author: JUSTICE RARICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KARL MORGAN, Defendant-Appellant.
    Fifth District
    No. 5-92-0153
    Opinion filed September 17, 1993.

      Daniel M. Kirwan and Edwin J. Anderson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Robert Haida, State’s Attorney, of Belleville (Norbert J. Goetten, Stephen E. Norris, and Kendra S. Mitchell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

Defendant, Karl Keith Morgan, was charged in the circuit court of St. Clair County with the murder of 80-year-old Gertrude Eastwood. After a trial by jury, Morgan was found guilty of first-degree murder. The jury subsequently found Morgan eligible for the death penalty because the murder had taken place in the course of a sexual assault and a burglary. After a further hearing, the jury was unable to unanimously agree upon the imposition of the death penalty. The trial court subsequently sentenced Morgan to a term of natural life imprisonment.

Prior to trial, the State filed notice that it intended to seek the death penalty. The defendant moved to have a psychologist appointed to evaluate his fitness to stand trial. He also moved to suppress evidence of his statements to police on the grounds that he had not been competent to waive his rights against self-incrimination and because such statements were otherwise illegally obtained.

At the hearing on the motion to suppress, Dr. Daniel Cuneo, a clinical psychologist, was appointed to examine Morgan. Dr. Cuneo evaluated Morgan as having a mental illness consisting of alcohol dependence and polysubstance abuse. Dr. Cuneo’s report indicates that because of defendant’s use of alcohol at the time of the offense, he was not competent to waive his rights when the police took his statement. Dr. Cuneo also found that while mentally ill at the time of the offense, defendant would not qualify for an insanity defense and was competent to stand trial.

At the hearing on defendant’s motion to suppress, State Police Detectives Robert Knezevich and Donald Leach testified. After viewing the crime scene, they went to State Police headquarters where defendant was being held. They first spoke with Gary Douthit, defendant’s friend, who had been arrested along with him. They then questioned the defendant. Both testified that they observed that while defendant did not appear to be intoxicated, defendant had been drinking. Knezevich stated that defendant did not appear intoxicated and was calm and relaxed. Defendant was again read his Miranda rights and never indicated that he did not understand his rights. Defendant also signed a waiver of rights. Defendant was initially calm and appeared to understand what was going on. He was cooperative and willing to answer questions. After being told by the detectives that they did not believe defendant’s initial story that he had spent the day visiting friends, defendant broke down and gave the statement in question to them. Defendant read the statement, made some changes, and signed it. In his statement, defendant indicated that he did not specifically remember stabbing Eastwood but knew that he had done it and that the blood on his pants was hers. He also believed that he had sexually assaulted her but again did not specifically remember. He did remember going to her house, being admitted by Eastwood, and taking money and two television sets. Defendant was able to describe details of the crime scene that were not common knowledge. Detective Leach testified that defendant signed his waiver of rights willingly. Defendant indicated that he understood his rights. He also indicated defendant seemed somewhat nervous and anxious. After signing his waiver of rights form, defendant said he had been drinking most of the previous day and evening. When the detectives told defendant they thought he was responsible, he asked for a cigarette and gave them the statement in question, which Leach reduced to writing. After making a few changes, defendant signed each page.

State Police Troopers William White and Mark Sprankle and Sergeant Stanley Donald also testified. Sergeant Donald testified that on the night in question, he received a call from Bill Wolfe, one of Eastwood’s neighbors, reporting that he had seen a man walking around a neighbor’s house and that he later saw the same man carrying something down an alley. The man set the object down and got into a black AMC Pacer automobile. Sergeant Donald dispatched Trooper Mark Sprankle to the scene. Sergeant Donald testified that he later went to the scene himself, where he saw defendant with blood on his pants. Sergeant Donald also testified that while it was obvious that defendant had been drinking, he was able to walk unassisted.

Trooper Sprankle testified that he was dispatched to the scene to investigate a possible burglary. Sprankle testified that upon arriving at the scene, he spoke to Wolfe, who stated that he had heard his dog barking, and when he went to investigate he saw a white man in the alley, and the man ducked out of sight when he turned on the light. Wolfe went back to watching TV, but his dog began barking again. Wolfe again went to investigate and saw the same man carrying something. The man set the object down and got into a black AMC Pacer that had just driven up with its lights off. Sprankle then checked the alley between the houses where he found two television sets. Sprankle called Trooper White and told him to look for a black AMC Pacer occupied by two white males who were wanted for burglary. While on the porch of the victim’s house, he observed White make a traffic stop, approximately one-half block away. Defendant was placed under arrest for burglary and read his Miranda rights. Sprankle then entered Eastwood’s home through an unlocked side door where he found her body. Sprankle also testified that he could smell alcohol on defendant’s breath. Sprankle further testified that defendant had not seemed intoxicated, and when given his Miranda warnings, defendant indicated that he understood.

Trooper White testified that he was called to the scene by Sprankle to assist with a possible burglary. While en route, he was told that two male suspects left the scene in a dark-colored AMC Pacer. Upon arriving at the scene, White observed a black AMC Pacer with two male occupants at the other end of the block. White stopped the car and Sprankle came up to assist. White testified that he and Sprankle read the defendant his Miranda rights and that defendant appeared to understand. White also testified that he smelled alcohol on defendant’s breath, but that defendant could walk unassisted.

Dr. Cuneo testified that he first saw defendant on July 19, 1991, and saw him two more times subsequently. Dr. Cuneo also reviewed defendant’s hospital records and the police records and gave defendant a standard psychological test. Based upon these factors, Dr. Cuneo concluded that defendant was an alcohol-dependent poly-substance abuser. Dr. Cuneo also testified that defendant had a history of going on prolonged drinking binges after arguing with his girl friend. One such episode had occurred in 1990 prior to his attempt to commit suicide with alcohol, and another occurred prior to the night of defendant’s arrest for the murder of Eastwood. Dr. Cuneo opined:

“If Mr. Morgan had been on a bender, and if Mr. Morgan had been drinking steadily during this period of time, and if Mr. Morgan had also abused different types of drugs during this period of time, and again, this is self-reported to me he had stated, then Mr. Morgan would not have had the ability to intelligently and knowingly and willfully waive his right — his rights at that time.” (Emphasis added.)

Dr. Cuneo admitted that he did not have personal knowledge of defendant’s condition at the time of questioning or what defendant’s blood-alcohol content had been.

The defendant testified that he had little or no recollection of talking with police. Defendant indicated that he suffered blackouts and believed he was drunk when he talked with the police. He did not know how much he had had to drink on November 22, 1990, but he had been drinking most of the day. He did not remember making any statements to police or signing any documents. Defendant also testified that he knew he had been drinking beer on November 23, 1990, because he remembered taking a case to Gary Douthit’s house.

The trial court denied defendant’s motion to suppress, finding that under the totality of the circumstances, the defendant’s waiver of his rights and his statements to police had been voluntarily, knowingly, and willingly made.

At trial, Detectives Knezevich and Leach testified about their interrogation of Douthit and the defendant. They recounted the circumstances surrounding defendant’s making his statement, and over objection, Leach read defendant’s statement in which defendant admitted robbing, raping, and murdering Eastwood. Sergeant Donald and Troopers Sprankle and White testified to the circumstances of their investigation and subsequent arrest of the defendant.

Gary Douthit testified that he had pleaded guilty to theft over $300 and received a sentence of probation. Douthit was a friend of the defendant’s and had worked with him at Relleke Farms. Defendant and his brother had spent November 23, 1990, drinking beer with Douthit at his house. Defendant left around 9:30 p.m. to get more beer. He returned around midnight and awakened Douthit and asked Douthit to help him get some televisions he had stolen. He agreed to give Douthit $250 for his help. It was while attempting to retrieve the stolen televisions that Douthit and defendant were stopped by police and arrested. Douthit testified that he did not know there had been a murder until police questioned him about it.

Dr. Cuneo testified that defendant was alcohol dependent and a polysubstance abuser. Dr. Cuneo also testified that defendant had a history of alcohol abuse going back to the age of eight and of going on “benders” from four to seven days. Defendant suffered blackouts from drinking and had the “shakes” and memory losses when he did not drink. Defendant had attempted suicide eight times. Dr. Cuneo testified that alcohol-dependent individuals could become mentally impaired from drinking without displaying any physical signs of drunkenness. Dr. Cuneo opined that the defendant had been so intoxicated at the time of the offense that he could not have formed the intent to commit murder.

Defendant testified that he was 29 years old and had been drinking since age eight. He had been hospitalized in the past for alcohol abuse and suicide attempts. He suffered memory losses and blackouts from drinking. He had worked for eight years at Relleke Farms as a farmhand. He knew Eastwood and had performed odd jobs for her.

Defendant also testified that he had been drinking beer for two days prior to November 23, 1990. On that day he had been at Douthit’s house drinking beer and whiskey. He did not remember leaving Douthit's house, going to Eastwood’s house, being arrested, or talking with police. Defendant stated that he did not think he could have killed Eastwood, but if he had, he apologized to her family.

On appeal, defendant argues that his waiver of his Miranda rights was not knowingly and intelligently made, and the use of his statement made after such waiver denied him a fair trial.

