), 196 Ill. App. 3d 1066, 554 N.E.2d 629, in which summary judgment was granted to the defendants because no facts were alleged which could establish that their acts were the proximate cause of plaintiffs’ injuries. The instant action is dissimilar to the cited authority in that there is a great deal of circumstantial evidence from which the jury could conclude that defendant’s actions were a proximate cause of plaintiffs’ injuries. Rebecca Snella, a 17-year-old employee of the Oak Forest McDonald’s, testified that she was in charge of doing dishes the night of the armed robbery. The sink where she was working was on the same wall as the rear door. There was also a bathroom door within four feet of where she was working. Although Rebecca did not watch the bathroom door all night, she testified that she would have been aware of someone coming from that door. While she did not see Peter Logan (the robber) come through the back door, she stated that he approached her from the rear of the store. Logan himself testified that though he was under the influence of drugs and could not remember much about the evening, he did remember that he was attracted by the light over the back door. Moreover, Logan had been convicted of another robbery of a McDonald’s in Alsip three months earlier. There was conflicting testimony at trial about whether the earlier robbery involved an employee taking garbage out the back door after closing. There was also conflicting testimony about whether the rear door in the Oak Forest McDonald’s latched properly, and evidence that it had been opened at least twice after closing, once when employee Janet Brown went home, and again when Rebecca Snella emptied the garbage. While it is true that there is no direct evidence that Peter Logan entered the store through the rear door, there is more than ample circumstantial evidence on which the jury could conclude that Logan did indeed gain entry to the McDonald’s through the rear door and that the failure of McDonald’s security procedures facilitated that entry and were thus the proximate cause of injury to plaintiffs.

Defendant McDonald’s Corporation also contends that even if it had and breached a duty to plaintiffs which proximately caused their damages, such damages consist of emotional injuries only and as such are not compensable under the law. As support for this proposition, McDonald’s relies on the zone of danger rule and the physical injury requirement established by the Illinois Supreme Court in Rickey v. Chicago Transit Authority (1983), 98 Ill. 2d 546, 457 N.E.2d 1. Rickey applied to a child plaintiff who claimed damages for emotional distress after seeing his brother strangled when his scarf became caught in a Chicago Transit Authority escalator. In that case, the court held that in order to maintain an action for the negligent infliction of emotional distress a plaintiff needed to be in the zone of physical danger and needed to show physical injury or distress incurred as a result of the emotional distress caused by defendant’s negligence. Rickey, 98 Ill. 2d at 555.

We find the Rickey analysis inapplicable to the instant action. Plaintiffs Maureen Eancaid and Therese Dudek were not bystanders in a zone of danger who suffered emotional distress as a result of observing the murder of their co-worker. Rather, they were direct victims of an assault and battery perpetrated by Peter Logan and proximately caused by defendant McDonald’s negligence. Furthermore, both plaintiffs suffered lingering physical manifestations of their emotional distress. Both became depressed and withdrew from family and friends. Maureen Kincaid developed a fear of going out at night, became afraid to remain in her own home, and even contracted severe intestinal problems leading to a diagnosis of ulcerative colitis. Therese Dudek suffered from insomnia for a period of at least two years and could not eat regular meals. Both plaintiffs sought treatment from a counselor to help them deal with their problems.

Plaintiffs maintain that their case should be controlled by Corgan v. Muehling (1988), 167 Ill. App. 3d 1093, 522 N.E.2d 153 (on leave to appeal to Illinois Supreme Court), which held that the Rickey requirement of physical injury did not apply to direct victims of a defendant’s negligent infliction of emotional distress. In Corgan, the Illinois Appellate Court considered the issue of a psychologist’s malpractice vis-a-vis his patient and found it “inappropriate” to apply the Rickey requirements of zone of danger and physical injury to direct victims of a defendant’s negligence. (Corgan, 167 Ill. App. 3d at 1102.) In support of this approach, the Corgan court noted the reasoning in McAdams v. Eli Lilly & Co. (N.D. Ill. 1986), 638 F. Supp. 1173, 1178, and Lewis v. Westinghouse Electric Corp. (1985), 139 Ill. App. 3d 634, 638, 487 N.E.2d 107 (Linn, J. dissenting), as well as several social work malpractice cases, Horak v. Biris (1985), 130 Ill. App. 3d 140, 474 N.E.2d 13, and Wogelius v. Dallas (1987), 152 Ill. App. 3d 614, 504 N.E.2d 791.

While there is conflicting case law regarding the Corgan approach (see Lewis, 139 Ill. App. 3d 634 (majority opinion); Hammond v. Lane (1987), 162 Ill. App. 3d 17, 515 N.E.2d 828), and although we realize that the factual situation in the instant action is not identical to that in Corgan, we nevertheless find this approach persuasive in considering the issues raised by the case at bar.