For a defendant’s confession to be admissible at trial, the State must prove by a preponderance of the evidence that the defendant knowingly, intelligently, and voluntarily waived his privilege against self-incrimination and his right to counsel. (People v. Reid (1990), 136 Ill. 2d 27, 54, 554 N.E.2d 174, 185, citing Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602; People v. Clark (1986), 114 Ill. 2d 450, 457, 501 N.E.2d 123, 126.) In determining whether a defendant knowingly and intelligently waived his Miranda rights, the trial court must consider the totality of the circumstances without any one factor controlling. (Reid, 136 Ill. 2d at 54-55, 554 N.E.2d at 187.) Whether a defendant validly waived his rights is essentially a question of fact and will not be disturbed unless it is against the manifest weight of the evidence. People v. Woidtke (1992), 224 Ill. App. 3d 791, 587 N.E.2d 1101.

Defendant maintains that the trial court’s ruling was erroneous because the State failed to rebut the testimony of Dr. Cuneo that given the amount of alcohol defendant had consumed he would not be capable of knowingly and intelligently waiving his rights. The trial court is not obliged, however, to accept the opinions of psychologists. (See People v. Lamerson (1989), 190 Ill. App. 3d 52, 545 N.E.2d 1025.) Because an expert’s opinion is only as valid as the underlying basis or reasons, the trial court must analyze the factual bases for such opinion. (People v. Williams (1980), 87 Ill. App. 3d 860, 409 N.E.2d 439.) In the present case, Dr. Cuneo based his opinion on several assumptions: that defendant had been drinking for at least 24 hours prior to his arrest; that he was still under the influence of alcohol at the time he confessed to the murder; and that he was recovering from a “bender” at the time of his statements to police. Based upon these assumptions, Dr. Cuneo opined that defendant would not have been able to knowingly and intelligently waive his rights. As Dr. Cuneo himself acknowledged, much of the information he relied upon came from the defendant. Where an expert’s opinion is based upon the credibility of the defendant, however, such opinion is questionable. (People v. Rogers (1988), 123 Ill. 2d 487, 528 N.E.2d 667.) There was no evidence of defendant’s blood-alcohol content at the time of his arrest and subsequent statements to the police. The only evidence of drinking prior to the murder came from defendant and Douthit. Given the totality of the circumstances, we cannot say that the trial court’s ruling on defendant’s motion to suppress was against the manifest weight of the evidence.

Defendant next argues that his sentence of natural life imprisonment is excessive and represents an abuse of discretion. Defendant contends that such a sentence completely rejects the possibility of rehabilitation, a possibility that could be realized, defendant maintains, if he were to receive treatment for his alcohol- and polysubstance-abuse problems.

Imposition of sentence rests with the sound discretion of the trial court, and the trial court’s decision will not be reversed absent an abuse of that discretion. (People v. Boyle (1987), 161 Ill. App. 3d 1054, 1097, 514 N.E.2d 1169, 1196, citing People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) Further, where a sentence is within the statutory limits, it will not be set aside on review unless it is “manifestly disproportionate to the nature of the offense.” (People v. Costello (1992), 224 Ill. App. 3d 500, 510, 586 N.E.2d 742, 749.) The defendant concedes that his natural life prison sentence was within the statutory guidelines, but he argues that in imposing such a sentence, the trial court rejected any consideration of rehabilitation. With respect to defendant’s rehabilitative potential, we presume that the trial court took this factor into consideration, as there is nothing in the record indicating otherwise. (People v. Clark (1991), 207 Ill. App. 3d 439, 565 N.E.2d 1373.) While the defendant’s rehabilitative potential is a factor to be considered, the trial court is not required to give greater weight to that consideration than to the seriousness of the offense. (People v. Fort (1992), 229 Ill. App. 3d 336, 341-42, 592 N.E.2d 1205, 1210; People v. Dower (1991), 218 Ill. App. 3d 844, 578 N.E.2d 1153.) The nature of the crime, the protection of the public, deterrence, and punishment all have equal status in the determination. (People v. Generally (1988), 170 Ill. App. 3d 668, 677, 525 N.E.2d 106, Ill.) The trial court is not required, however, to find that the defendant has no rehabilitative potential before sentencing him to a term of natural life. People v. Walker (1992), 227 Ill. App. 3d 102, 106, 590 N.E.2d 1018, 1021, citing People v. Chambers (1990), 200 Ill. App. 3d 538, 549, 558 N.E.2d 274, 282.

In the present case, defendant was convicted of stabbing an 80-year-old woman to death during the course of committing burglary and aggravated criminal sexual assault. The trial court found the following factors in aggravation: that the offense was committed during the course of a burglary; that the victim was over 60 years old; that the defendant had a history of criminal behavior; and that defendant’s actions were heinous, brutal, and indicative of wanton cruelty. With respect to mitigation, the record demonstrates that the trial court considered defendant’s presentence investigation report, the supplements thereto, and defendant’s alcoholism. We cannot say that the trial court’s sentence of natural life imprisonment was an abuse of discretion.

For the foregoing reasons, the judgment of the circuit court of St. Clair County is affirmed.

Affirmed.

GOLDENHERSH and MAAG, JJ., concur.


source: Caselaw Access Project

author: JUSTICE RARICK JUSTICE WELCH,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RODERIC HODGE, Defendant-Appellant.
    Fifth District
    No. 5 — 92—0568
    Opinion filed September 21, 1993.

      WELCH, J., concurring in part and dissenting in part.
    Irving Miller, of Ryan, Miller & Trafelet, P.C., of Chicago, for appellant.
    Jeffery Farris, State’s Attorney, of Cairo (Norbert J. Goetten, Stephen E. Norris, and Mary H. Doyle, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

Defendant, Roderic Hodge, was found guilty by a jury in the circuit court of Alexander County of unlawful possession of a controlled substance with intent to deliver (cocaine), unlawful use of weapons, and possession of a firearm without the requisite firearm owner’s identification card (FOID) (Ill. Rev. Stat. 1991, ch. 56½, par. 1401(c); Ill. Rev. Stat. 1991, ch. 38, pars. 24 — 1(a)(4), 83 — 2). Codefendant Derrick Boyd was tried at the same time, represented by the same attorney. The court sentenced defendant on the intent-to-deliver conviction to four years’ probation with six months in the county jail, six months’ home confinement, a fine of $10,000, and an $800 street-value fine. On the unlawful use of weapons charge, the court sentenced defendant to six months in the county jail and imposed a fine of $500 plus court costs. Defendant was ordered to pay a $500 fine plus costs on his conviction for possession of a firearm without an FOID.

Defendant appeals, contending: (1) he was not proven guilty beyond a reasonable doubt of unlawful possession of a controlled substance with intent to deliver; (2) defense counsel provided ineffective assistance which rendered the outcome of the trial unreliable; (3) the trial court erred by not granting defendant’s motion for mistrial predicated on an allegedly improper communication between an employee of the State’s Attorney’s office and a juror; and (4) the trial court erred in imposing a $10,000 fine without making a determination as to defendant’s ability to pay such a fine.

On March 17, 1992, Cairo police officers responded to a call from the McBride Housing Courts which reported that two “Texas boys” were beating a man in the housing project. Two officers responded and observed a group of men attacking another man. As the officers approached, the group, including the victim of the beating, scattered and ran. The pursuit of the individuals involved was unsuccessful, and the officers returned to the housing project. An unidentified person approached them and told them that the person responsible for the beating was over in the “800 row” of the McBride Housing Courts. An anonymous tipster also telephoned the Cairo police department and said that the two men responsible for the beating were in apartment number 844 of the McBride project. Several officers went to that address and were met by the occupant, Robin Heard. Ms. Heard told the officers to wait outside the apartment while she went into her apartment and ordered defendant and his companion to leave. Defendant left the apartment first, and his companion, codefendant Derrick Boyd, emerged shortly thereafter.

Ms. Heard gave the police officers permission to search her home. The police found a semiautomatic handgun and a pill vial lying in close proximity to one another on a cedar chest in the living room of the apartment. The gun and vial were partially concealed by a heap of clothing lying on top of the chest. The discovery of the gun and pill vial, which appeared to contain cocaine, prompted the police to place defendant and Boyd under arrest.

When defendant was booked, he had about $900 in cash in his possession, $860 of which was in $20 bills. Defendant attributed his bankroll to earnings from the cleaning service he and his wife ran in northern Illinois. Boyd had $1,142 in cash on his person when he was arrested, $860 of which was in $20 bills. Boyd explained that the money was the proceeds from his work washing cars, changing oil and tires, and working on lawnmowers in the Cairo area for people whose names he could not remember.

At trial, Robin Heard testified that defendant and his companion were mistakenly let into her apartment by two of her children. When Ms. Heard went downstairs to investigate, she found that the downstairs lights had been turned off. Defendant informed her that they had entered her apartment because the police were outside and that they would leave if she felt uncomfortable. She responded that she was uncomfortable and asked them to leave, but they did not do so. Ms. Heard had seen defendant and his companion around the neighborhood before but had never spoken or socialized with them. She knew defendant as “Rick” and Boyd as “Dee.”

Defendant and Boyd roamed around the apartment, upstairs and down, looking out of windows as they did so. Both knelt at a cedar chest by the living room window in order to look out of the window from the darkened room. When Ms. Heard turned the lights on, defendant turned them off. When she again turned them on, defendant ordered her to turn them off and keep them off, and Ms. Heard obeyed.

Ms. Heard’s neighbor, Carla Wells, came to the apartment to inform Ms. Heard the police were searching for someone. Ms. Wells came in and went upstairs with Ms. Heard. Defendant was in the upstairs bathroom, and Boyd was in Ms. Heard’s daughters’ room. The children became noisy, prompting defendant to order Ms. Wells to make the children be quiet. She met with limited success, and defendant again instructed her to go into the girls’ room and tell them to be quiet. Ms. Wells complied briefly with defendant’s demand and then left to check on her own children.

Everyone then went downstairs, and defendant sent Ms. Heard outside to see where the police were. Ms. Heard went outside but, concerned about her children’s well-being, remained by the back door with Ms. Wells and Ms. Wells’ companion. The police approached Ms. Heard and told her they had been informed that the two men for whom they were looking had run into her house. Being apprehensive about the safety of her children, Ms. Heard informed the police she would go inside and persuade defendant and Boyd to come out. Ms. Heard entered the house and told defendant the police wanted him to come out with his hands up. Before he complied, defendant removed a pistol from the back waistband of his trousers and placed it on the kitchen table. As he began to go out the kitchen door, he was met by an officer inquiring as to the whereabouts of Boyd. Ms. Heard asked the officer to wait while she got defendant’s companion. She found Boyd at the top of the stairs. Boyd came down and exited with the officers.

Ms. Heard then gave the police officers permission to search her house. She turned on the living room lights, and the officers immediately spotted the gun, partially hidden under clothing heaped on the cedar chest in the living room by the front window. As an officer picked up the gun from the cedar chest, Ms. Heard heard a rattling sound. She observed the officer pick up a pill vial. Ms. Heard further testified she did not own a gun and did not permit any kind of drugs in her house. Ms. Heard also reported that several days after defendant had been arrested and released on bond, he approached her and asked her to take responsibility for the drugs found in her apartment. Defendant assured her that he would take care of her while she was incarcerated. Ms. Heard refused to do so. Defendant then tried to persuade her to place the blame on Boyd. Again, she refused.

The State also presented testimony through one of the police officers that the substance in the pill vial was crack cocaine weighing approximately 4.07 grams. This quantity was equivalent to approximately 40 doses of crack cocaine which sold on the street in Cairo for $20 each. According to the officer, four grams of crack cocaine was a larger amount of the drug than would normally be possessed by a drug addict for personal consumption.

Ms. Heard’s live-in companion testified that neither the gun nor the cocaine found in her apartment belonged to him and that he had never had cocaine in the apartment. Ms. Wells also testified she did not have any cocaine when she went into Ms. Heard’s apartment on the date in question, nor had she seen any cocaine or a gun in the apartment at that time.

Boyd testified that he was a resident of Houston, Texas, and had been visiting a girl friend in Cairo. He asserted that he ran from the commotion in the housing project because he feared the Cairo police. When he entered the Heard apartment with defendant, he did not know defendant was armed and had never seen the pill vial containing the cocaine. He also asserted he did not know defendant very well and did not consider him “a real, real close friend.” While he claimed defendant was merely a speaking acquaintance, Boyd admitted that they had gone to local clubs and people’s homes together and that he had ridden in the same automobile alone with defendant. He further maintained it was purely coincidental that he ended up running away from the commotion with defendant, and that they had both run into the same house to seek refuge from the police. Boyd admitted he had been staying with his girl friend, right across from Ms. Heard’s apartment, and yet had chosen to run into Ms. Heard’s apartment rather than return to the apartment he shared with his girl friend.

Defendant testified he was in Cairo visiting a girl friend at the time of his arrest. He characterized his relationship with Boyd as “just a gentlemen [sic] I’ve seen on the street.” He stated he had a large amount of $20 bills when arrested because it was more convenient to pay for purchases with smaller bills as many people were unwilling to change a $50 or $100 bill. He further testified he had run from the approaching police cars because he wanted to get out of the way of the police in order to let them do their job. He maintained he was carrying a gun in the back waistband of his trousers to protect the large amount of cash on his person in a high-crime area. Defendant admitted he did not have an FOID.

Defendant next testified he was just “hanging out” at the housing project on the date of his arrest. He described Boyd as a casual acquaintance with whom he ended up running and going into Ms. Heard’s house by happenstance. According to defendant, Ms. Heard suggested that he and Boyd not leave during the commotion and that it would be all right for them to remain in the apartment until the furor had died down. He admitted telling Ms. Wells to keep the children quiet. Defendant also testified he left the gun on the kitchen table of Ms. Heard’s apartment, not on the cedar chest in a pile of clothing.

The jury was instructed, inter alia, on constructive possession and accountability for the acts of others. After defendant was found guilty, he obtained private counsel. A post-trial motion seeking a new trial was denied, defendant was sentenced, and the instant appeal ensued.

When reviewing a challenge to the sufficiency of the evidence supporting a finding of guilt, we do so from a perspective which recognizes that it is the function of the jury to determine the accused’s guilt or innocence. We will not reverse a conviction unless the evidence is so improbable as to warrant a reasonable doubt of the defendant’s guilt. (People v. Eyler (1989), 133 Ill. 2d 173, 191, 549 N.E.2d 268, 276.) The relevant question is whether, viewing the evidence in the light most favorable to the prosecution, any trier of fact could have found the elements of the crime beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.) We bear in mind that it is the province of the jury to weigh witness credibility and to resolve conflicts or inconsistencies in testimony. People v. Phillips (1989), 127 Ill. 2d 499, 514, 538 N.E.2d 500, 503.

A conviction for unlawful possession of a controlled substance with intent to deliver must be supported by evidence which establishes that the defendant had knowledge of the presence of narcotics, the narcotics were in the immediate control or possession of the defendant, and the amount of narcotics was in excess of any amount which might be viewed as merely possessed for personal use. (People v. Herrera (1992), 238 Ill. App. 3d 284, 291, 606 N.E.2d 267, 272.) Defendant asserts there is no evidence to support the conclusion that he actually or constructively possessed the cocaine or that he aided or abetted Boyd in doing so. Possession of narcotics may be established by evidence of either actual or constructive possession. (People v. Songer (1992), 229 Ill. App. 3d 901, 905, 594 N.E.2d 405, 408.) When narcotics are found on the premises, rather than on the person of the defendant, the State must prove the defendant had control of the premises in order to permit the inference that the defendant had knowledge and control over the narcotics. (People v. Adams (1993), 242 Ill. App. 3d 830, 832, 610 N.E.2d 763, 765.) It is a reasonable inference that a person has requisite knowledge of possession, absent other facts and circumstances which might create a reasonable doubt as to guilt in the minds of the jury, where narcotics are found on the premises under the defendant’s control. (People v. Frieberg (1992), 147 Ill. 2d 326, 361, 589 N.E.2d 508, 524.) Moreover, a finding of constructive possession may be based on a person’s intent and capability to maintain control and dominion over a controlled substance, even though he does not exert actual personal present dominion over it. Frieberg, 147 Ill. 2d at 361, 589 N.E.2d at 524.

Viewing the evidence in the light most favorable to the prosecution, we find defendant possessed the intent and the capability to maintain control and dominion over the Heard apartment. This, in turn, allows the inference that defendant knew of the presence of the drugs and intended to exert control and dominion over them. After defendant and Boyd were let into the apartment by Ms. Heard’s young children, defendant proceeded to take command. He turned off the lights in the apartment and was successful in intimidating Ms. Heard into leaving them turned off so that he might look out of the windows of the apartment to monitor police activity without risking observation. He ordered Boyd to circulate about the apartment, upstairs and down, in order to observe police activity from various vantage points. When Ms. Heard’s neighbor was admitted to the apartment, he ordered her to control the children and keep them quiet on two separate occasions. Clearly, defendant was in constructive possession of the residence and, by inference, the drugs.

Defendant asserts that the State failed to establish his guilt beyond a reasonable doubt based on accountability for his codefendant’s actions. Section 5 — 2(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 5-2(c) (now 720 ILCS 5/5-2(c) (West 1992))) states as follows:

“A person is legally accountable for the conduct of another when:
* * *
(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.” (Ill. Rev. Stat. 1991, ch. 38, par. 5-2(c).)

The intent to promote or facilitate a crime may be shown by evidence that the defendant shared the criminal intent of the principal or by evidence that there was a common criminal design. (People v. Stanciel (1992) , 153 Ill. 2d 218, 234-35, 606 N.E.2d 1201, 1210.) Common design can be inferred from the circumstances surrounding the commission of an unlawful act. (People v. Mata (1993), 243 Ill. App. 3d 365, 370, 611 N.E.2d 1235, 1240.) Words of agreement are not necessary to establish a common criminal design. (People v. Lovelady (1991), 221 Ill. App. 3d 829, 840, 582 N.E.2d 1217, 1227.) A person’s assistance prior to or during the crime which amounts to accountability may be inferred from conduct which occurs after the event. (People v. Lee (1993) , 243 Ill. App. 3d 29, 35, 611 N.E.2d 561, 564.) Here, defendant and Boyd ran together from the site of the beating to the Heard apartment. Once they were admitted by the children, they cooperated in maintaining surveillance of the area in front of and behind the building. After defendant left the apartment to surrender, leaving his gun on the kitchen table, Boyd surrendered. Upon gaining entry to the apartment, the police found the gun in the living room, where it had been deposited with the vial of crack cocaine under a jumble of clothing. It is clear that the jury listened to the evidence and inferred that defendant and Boyd acted in concert when they ran from the police and commandeered Ms. Heard’s apartment as a lookout post. The jury obviously concluded that the presence of the crack cocaine and automatic weapon in the apartment was attributable to one or both of defendants and that the evidence supported findings of guilt for both defendants based on constructive possession and accountability. Jurors are entitled to believe as little or as much of the testimony of the witnesses as they choose. (People v. Fusco (1993), 245 Ill. App. 3d 524, 528, 615 N.E.2d 38, 41, citing People v. Warren (1965), 33 Ill. 2d 168, 174, 210 N.E.2d 507, 510.) They chose to disbelieve defendant and Boyd and believe the State’s witnesses. Their conclusions on issues of credibility are within their exclusive purview. (See People v. Reid (1990), 136 Ill. 2d 27, 61, 554 N.E.2d 174, 190.) We find that any rational trier of fact could have so concluded, after viewing the evidence in the light most favorable to the prosecution.