Maureen Kincaid and Therese Dudek suffered the physical impact of Logan’s gun. Moreover, they were direct victims not only of Logan’s assault and battery, but also of McDonald’.s negligence. The physical injury requirements of the Rickey zone of danger rule, fashioned for a bystander case, cannot be applied here to achieve an equitable result. Furthermore, this factual setting, which involves both negligence, murder, assault and battery, is so unique as to be unlikely to pave the way for future frivolous allegations of emotional distress. Thus, for these reasons and based on the facts of this case, we find that plaintiffs Maureen Kincaid and Therese Dudek have stated a valid claim for the negligent infliction of emotional distress and are entitled to damages recognizable under the law.

WORKERS’ COMPENSATION CLAIM

McDonald’s Corporation argues that if this court finds it had an agency relationship with Karl Ferret, the manager of the Oak Forest McDonald’s, then this agency relationship had to be for the operation of the restaurant, which would make McDonald’s Corporation the joint employer of Ferret and the plaintiffs. If this situation would be found to exist, McDonald’s claims that it should be afforded the protection given in section 5(a) of the Illinois Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.5(a)), which states that the employee’s exclusive remedy for injury incurred in the course of employment against the employer is under the Act.

The jury in the case at hand correctly determined that Karl Ferret was the agent of McDonald’s Corporation. Jim Carlson and Steve Zdunek communicated directly with Ferret about security operations and management of the restaurant, and also had the ability to discharge Ferret. The jury also determined that because of the agency relationship between Ferret and McDonald’s Corporation, Ferret’s negligence in communicating safety procedures to the employees was attributable to McDonald’s Corporation. Even though this negligence is attributable to McDonald’s Corporation, it is not necessary to a finding of negligence on the part of McDonald’s Corporation, as McDonald’s Corporation was directly liable for its own negligence due to the failure of security procedures and the failure of Carlson and Zdunek, who were unquestionably its employees, to follow up. Nevertheless, the finding of an agency relationship between McDonald’s Corporation and Ferret and the subsequent attributing of Ferret’s negligence to McDonald’s Corporation still does not make McDonald Corporation Ferret’s employer. It certainly does not make McDonald’s Corporation the employer of the plaintiffs, and does not therefore implicate the Workers’ Compensation Act.

CLAIMS OF TRIAL COURT ERROR

Defendant McDonald’s Corporation claims that the trial court erred in allowing the testimony of plaintiffs’ security expert, Michael Caccitolo, as such testimony improperly relied upon witness depositions, and further, it related to matters of common knowledge. In support of its argument that Caccitolo improperly relied upon deposition testimony, McDonald’s cites the case of Dugan v. Weber (1988), 175 Ill. App. 3d 1088, 530 N.E.2d 1007, in which a testifying doctor/expert was not permitted to testify to facts and opinions which were based on the report of another doctor made in anticipation of the trial of the case, although the doctor could have testified based on facts and opinions prepared by medical personnel in the course of treating the injured party. While the doctor in Dugan had a choice of materials on which to rely, plaintiffs’ expert had no such options. Other than deposition testimony, there were no independent reports prepared by witnesses. Also, defendant argues that deposition testimony should not be relied upon because it is self-serving. However, the self-serving nature of deposition testimony is overestimated by defendant, as such testimony is used to impeach witnesses at trial. Furthermore, although defendant suggests that Mr. Caccitolo could have relied upon trial testimony in forming his opinions, this would have been impossible as Supreme Court Rule 220 (134 Ill. 2d R. 220) requires that the opinions of an expert witness be disclosed in advance of trial. Moreover, if defendant was convinced of the unreliability of Mr. Caccitolo’s testimony, it could have impeached his credibility by requiring him to disclose the basis of his opinions on cross-examination. See Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322.

Defendant also asserts that Mr. Caccitolo’s testimony was improperly admitted as it was based on matters of common knowledge, such as safety practices and procedures at the restaurant. Although case law supports the argument that expert opinions may not be admitted on matters of common knowledge (see Ray v. Cock Robin, Inc. (1973), 10 Ill. App. 3d 276, 293 N.E.2d 483, aff’d (1974), 57 Ill. 2d 19, 310 N.E.2d 9 (in which an expert was not permitted to testify as to what safety device would stop a vehicle from entering a picnic area)), it does allow for such opinions when the subject matter is difficult to comprehend. (See Deerhake v. DuQuoin State Fair Association, Inc. (1989), 185 Ill. App. 3d 374, 391, 541 N.E.2d 791.) In Deerhake, a case involving an accident which occurred at an unsanctioned drag race, plaintiffs’ witness was properly allowed to testify as to the management of large groups of people and matters of crowd control. Security procedures in a restaurant are no more a matter of common knowledge than procedures of crowd control. In fact, restaurant security was so complicated that McDonald’s itself hired an expert, Jim Carlson, to advise it on such matters.