Although defendant placed the automatic pistol on the kitchen table prior to leaving the house by the kitchen door, the gun was found immediately adjacent to the pill vial containing crack cocaine on a cedar chest in the living room, in front of the living room window. Ms. Heard testified that after Ms. Wells left her apartment, “We all went downstairs.” After defendant left the house, the only people remaining in the house were two small children, who were in upstairs bedrooms, and Boyd, who, Ms. Heard said, “was upstairs or by the front door.” When Ms. Heard returned to the house to persuade Boyd to leave peaceably, she found him standing at the head of the stairwell. The circumstantial evidence presented at trial clearly led the jury to determine that Boyd, for whose action defendant was accountable, moved the gun from the kitchen table to the cedar chest in the living room and hurriedly attempted to conceal both the gun and the vial of crack cocaine under a pile of clothing prior to going back upstairs. Where the truth must be ascertained from a debatable set of circumstances, it is a matter for the trier of fact and it is not for the reviewing court to substitute its own opinion. (People v. Bowman (1990), 138 Ill. 2d 131, 139, 561 N.E.2d 633, 637.) Although both defendant and Boyd disavowed any connection with the vial of crack cocaine, Ms. Heard, Ms. Wells, and Ms. Heard’s live-in companion all testified that the pill vial which contained the crack cocaine was not theirs. Witness credibility is a matter of determination by the trier of fact. It is not the function of a reviewing court to retry a defendant when considering a challenge to the sufficiency of his guilt, and determinations of the credibility of the witnesses, the weight to be given their testimony, and the reasonable inferences to be drawn from the evidence are the responsibilities of the trier of fact. (People v. Thomas (1993), 242 Ill. App. 3d 266, 275, 609 N.E.2d 1067, 1073.) Given these rules of appellate review, we find it inappropriate to reassess witnesses’ credibility and therefore acquiesce in the jury’s finding in regard to defendant’s possession of the crack cocaine. We cannot say that the jury’s findings in this instance are so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt of defendant’s guilt of possession of a controlled substance. See People v. Wells (1993), 241 Ill. App. 3d 141, 146, 608 N.E.2d 578, 583.

The issue of whether defendant possessed the crack cocaine with the intent to deliver, however, is more problematic. Evidence presented by the State revealed the amount of cocaine found in the pill vial exceeded that which was usually possessed for personal use. Additional evidence revolved around the street value of the cocaine and the fact that drug dealers typically carry weapons and large amounts of drugs and currency. (See People v. Stone (1993), 244 Ill. App. 3d 881, 890, 614 N.E.2d 293, 300.) Such testimony was of a nature which would be helpful to a jury in differentiating between those who use narcotics and those who deal narcotics. It is undisputed that defendant possessed no drug paraphernalia normally associated with users, such as hypodermic needles, straws, or pipes. (See People v. Brown (1992), 232 Ill. App. 3d 885, 890, 598 N.E.2d 948, 951.) By the same token, however, defendant did not possess a scale, packaging materials, or plastic bags normally associated with dealers. Moreover, the rocks of crack cocaine were not individually packaged in a fashion which would indicate that defendant was a dealer in cocaine rather than a user. See People v. King (1991), 218 Ill. App. 3d 248, 253, 578 N.E.2d 217, 218; Brown, 232 Ill. App. 3d at 890, 598 N.E.2d at 958.

Intent to deliver is a finding which must be made on a case-by-case basis; each case must be decided on its own facts. (People v. Kline (1976), 41 Ill. App. 3d 261, 266, 354 N.E.2d 46, 51.) Where a defendant possesses not only drugs but drug paraphernalia associated with dealing, as opposed to the use of drugs, and large amounts of cash and weapons, the inference of possession with intent to deliver is enhanced. (People v. Berry (1990), 198 Ill. App. 3d 24, 28-29, 555 N.E.2d 434, 437.) Possession with intent to deliver has been found where a defendant carried a smaller amount of cocaine than was involved here. In People v. LeCour (1988), 172 Ill. App. 3d 878, 527 N.E.2d 125, the defendant did not carry a large amount of currency and had no drug paraphernalia on his person, although he did possess 3.3 grams of cocaine. The court found the defendant guilty of possession with intent to deliver based on direct testimony of an informant who had previously purchased one gram of cocaine from the defendant and had arranged to purchase 3.3 grams the next day. When the defendant was arrested, prior to an actual exchange of money for drugs, at the agreed-upon delivery location, he possessed 3.3 grams of cocaine. The amount of cocaine he possessed was precisely that which had been agreed upon for delivery.

In People v. Newman (1991), 211 Ill. App. 3d 1087, 1094-96, 569 N.E.2d 1089, 1093, the defendant was found guilty of unlawful possession with intent to deliver based on constructive possession. Defendant was arrested as he attempted to flee from an apartment which was used as a drug-processing depot during a drug raid. Two others were arrested. One man had .8 of a gram of cocaine and $273 on his person. The other man had previously been seen dealing drugs from the apartment and had $2,000.96. Defendant had $22 in his shoe and no drugs. Defendant had no connection with the apartment, which was filled with drugs, drug-processing equipment, cutting agents and guns and included no items associated with day-to-day living. Defendant had never been seen in the apartment in the past and was in the apartment about one-half hour prior to his arrest. The reviewing court found that circumstantial evidence supported the defendant’s conviction for possession with intent to deliver based on constructive possession: his presence in a drug-processing apartment for a longer period than a normal “buy” would take and his attempt to flee from a back room where over 53.3 grams of cocaine were discovered were found sufficient to warrant conviction.

In People v. McLemore (1990), 203 Ill. App. 3d 1052, 1056, 561 N.E.2d 465, 467, the defendant possessed 3.3 grams of cocaine divided into 15 individual packets and either four or five $100 bills on her person. This court found that there was insufficient evidence presented to support the charge of possession with intent to deliver. Its opinion was founded, in part, on the fact that there was no evidence presented that 3.3 grams of cocaine were more than could have been consumed by the defendant in a six-hour interval, and the court stated that had the State introduced evidence to that effect, then the conviction could have been affirmed.

Although the State presented evidence in the instant case that the 4.07 grams of crack cocaine were sufficient to provide a user with four to five weeks of drugs, the lack of drug-dealer paraphernalia or individual packaging for resale and the lack of evidence of drug transactions or other, more positive, indicia of drug dealing lead us to the conclusion that defendant’s conviction for possession of a controlled substance with intent to deliver cannot be sustained. (People v. Crenshaw (1990), 202 Ill. App. 3d 432, 434-36, 559 N.E.2d 1051, 1052-55.) While defendant had a large amount of cash on his person, he attributed it to income from the cleaning service he and his wife ran. In light of such circumstances, we reverse defendant’s conviction and sentence for possession with intent to deliver. Pursuant to our authority under Supreme Court Rule 615(b) (134 Ill. 2d R. 615(b)), however, we reduce the degree of the offense, entering judgment for the lesser offense of possession of a controlled substance (cocaine), and we remand for sentencing on the conviction for possession of cocaine.

Defendant’s next contention is that he was provided ineffective assistance of counsel because counsel failed to object to the State’s introduction of his testimony from the hearing on his motion to suppress as substantive evidence at trial and for the purpose of amending the information against him. At the time of the hearing, defendant testified that the pistol recovered from the cedar chest in Ms. Heard’s living room was his and that he had left it on the kitchen table of the apartment prior to exiting the back door. He also testified that he did not have an FOID card at the time of his arrest. Following the May 7, 1992, motion hearing, the State amended the information against defendant to assert charges of unlawful possession of weapons and possession of a firearm without the requisite FOID. The State also read the entire transcript of the motion hearing into the record in its case in chief without' objection.

In order to prevail on a claim of ineffective assistance of counsel, defendant must show both that his counsel afforded him representation which fell below an objective standpoint of reasonableness and that there is a reasonable probability that the outcome of the trial would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068.) It is not necessary to determine whether counsel’s performance was deficient if the reviewing court may dispose of the claim of ineffective assistance of counsel on the basis that the defendant failed to demonstrate sufficient prejudice. People v. Albanese (1984), 104 Ill. 2d 504, 507, 473 N.E.2d 1246, 1256.

While defendant’s admissions at a hearing on a motion to suppress evidence are not admissible at trial on the issue of guilt (see United States v. Salvucci (1980), 448 U.S. 83, 93, 65 L. Ed. 2d 619, 629, 100 S. Ct. 2547, 2254), they may be admitted for the purpose of impeachment if the defendant opts to testify (see People v. Ortiz (1990), 197 Ill. App. 3d 250, 257, 554 N.E.2d 416, 421). Trial counsel did not object to the entry into evidence of defendant’s testimony of the motion to suppress, but defendant’s new post-trial counsel did include it as an issue in his post-trial motion.

The introduction of defendant’s motion to suppress testimony in the State’s case in chief did not prejudice defendant to the point that his attorney’s failure to object to its introduction altered the outcome of the trial. At the time the evidence was read by the State’s Attorney, Ms. Heard had already testified she observed defendant remove the weapon from the back waistband of his trousers. One officer testified defendant had admitted to the authorities the gun was his, and two other officers testified defendant did not have an FOID card when he was arrested. Defendant’s testimony from the motion to suppress hearing therefore was merely cumulative. Under such circumstances, it cannot be argued but for the introduction of this evidence defendant would not have been found guilty.

Defendant further contends his counsel was inadequate because he failed to object to the filing of two additional counts by information, one for unlawful use of weapons and one for possession of a firearm without the requisite FOID card, after defendant testified at the motion to suppress. This argument also is without merit. Information known at the time of defendant’s arrest and subsequent charge by information with unlawful possession of controlled substance with the intent to deliver was such that defendant eventually could have been charged on all counts. The timing of the amendment of the information does not in any way lead to the conclusion that but for defendant’s testimony at the motion to suppress hearing he would not have been charged with the two additional counts. As the State notes, under section 111 — 2(f) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1991, ch. 38, par. lll-2(f) (now 725 ILCS 5/lll-2(f) (West 1992))), a defendant may be prosecuted for all offenses arising from the same transaction or conduct, even though the complaint or complaints filed after the preliminary hearing or waiver of preliminary hearing charged only one or some of the offenses arising from that transaction or conduct. Defendant herein waived preliminary hearing, and the offenses charged in the amended information arose from the same conduct as that which gave rise to the first information. Therefore, no prejudice accrued to defendant.

Defendant also contends on appeal that because he and codefendant Boyd were represented by the same attorney, he was denied his right to effective assistance of counsel. Defendant asserts defense counsel was prevented from presenting the best defense for him because of his obligations to his codefendant, Boyd. Defendant believes that their defenses were antagonistic, and had counsel not represented both defendants, he could have argued that Boyd was the person who possessed the crack cocaine.

A criminal defendant is guaranteed the right to effective assistance of counsel under the sixth amendment. (Cuyler v. Sullivan (1980), 446 U.S. 335, 343, 64 L. Ed. 2d 333, 343, 100 S. Ct. 1708, 1715.) The right to effective assistance of counsel mandated by the sixth amendment “entitles a criminal defendant to the undivided loyalty of counsel, free from conflicting interests or inconsistent obligations.” (People v. Thomas (1989), 131 Ill. 2d 104, 111, 545 N.E.2d 654, 656.) Our supreme court found in People v. Spreitzer (1988), 123 Ill. 2d 1, 15, 525 N.E.2d 30, 35, that a per se conflict exists when defense counsel is tied to a person or entity, either another client, an employer, or counsel’s own previous commitment, which would benefit from an unfavorable verdict for the defendant. The tie might affect subliminally counsel’s performance in ways difficult to detect and demonstrate or subject the attorney at a later point in time to charges that his representation of the defendant was not completely faithful. (Spreitzer, 123 Ill. 2d at 15, 525 N.E.2d at 35.) Prejudice is presumed where a per se conflict exists and in those cases where a conflict is brought to the attention of the trial court at an early stage in the proceedings. (Spreitzer, 123 Ill. 2d at 18, 525 N.E.2d at 35.) The per se standard is not applicable where a defendant alleges ineffective assistance of counsel because of conflicts arising from joint representation of codefendants, however. (People v. Washington (1984), 101 Ill. 2d 104, 112, 461 N.E.2d 393, 397; People v. Howard (1988), 166 Ill. App. 3d 328, 332-33, 519 N.E.2d 982, 984.) In the absence of a per se conflict, the defendant has the burden of showing that an actual conflict of interest was manifested at trial through representation of codefendants by a single attorney. (People v. Vriner (1978), 74 Ill. 2d 329, 341, 385 N.E.2d 671, 676.) In order for a reviewing court to reverse a conviction, the defendant must show the conflict had an adverse effect on counsel’s performance. (People v. Holmes (1990), 141 Ill. 2d 204, 219-20, 565 N.E.2d 950, 956.) “Actual” conflicts of interest have been found in joint trials where the same attorney represented two codefendants with antagonistic defenses (People v. Martinez (1982), 104 Ill. App. 3d 990, 992, 433 N.E.2d 981, 983); where a defendant’s trial testimony was antagonistic to the interests of his codefendant such that the defendant became a witness against his codefendant (People v. Taylor (1988), 165 Ill. App. 3d 1016, 1021, 520 N.E.2d 907, 912); where an attorney representing co-defendants succeeded in getting fingerprint evidence admitted which tended to exculpate one defendant by incriminating the other (People v. Echols (1978), 74 Ill. 2d 319, 325, 385 N.E.2d 644, 648); and where the credibility of codefendants represented by the same attorney was called into question and that credibility could not be restored without proving that at least one or the other codefendant was lying (People v. Pico (1987), 161 Ill. App. 3d 225, 231, 514 N.E.2d 224, 228). It does not create a per se conflict of interest to jointly represent two defendants where an alternative defense strategy might help one defendant at the expense of another. (People v. Owens (1987), 151 Ill. App. 3d 1043, 1048, 504 N.E.2d 186, 190.) The mere possibility that one strategy available to defense counsel would have helped one defendant at the expense of another does not create hostility between the interests of criminal codefendants. (People v. Sanders (1991), 209 Ill. App. 3d 366, 375, 568 N.E.2d 200, 206.) A positive basis must be found for concluding that an actual conflict of interest exists, rather than a mere showing that an alternative strategy existed such as asserting that defendant herein was unaware of Boyd’s possession of the cocaine and did not possess it himself. See Sanders, 209 Ill. App. 3d at 375, 568 N.E.2d at 206; People v. James (1992), 233 Ill. App. 3d 963, 973, 599 N.E.2d 960, 967.

Defense counsel clearly proceeded on a defense strategy that sought to attribute the presence of the crack cocaine in Ms. Heard’s apartment to Ms. Heard, her live-in companion, or visitors to the apartment, a logical ploy given the State’s reliance on an accountability theory. In the absence of a showing that an actual conflict existed which had an adverse effect on counsel’s performance, defendant’s claim of ineffective assistance of counsel is without merit.

Defendant next contends the trial court erred in denying his motion for mistrial based on a communication between an employee of the State’s Attorney’s office and a juror. Defendant asserts this communication prejudiced him because “implicit in the exchange between these individuals was a quid pro quo.”

One of the jurors asked Carolyn Butcher, of the State’s Attorney’s office, what she might do to help her daughter, who had been a victim of a sexual assault about a year prior to defendant’s trial and was having nightmares. She also apparently told Ms. Butcher that the sister of the defendant in the sexual assault case had contacted her. Ms. Butcher told the juror that she should obtain counseling for her daughter and that the sister of the defendant in the assault case should contact Ms. Butcher if she had any questions regarding her relative’s case. Ms. Butcher testified, out of the presence of the jury, that there was no discussion of the instant prosecution. The trial court found no prejudice had accrued to defendant and accordingly denied defendant’s motion for mistrial.

The quid pro quo envisioned by defendant seems to be that in exchange for information about obtaining counseling for her daughter and advice on how to handle the contact by the sexual assault defendant’s sister, the juror would return a verdict favorable to the State. Ms. Butcher stated, however, that she had not offered to help the juror obtain counseling for her daughter. When defense counsel was offered the opportunity to question the juror, he declined to do so, based on his belief that Ms. Butcher had been honest in her answers.

While any communication with a juror during trial about a matter pending before the jury is deemed presumptively prejudicial to a defendant’s right to a fair trial (People v. Mitchell (1992), 152 Ill. 2d 274, 341, 604 N.E.2d 877, 910), the presumption of prejudice is not conclusive, and a verdict will not be set aside when it is obvious that no prejudice resulted from the communication. (People v. Harris (1988), 123 Ill. 2d 113, 132-33, 526 N.E.2d 335, 342.) Ms. Butcher specifically stated that no discussion of the instant case took place. The trial court determined the contact between Ms. Butcher and. the juror was not prejudicial to defendant, and defense counsel obviously agreed. We cannot say the trial court abused its discretion in this instance.

Defendant’s final contention on appeal is that the trial court erred in imposing a fine of $10,000 without making a determination as to defendant’s ability to pay such a fine. Because defendant’s conviction for unlawful delivery of a controlled substance with intent to deliver has been vacated, we need not discuss this point further.

For the foregoing reasons, we reverse defendant’s conviction and sentence for unlawful possession of a controlled substance with the intent to deliver. Pursuant to our authority under Supreme Court Rule 615(b) (134 Ill. 2d R. 615(b)), we enter judgment for the lesser offense of possession of a controlled substance (cocaine) and remand to the circuit court of Alexander County for a new sentencing hearing on the conviction for possession of cocaine. We otherwise affirm all other convictions and sentences imposed on defendant.