McDonald’s also alleges that plaintiffs’ expert merely repeated testimony of the other witnesses. To the extent that repetition was involved, it was not prejudicial, and as stated above, cross-examination could have discredited any unreliable testimony.

The defendant also objects to certain jury instructions given by the trial court. These objections will be considered in turn. Defendant first objects to the giving of instruction IPI Civil No. 10.04 (Illinois Pattern Jury Instructions, Civil No. 10.04 (1968) (hereinafter IPI Civil)), which provides that it was the duty of the defendant to use ordinary care for the safety of the plaintiff. This instruction was given three times, once as to each plaintiff. Defendant objects to this instruction because it contends that it had no duty to plaintiffs, and also because the trial judge did not advise the jury as to what it was that created defendant’s duty. The objection to this instruction on the grounds that defendant had no duty to plaintiffs is simply a rehash of defendant’s arguments requesting a directed verdict, which was denied by the trial judge. The determination that defendant did have a duty to plaintiffs was a determination of law, was made by the trial judge, and is supported by the evidence. Therefore, the giving of such an instruction was not improper. The trial judge’s failure to explain the reason for his determination of duty does not render the instruction prejudicial. As stated earlier, the facts of the case amply support the trial judge’s determination.

Defendant also objects to plaintiffs’ instruction No. 19 concerning the various charges of negligence, as it contends that there is no proof of such negligence. The charges of negligence to which McDonald’s objects are as follows:

(a) insufficiently trained or instructed employees in safe and proper closing procedures;
(b) allowed employees to transport garbage to a dumpster located at the rear of the building at night when it was unsafe and dangerous;
(c) failed to place a required sign on the rear door stating that it must not be opened after dusk;
(d) failed to equip the rear door with a Detex alarm;
(e) failed to provide a rear entrance door with sufficient locks, handles and other devices to adequately secure the rear door; and
(f) failed to warn plaintiffs that criminal activities had occurred at other McDonald’s restaurants in the locality.

A review of the trial testimony reveals that there was evidence on every one of the charges of negligence which was submitted to the jury. Although some of the evidence may have been conflicting or circumstantial, it was sufficient to go to the jury, and up to the jury to make a determination of fact.

Defendant also objects to the giving of IPI Civil No. 50.04 modified (plaintiffs’ instruction No. 21) and IPI Civil No. 50.05 (plaintiffs’ instruction No. 22), and the failure of the court to give defendant’s instruction No. 3. These instructions all relate to the issue of agency and Karl Ferret’s alleged relationship to defendant McDonald’s Corporation. IPI Civil No. 50.05 defines the term “agent,” and IPI Civil No. 50.04 instructs the jury that if it finds Karl Ferret to be the agent of McDonald’s corporation, then any act of Ferret’s may be attributed to defendant McDonald’s Corporation. Defendant contends that these instructions were improper because Karl Ferret could not have been its agent, and that, therefore, any agency instructions would have been improper. This issue was also presented to the trial judge in defendant’s motion for a directed verdict. The judge determined, and the record supports, his determination that there was sufficient factual testimony (including McDonald’s Corporation’s direct communications with Ferret and the ability of its executives to demote him, transfer him, or let him go) to submit this issue to the jury. The above instructions are therefore not erroneous.

Defendant’s instruction No. 3, which was not given by the trial court, would have informed the jury of the effect of a franchise agreement on an agency relationship. The jury would have been told that it could consider the right of the franchisor to control the operation of the franchisee. It also would have been informed as to what controls the franchisor could exercise without establishing an agency relationship. Defendant claims that the failure of the court to give such an instruction deprived it of a defense to the finding of an agency relationship between McDonald’s Corporation and Karl Ferret. Even if the court had given this instruction, the control which McDonald’s exercised over Ferret was so great (the ability to demote him, transfer him, or let him go) that a finding of agency would still be supported by the evidence, notwithstanding the franchise agreement. Moreover, the failure of the court to give the franchise instruction did not prejudice defendant, as McDonald’s was held liable for its own negligence in failing to carry out its assumed duty, rather than simply because Ferret as an agent of the franchisee also failed to perform with due care.

Thus, we find that there was no trial court error which would entitle defendant to a judgment notwithstanding the verdict, or in the alternative, a new trial. We affirm the trial court’s determination of defendant McDonald’s negligence and its award of damages to the parents of Laura Martin for their daughter’s wrongful death, and to Maureen Kincaid and Therese Dudek for the negligent infliction of emotional distress.

Judgment affirmed.

LORENZ, P.J., and MURRAY, J., concur.