Affirmed in part; reversed in part, judgment entered, and remanded.

GOLDENHERSH, J., concurs.

JUSTICE WELCH,

concurring in part and dissenting in part:

I concur in all aspects of the majority’s opinion except its finding that defendant was not proved guilty beyond a reasonable doubt of possession with intent to deliver. The majority finds that there is insufficient evidence to prove that defendant had the requisite intent to deliver the 4.07 grams of crack cocaine which he possessed. I cannot agree.

The evidence indicates that 4.07 grams of crack cocaine constitute approximately 40 doses, which is a larger amount of the drug than would normally be possessed by a drug addict for personal consumption. This amount is sufficient to provide an individual user with four to five weeks’ worth of the drug. Each dose of the drug sells for $20. At the time of his arrest, defendant was in possession of $860 in $20 bills. He explained that he carried these $20 bills for convenience because vendors did not like to change larger bills. He also testified that the $20 bills were income from a cleaning service which he and his wife operated in northern Illinois. The jury apparently did not find this to be credible and neither do I.

As the majority points out, it is the province of the jury to weigh witness credibility and to resolve conflicts or inconsistencies in the testimony (People v. Phillips (1989), 127 Ill. 2d 499, 514, 538 N.E.2d 500, 503), and we will not reverse a conviction unless the evidence is so improbable as to warrant a reasonable doubt of the defendant’s guilt. (People v. Eyler (1989), 133 Ill. 2d 173, 191, 549 N.E.2d 268, 276.) An inference that the $20 bills came from the sale of doses of crack cocaine is quite reasonable in light of the testimony at trial that a single dose of the drug sells for $20. After viewing the evidence in the light most favorable to the prosecution, as we are bound to do, I cannot agree with the majority that no rational trier of fact could have found the elements of this crime beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.) I would have affirmed the defendant’s conviction for unlawful possession of a controlled substance with intent to deliver.


author: PRESIDING JUSTICE CHAPMAN

text:
    JEFFREY LOOMIS, Plaintiff-Appellee, v. GRANNY'S ROCKER NITE CLUB, Defendant-Appellant.
    Fifth District
    No. 5 — 92—0705
    Opinion filed September 22, 1993.

      Theodore J. Williams, Jr., Gary L. Rutledge, and Andrew B. Mayfield, all of Armstrong, Teasdale, Schlafly & Davis, of St. Louis, Missouri, for appellant.
    David Hesi, of Wiseman, Shaikewitz, McGivern, Wahl, Flavin & Hesi, P.C., of Alton, for appellee.
   PRESIDING JUSTICE CHAPMAN

delivered the opinion of the court:

Soon after Granny’s Rocker Nite Club (Granny’s Rocker) opened in the mid-1980’s, it began having a weekly “fanny” contest, which involves male and female volunteer contestants competing for cash prizes by dancing on the dance floor. The audience is the judge of the contest. While attending the fanny contest on April 4, 1990, plaintiff, Jeffrey Loomis, got into a fight with another patron. During the altercation Loomis’ right ear was bitten and tom. Loomis was hospitalized and surgery was performed to repair his ear.

Loomis’ claim against Granny’s Rocker had two counts, one based on the Illinois Dramshop Act (Ill. Rev. Stat. 1989, ch. 43, par. 135) and one based on negligence. The jury found for the defendant on the dramshop count, but it found that Granny’s Rocker was negligent in failing to have adequate security to stop a physical altercation on the nights of the fanny contests when it knew or should have known that such contests would result in a large and rowdy group of patrons. Granny’s Rocker appeals. We affirm.

In order to recover under a negligence theory, a plaintiff must offer evidence which establishes that the defendant owed a duty to the plaintiff, that the defendant breached the duty, and that the breach proximately caused the plaintiff’s injuries. (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 140, 554 N.E.2d 223, 226.) Whether a duty exists is a question of law to be determined by the court and depends on whether parties stood in such a relationship to one another that the law imposes an obligation on the defendant to act reasonably for the protection of the plaintiff. (Gouge v. Central Illinois Public Service Co. (1991), 144 Ill. 2d 535, 542, 582 N.E.2d 108, 112.) In determining whether a duty exists in a particular case, a court must weigh the foreseeability of the injury, the likelihood of the injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden on the defendant. Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 525, 513 N.E.2d 387, 396.

The testimony at trial was as follows. Bob Rollins, owner and manager of Granny’s Rocker, testified that the fanny contest has been a weekly event for six years. When asked what the contestants are permitted to do during the fanny contest, he explained: “[They can do] basically whatever they want to do. They cannot — there is no nudity. We don’t allow G-strings or that sort of thing. No total nudity. A guy can take off his shirt. Some people will not take off anything. Some people will take off down to their underwear.” Rollins testified that the fanny contest is a promotion “to try to create more business during the weekdays.” He testified that on the night of the incident Granny’s Rocker employed three bartenders, a front door man, a back door man, a disk jockey, and approximately four security guards. Granny’s Rocker employs the same number of people on Friday and Saturday nights, but on Tuesdays and Thursdays there are two less bartenders and two less security personnel.

Jeffrey Loomis testified that he was 19 years old at the time of the incident, which was the first time he had been in Granny’s Rocker. Loomis and four of his friends were at Granny’s Rocker 1½ hours before the fanny contest, during which time Loomis had a sip of a gin and tonic and a few glasses of beer. He testified that after the winner of the fanny contest was announced, she walked within six feet of him. Loomis testifiéd that everyone in the area was commenting, “We vote for you, number five” and “You’re hot.” After the girl walked past, Loomis was tapped on the shoulder by an unidentified man who said, “Let my old lady through.” Loomis testified that he tried to calm the man, but the man pushed him and then started punching him in the face. The two men continued fighting, and Loomis’ ear was bitten in the altercation.

Scott Toth, a friend of Jeffrey Loomis, testified that on the night of the incident he met with Loomis and three other friends. They drank approximately a half case of beer and then went to Granny’s Rocker. Toth testified that there were approximately 200 to 300 people at Granny’s Rocker that night. Toth and his friends each paid a $3 admission fee. Once inside the bar, Toth purchased a pitcher of beer. He had three or four cups of beer himself but could not recall whether Loomis drank any beer from the pitcher. Toth testified that he and his friends watched the fanny contest, and after it was over one of the female contestants walked by their table. No one touched the girl, but Loomis commented to her, “Nice job.” With that a man came from behind and pushed Loomis. Toth had not noticed the man up until this time and had not seen whether Loomis had had any contact with the man any time earlier that evening. Toth testified that Loomis turned to the man and told him that he was there to have a good time and did not want to start any trouble. With that the man punched Loomis. Loomis tried to tackle or grab the man’s arms without swinging at him. The two men began pushing and shoving and knocked over a foosball table. Toth testified that from the time the two began fighting until they knocked over a table, approximately three or four minutes had elapsed, and no one tried to quell the confrontation during that time. Finally, Danny Glavin, one of Toth’s friends, grabbed Loomis and took him outside. Toth testified that in addition to the incident between Loomis and the unidentified man, he observed approximately seven other people fighting. He did not recall seeing any security personnel in the vicinity of the fighting.

Greg Toth, another of Loomis’ friends, testified that during the fanny contest he and his friends cheered for contestant number five. After the contest she walked past Loomis, and Loomis said something like, “I voted for you.” Toth testified that a man approached Loomis and the two started arguing. Loomis tried to calm the man, but the man started throwing punches at him. The two fought for seven to nine minutes until two Granny’s Rocker employees started evicting people. Toth testified that he is not certain whether the employees broke up the fight or whether Loomis and the unidentified man simply quit fighting.

Jeffrey Loomis’ friend, Jennifer McFall, testified that she was with a girl friend at Granny’s Rocker the night of the incident. After the fanny contest she heard names being called and saw someone punch Danny Glavin. She then turned and saw Jeffrey Loomis thrown against the foosball table and an unidentified man climb on top of him and bite his ear. McFall testified: “I stood there for awhile just shocked, then ran to the back of the bar to grab some help because no one — it took them awhile to get there before I seen [sic] anybody actually come up to help the [sic] fight. I ran to the back of the bar and I yelled at two of the back bouncers to get some help up there, and that had been two, three, maybe four minutes, the fight had been going on, so I finally ran back there and grabbed somebody.” She testified that it was so crowded at Granny’s Rocker that night that it took her a while to get back and look for the security personnel. She testified that it took three or four security personnel to stop the fight. McFall further testified that before the incident, she frequented Granny’s Rocker approximately two or three times a week. She had seen the fanny contest approximately 10 to 15 times. She opined that the crowd at Granny’s Rocker was rowdiest by far on Wednesday nights and that the fanny contest seemed to spawn rowdiness.

Kimberly Ellis, a friend of Jeffrey Loomis, testified that she too was a frequent patron of Granny’s Rocker. She testified that compared to the rest of the week, Wednesday nights are “extremely crowded, extremely rough crowd, a lot of drunk people, way too many people in the establishment.” Ellis testified that she witnessed spats between patrons, occasional punches, and pushing and shoving on previous Wednesday evenings at Granny’s Rocker. She testified that the fanny contest seemed to be the focus of this activity.

Daniel Glavin, another friend of plaintiff’s, testified that after the fanny contest one of the contestants walked past them, and Loomis said something like, “We were rooting for you” or “Nice job.” Glavin testified that Loomis did not touch the girl. An unidentified man came over to Loomis and said “Leave the girl alone.” Loomis put his arm around the man and said, “I don’t have a problem with you.” The man put his beer down and punched Loomis in the face. Glavin described the fight much as Scott Toth described it. Glavin testified that from the time the first punch was thrown until the time Loomis headed outside approximately five to seven minutes elapsed. During that time security personnel were not involved in the confrontation.

Denzel Whitehead testified that he and a friend were at Granny’s Rocker the night of the incident. He watched a contestant from the fanny contest walk past the plaintiff, and the plaintiff put his arm around her. Whitehead testified: “I seen what was going on so I stood up on a chair and told him not to mess with her because this guy over here is going to hurt you, and by then the other guy was already there and he pushed him, and that’s when the other guy grabbed him.”

The foregoing review of the record discloses that there was evidence that Wednesday nights at Granny’s Rocker are particularly crowded and that a rowdy crowd is attracted to or developed by the fanny contest. The length of the fight was estimated at from five to nine minutes. Kimberly Ellis testified as to the crowded conditions of the establishment. Jennifer McFall confirmed that Granny’s Rocker was crowded that night and that it took her some time to run to the opposite end of the establishment in her attempt to get help from security. No evidence was presented as to the placement of security personnel or of any actions taken by personnel once the altercation began. In fact, there was evidence that security never did get involved in stopping the altercation. Consequently, evidence was presented that the altercation was reasonably foreseeable by Granny’s Rocker and that defendant could have prevented it or could have at least interfered in the altercation prior to Loomis sustaining the injuries to his ear.

A possessor of land who holds it open to the public is under a duty to the members of the public who enter in response to his invitation to protect them against unreasonable risk of physical harm. (Restatement (Second) of Torts §314A (1965); Hayes v. O’Donnell (1979), 76 Ill. App. 3d 695, 395 N.E.2d 184; Smith v. 601 Liquors, Inc. (1968), 101 Ill. App. 2d 306, 243 N.E.2d 367.) It is our opinion, therefore, that the trial court did not err by finding that defendant owed a duty to protect the plaintiff from assault by a third party.

Granny’s Rocker also argues that the jury’s verdict is against the manifest weight of the evidence. In support of this claim defendant argues that the evidence establishes that it acted reasonably given the circumstances that were known, or should have been known, by the defendant at the time of plaintiff’s injury. It is axiomatic that unless a jury verdict is unreasonable, arbitrary, or not supported by the evidence it will not be disturbed on review. (Swader v. Golden Rule Insurance Co. (1990), 203 Ill. App. 3d 697, 702, 561 N.E.2d 99, 102; Young v. City of Centreville (1988), 169 Ill. App. 3d 166, 178, 523 N.E.2d 621, 628.) Weighing the evidence and the credibility of the witnesses and resolving apparent conflicts are functions of the trier of fact with which we will not interfere. Swader, 203 Ill. App. 3d at 702, 561 N.E.2d at 102.

According to the evidence, the fanny contest drew a rowdy crowd. The contest itself spawned occasional punches and pushing and shoving among patrons. The owner and manager of the establishment testified that the purpose of the contest is to create more business during Wednesday evenings. At times it was so crowded that there was standing room only. The evening of the incident at bar was no exception. One witness testified that there were 200 to 300 people at Granny’s Rocker that night. While Granny’s Rocker employs the same number of bouncers on Wednesday night as are employed on the weekend, no fanny contest is held on the weekend. The fanny contest itself draws a large and rowdy crowd. Drinking of alcoholic beverages by underage patrons could contribute to the rowdiness. Moreover, evidence was presented that, given the large crowd, access to security personnel was difficult, and security personnel did not even assist in the altercation until after several minutes had passed. Given the evidence, we have not found, and defendant has not cited, any legitimate basis for disturbing the jury’s verdict that defendant should be held liable.

For the foregoing reasons, the judgment of the circuit court of Madison County is affirmed.

Affirmed.

MAAG and WELCH, JJ., concur.


author: JUSTICE MAAG

text:
    RONDA HALL, Plaintiff-Appellant, v. ION DUMITRU, Defendant-Appellee.
    Fifth District
    No. 5 — 92—0096
    Opinion filed September 22, 1993.

      Ronald A. Roth and R.D. Robinson, both of Bernard & Davidson, of Granite City, for appellant.
    Richard M. Roessler and Thomas R. Peters, both of Gundlach, Lee, Eggmann, Boyle & Roessler, of Belleville, for appellee.
   JUSTICE MAAG

delivered the opinion of the court:

This case involves a claim of alleged medical malpractice. The plaintiff, Ronda Hall, claimed that the defendant, Dr. Ion Dumitru, performed a tubal ligation that was unsuccessful. Due to the alleged ineffectiveness of the procedure, the plaintiff later became pregnant. She sought damages related to her subsequent pregnancy. The jury rendered a verdict in favor of the defendant, the plaintiff’s post-trial motion was denied, and plaintiff has appealed claiming error in evidentiary rulings made by the court. Because of the nature of the issues raised, we will describe in detail the medical procedures performed.

On April 29, 1987, the plaintiff, Ronda Hall, sought the services of the defendant, Ion Dumitru, M.D., an obstetrician-gynecologist. On that date she complained of pain, menstrual abnormalities, and panic anxiety crises related to petit mal epilepsy. The plaintiff tested positive for pregnancy.

Later, on June 15, 1987, the plaintiff saw the defendant for complaints of vaginal bleeding. On June 18, 1987, testing ordered by the defendant showed that plaintiff had a blighted ovum. Upon the defendant’s recommendation, the plaintiff agreed to have a dilation and curettage (D & C) and also authorized the performance of a tubal ligation. She was informed that the procedure would prevent further pregnancies by irreversibly obstructing her fallopian tubes.

The defendant performed the D & C on June 24, 1987, as well as the tubal ligation.

In performing the tubal ligation, plaintiff was placed under general anesthetic, an incision was made in her abdomen below her naval, and a needle was inserted into the abdomen. The defendant then injected carbon dioxide through the needle to inflate the abdomen, thus allowing more working room. This was necessary because when performing a tubal ligation there is a risk of injury to the bowel, aorta, or vena cava. A tube was then inserted, and through the tube a laparoscope was passed into her abdomen. The defendant used a grasper to apply small fallope rings around the plaintiff’s fallopian tubes. The defendant placed one ring around plaintiff’s right fallopian tube and two rings around her left fallopian tube.

The defendant testified that the plaintiff wanted the tubal ligation done at the same time as the D & C because she was afraid of being put to sleep and if the procedures were done separately she would have to undergo general anesthesia twice. If the two procedures were combined, only one general anesthesia would be required.

The defendant testified that while performing the tubal ligation, he lacerated one of the plaintiff’s fallopian tubes. Such a laceration could cause the procedure to be ineffective. Consequently, on July 1, 1987, he offered to do a second tubal ligation free of charge. According to the defendant, the plaintiff refused the offer of a second tubal ligation.

In April 1988 the plaintiff was diagnosed as pregnant. She delivered her child in December of 1988 and gave the child up for adoption due to her economic circumstances. Dr. Sun, plaintiff’s subsequent obstetrician-gynecologist, advised her after the birth to have another tubal ligation performed because of the heightened risk of an ectopic or tubal pregnancy related to the failure of the original tubal ligation. This recommendation was based upon the fact that ectopic or tubal pregnancies can be life threatening. The plaintiff signed consent forms to have the second ligation surgery performed in January 1989 then rescheduled it for March of 1990. She failed or refused to go forward with the second ligation surgery.

In contrast to defendant’s testimony, the plaintiff testified that the defendant never advised her at any time that he had lacerated her fallopian tube during the June 24, 1987, tubal ligation. She denied that he had offered her a second ligation surgery free of charge. She further testified that she declined to have the procedure performed again as recommended by Dr. Sun, because she feared a second surgery also would be a failure.

In early 1991 after this action had been filed, the plaintiff developed a potentially life-threatening ectopic or tubal pregnancy which required surgery and a three-day hospital stay. At trial she claimed damages for pain and suffering due to the unwanted 1988 pregnancy and for the March 1991 ectopic pregnancy and resulting surgery.

Prior to trial, plaintiff filed a motion in limine seeking an order barring argument or testimony “[t]hat [plaintiff] could have, or should have, mitigated her damages by electing another tubal ligation procedure subsequent to the determination that she had become pregnant after the June 24, 1987 tubal ligation.” The trial court denied plaintiff’s motion in limine, relying on the fact that plaintiff did not exhibit or manifest any fear of the tubal ligation procedure and that she did not express any fear to Dr. Sun. The trial court indicated that it would allow evidence regarding the medical advice given plaintiff and plaintiff’s reasons for not having another tubal ligation surgery. The record indicates that the trial court wanted the jury to decide whether it was reasonable for plaintiff not to follow the medical advice given to her by Dr. Sun and allegedly by defendant to have a second ligation surgery

During the trial, the jury heard evidence of the plaintiff’s failure or refusal to undergo a second ligation surgery on four occasions: first, during the cross-examination of Dr. Sun; second, during the cross-examination of the plaintiff; third, during the direct examination of defendant; and finally, from defendant’s expert. The defendant’s counsel argued to the jury that the plaintiff’s failure or refusal to undergo the second surgery was an unreasonable failure to mitigate her damages.

On November 21, 1991, the jury, after nine hours of deliberations, returned a verdict in favor of the defendant and against the plaintiff. The sole issue raised on appeal is whether the trial court’s admission of evidence and argument that plaintiff could have mitigated her damages by undergoing surgery was erroneous and prejudicial to plaintiff warranting a new trial.

The jury received Illinois Pattern Jury Instructions, Civil, No. 105.08 (3d ed. 1992), which provides:

“A patient must exercise ordinary care to seek treatment and follow reasonable medical advice. A physician is not liable for the consequences of a patient’s failure to do so. A patient’s failure to use ordinary care in obtaining treatment or in following instructions does not absolve the physician from any damages resulting from the physician’s negligence. It only absolves the physician from any damages caused by the patient’s failure to exercise ordinary care to seek treatment and follow reasonable medical advice.” Illinois Pattern Jury Instructions, Civil, No. 105.08 (3d ed. 1992) (hereinafter IPI Civil 3d).

The committee notes to IPI Civil 3d No. 105.08 refer to IPI Civil 3d No. 33.01. (IPI Civil 3d No. 105.08, Comment, at 150 — 20.) That instruction states:

“In fixing the amount of money which will reasonably and fairly compensate the plaintiff, you are to consider that an injured person must exercise ordinary care to obtain medical treatment. Damages proximately caused by a failure to exercise such care cannot be recovered.” IPI Civil 3d No. 33.01.

The committee comments to IPI Civil 3d No. 33.01 state: “No instruction should be given with reference to the plaintiff’s duty to submit to major surgical operations. Whether the plaintiff is to undergo a serious operation is a matter for him to decide.” (Emphasis added.) (IPI Civil 3d No. 33.01, Comment, at 33 — 3.) Relying upon this comment and Rosenstein v. Chicago Transit Authority (1973), 12 Ill. App. 3d 1089, 299 N.E.2d 396, this court has previously held that “[i]t is clear that an injured person has no duty to undergo surgery to mitigate his damages.” Montgomery v. Terminal R.R. Association (1979), 73 Ill. App. 3d 650, 655, 392 N.E.2d 77, 81.

In Montgomery, the plaintiff suffered a back injury when the train engine he occupied was struck by a runaway boxcar. The trial court heard the plaintiff’s in camera testimony that surgery had been recommended to improve his condition and that the plaintiff rejected surgery on religious grounds. We affirmed the trial court’s refusal to admit evidence regarding the surgery or Montgomery’s reasons for refusing it, specifically holding that an injured person has no duty to undergo surgery to mitigate damages.

In the case before us, the trial court relied upon Corlett v. Caserta (1990), 204 Ill. App. 3d 403, 562 N.E.2d 257, and declined to follow our holding in Montgomery. Defendant argues that Corlett is controlling. We disagree.

The court in Corlett outlined various factors to be weighed, which included “the gravity of plaintiff’s original [condition], the intrusiveness of the proposed medical procedure and its attendant risk of complications, the feasibility of alternate medical procedures, the expense of the proposed medical treatment, the likelihood of increased recovery if the proposed medical procedure had been accepted by the plaintiff, and other relevant circumstances.” Corlett, 204 Ill. App. 3d at 414, 562 N.E.2d at 263.

Corlett is distinguishable from Montgomery and the instant case. Corlett did not involve the issue of plaintiff’s duty to undergo surgery to mitigate damages. Rather, the central issue in Corlett concerned that plaintiff’s refusal to receive a blood transfusion on religious grounds.

In Corlett, the court analyzed the duty to submit to reasonable medical treatment in terms of mitigation of damages and comparative fault and from the standpoint of assumption of the risk. The court then concluded, “[W]hen a physician’s negligent acts causes [sic] a patient to suffer life-threatening injuries, and the patient exercises his fundamental and religious right to refuse a reasonable lifesaving medical procedure and subsequently dies, the patient’s estate must bear a proportionate share of tort liability for the patient’s wrongful death, to the extent that the patient’s death was proximately caused by the patient’s refusal of the reasonable lifesaving treatment.” (Corlett, 204 Ill. App. 3d at 413, 562 N.E.2d at 263.) The duty of the patient under a Corlett analysis is to submit to reasonable medical treatment. A failure to submit will not relieve the tortfeasor of liability but will diminish the damages recoverable by the plaintiff to the extent that submitting to treatment would have reduced the injury. This, however, is only a general rule.

An exception to this general rule, which is recognized in Corlett, is that, while a patient has a duty to accept reasonable medical treatment, there is no duty to undergo surgery to mitigate the damages caused by a tortfeasor’s negligence. This exception is recognized in the committee comments to IPI Civil 3d No. 33.01 and by most courts (see, e.g., Montgomery, 73 Ill. App. 3d 650, 392 N.E.2d 77) which have considered the issue. This exception has been overlooked on occasion. See Khatib v. McDonald (1980), 87 Ill. App. 3d 1087, 410 N.E.2d 266 (affirming the trial court’s instruction (IPI Civil 3d No. 33.01) on failure to mitigate due to plaintiff's refusal of a mylegram and laminectomy without mention of Montgomery or the committee comments to that instruction).

Properly stated, we believe that the rule regarding mitigation of damages in relation to suggested medical treatment is as follows: A patient has a duty to submit to reasonable medical care and treatment intended to improve the patient’s condition and reduce or eliminate the consequences of the defendant’s tortious act. This duty exists in both the area of medical malpractice as well as in the area of injuries caused in a nonmedical malpractice setting. An exception to this general rule exists with respect to surgical procedures as well as nonsurgical procedures which present a risk of enhanced or additional injury. We believe that use of the term major surgery or serious surgery to describe the exception leads only to confusion and debate. These undefined terms must be analyzed in light of the interest being protected: that is, the right to forego potentially injurious procedures. A more useful approach, and we believe the correct one, is to ask whether a recognized risk is associated with the proposed treatment. The risk may or may not be common. But, nevertheless, if the proposed treatment could result in an aggravation of the existing condition or the development of an additional condition of ill health, or if the prospect for improved health is slight, then there should be no duty to undergo the treatment. If the risk is clearly remote, the exception should not apply. But the risk need not be significant or even probable in order to trigger the exception.

Once the grounds for the exception are established, it should be unnecessary for the patient to articulate the particular reason for choosing to forego the treatment since this is an objective test not a subjective one. It is not the place of the court or the jury to evaluate a patient’s reasons for declining surgery or treatment, if the risks are recognized.

As is the case with many evidentiary rulings a court must make, this analysis involves a mixed question of law and fact. However, since in the final analysis it is a “duty” question, the resolution of the issue is for the court as a question of law.

If the court determines that the exception applies, then no evidence or argument should be allowed regarding the fact that the patient declined the proposed treatment, because in such a case there would be no duty to undergo the treatment. Naturally, under such circumstances there should be no argument or instruction on the failure to mitigate damages with respect to the treatment that was refused.

The trial court in the instant case found that a tubal ligation is a minor surgery. We disagree. The record indicates that the procedure is performed under a general anesthetic, which alone has attendant risks which can be potentially harmful and life threatening. The procedure itself involves the use of a sharp instrument in close proximity to vital organs necessitating the use of carbon dioxide to inflate the abdomen. It is apparent from the record that a tubal ligation surgery involves risks to a woman’s life or member. (Florcvzak v. Industrial Comm’n (1942), 381 Ill. 120, 44 N.E.2d 836.) Therefore, the plaintiff was under no duty to undergo the surgery to mitigate her damages, and the evidence on this issue was improperly admitted, and the argument was improperly allowed.

Lastly, defendant argues that because plaintiff’s allegations of error are directed to damages, the jury’s verdict on liability is not affected. Although it is true that errors concerning the extent of damages are generally not a basis for reversal where the jury finds the defendant not liable, in Mulvey v. Illinois Bell Telephone Co. (1973), 53 Ill. 2d 591, 599-600, 294 N.E.2d 689, 694, our supreme court recognized “there may be cases in which errors which go to the question of damages may be so pervasive and prejudicial as to create the likelihood that they may have affected a jury’s decision on the issue of liability.”

Such is the case before us. Plaintiff argues that the admission of evidence of the medical recommendation that plaintiff undergo another tubal ligation shifted the jury’s attention away from the separate question of defendant’s liability. Because of the emphasis on the proposed second ligation surgery, the jury might easily have begun to perceive plaintiff as the wrongdoer. Defendant argues that the admission of evidence of the medical recommendations made to plaintiff could not have confused the jury. We disagree. It would not be unreasonable or surprising that a juror would take the duty improperly imposed on plaintiff to suffer the second ligation surgery and relate it directly to causation and fault. It would not be unreasonable for a jury to believe that but for plaintiff’s failure to have the second ligation surgery performed plaintiff would not have experienced the unwanted 1988 pregnancy or the ectopic pregnancy of 1990, thereby completely shifting the jury’s attention away from the defendant’s alleged malpractice. We believe that this error with respect to damages was so pervasive and prejudicial as to have affected the jury’s decision on liability.

For the foregoing reasons, the judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

CHAPMAN, P.J., and GOLDENHERSH, J., concur.