author: PRESIDING JUSTICE GREIMAN

text:
    WILLIAM BOWE et al., Indiv. and as Parents and Next Friends of Andrew Bowe, a Minor, Plaintiffs-Appellants., v. ABBOTT LABORATORIES, INC., et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1 — 91—1174
    Opinion filed December 16, 1992.

      Jeffrey M. Goldberg and James M. Geraghty, both of Jeffrey M. Goldberg & Associates, Ltd., of Chicago, and David W. Andich, of Rock Island, for appellants.
    Lord, Bissell & Brook, of Chicago (Hugh L. Moore, Hugh C. Griffin, and Margaret S. Hickey, of counsel), for appellee Abbott Laboratories.
    Bowles, Keating, Epsteen, Hering & Lowe, Chartered, of Chicago (Robert Epsteen, of counsel), for appellees E.R. Squibb & Sons, Inc., Olin Corp., and Olin Mathieson Chemical Corp.
    Wildman, Harrold, Allen & Dixon, of Chicago (Richard C. Bartelt and Richard C. Palmer, of counsel), and Shook, Hardy & Bacon, of Kansas City, Missouri (Stephen E. Scheve and James J. Stubblefield, of counsel), for appellee Eli Lilly & Company.
    Wildman, Harrold, Allen & Dixon, of Chicago (Richard C. Bartelt and Richard C. Palmer, of counsel), for appellees American Home Products Corporation, Ayerst Laboratories, Inc., Ayerst Laboratories, Inc., Division of American Home Products Corporation, Ayerst, McKenna & Harrison, Ltd., Ives Laboratories, Inc., and Ives Laboratories, Inc., Division of American Home Products Corporation.

      Baker & McKenzie, of Chicago (Francis D. Morrissey, Michael A. Pollard, and Mark L. Karasik, of counsel), for appellees Columbus Pharmacal Company, Philips Roxane, Inc., and Philips Roxane Laboratories, Inc.
    Sidley & Austin, of Chicago (Michael W. Davis, Barbara M. DeCoster, and Michael J. Suffern, of counsel), for appellees The Upjohn Company, Armour Pharmaceutical Company, Armour Laboratories, Inc., a division of Armour Pharmaceutical Company, and Armour Laboratories.
    Garretson & Santora, Ltd., of Chicago (Ian J. Lochridge, of counsel), for appellees Breon Laboratories, Winthrop Laboratories, Inc., and Sterling Drug Company.
    Mayer, Brown & Platt, of Chicago (Jennifer T. Ansbro, of counsel), for appellee CPC International, Inc.
    Johnson & Bell, Ltd., of Chicago (Thomas H. Fegan and Robert L. Nora, of counsel), for appellee Merck, Sharp & Dohme, Division of Merck & Company.
    Brinton & Fedota, of Chicago (Mark C. Fedota and Brian C. Rocca, of counsel), for appellee Schieffelin & Company.
    Pretzel & Stouffer, Chartered, of Chicago, for appellee Burroughs Wellcome Company.
   PRESIDING JUSTICE GREIMAN

delivered the opinion of the court:

Plaintiffs, William Bowe and Catherine Bowe, individually and as parents and next friends of Andrew Bowe, a minor, appeal the circuit court orders which dismissed their complaint with prejudice, denied their motion to file a first amended complaint, and denied their motion to reconsider these orders.

For the reasons which follow, we find that the trial court abused its discretion in denying plaintiffs an opportunity to amend their complaint.

Plaintiffs seek relief for injuries allegedly sustained as a result of exposure to diethylstilbestrol (DES). They filed their complaint against numerous (151) DES manufacturers and distributors, and set forth their claim as a negligence action under the theory of market share liability. After the Illinois Supreme Court rejected market share liability as a proper basis for identifying the tortfeasor in Smith v. Eli Lilly & Co. (1990), 137 Ill. 2d 222, 560 N.E.2d 324, plaintiffs attempted to file an amended complaint under the theory of alternative liability.

A fundamental element in a negligence or strict liability action is the burden placed upon the plaintiff to identify the defendant who caused the alleged harm or injury. The identification element of causation serves to assign blame to culpable parties and to limit the scope of potential liability. Smith, 137 Ill. 2d at 232-33.

The reoccurring problem in DES cases has been the inability of the plaintiffs to identify the particular DES manufacturer which produced the drug which caused their injuries to establish the causation-in-fact requirement in tort. The identification problem is exacerbated by the extended passage of time since the ingestion of the injury-producing DES, the unavailability of pertinent records, and the disappearance of DES-producing companies due to mergers, acquisitions, dissolution, and all the other reasons for going out of business. Consequently, courts throughout the country created certain exceptions to allow a plaintiff to shift to a defendant or a group of defendants the burden of proof or the burden of persuasion on this issue. The theories of market share liability and alternative liability are two exceptions advanced to overcome the difficulty, if not impossibility, of tracing and identifying the specific manufacturer of the injury-producing DES.

In essence, the theory of market share imposes liability on manufacturers which may have produced or marketed DES and apportions damages in some manner consistent with the manufacturer’s share of the market. The four States which have adopted some version of the market share liability theory (California, New York, Washington, and Wisconsin) do not agree on its application or the remedy. Smith, 137 Ill. 2d at 236-46.

The theory of alternative liability applies where two or more defendants act tortiously toward a plaintiff who, through no fault of her own, cannot identify which one of the joined defendants caused the injury. The burden of proof shifts to each defendant to prove his innocence. Smith, 137 Ill. 2d at 235.

The Smith court noted three distinctions between the theories of market share liability and alternative liability. First, the theories vary with regard to the defendants who must be joined. While alternative liability requires aU parties who could have been the cause of the plaintiff’s injuries to be joined as defendants, the various market share theories require the plaintiff to name as defendants either a substantial share of those in the market or only one manufacturer. Second, the policies underlying the burden shifting differ. In alternative liability, the burden shifting is considered equitable because the defendants are generally in a better position than the plaintiff to determine who caused the harm. Market share liability, on the other hand, shifts the burden to the defendants to prove their innocence without regard to who, if anyone, is in the better position to identify the culpable party. Third, the relationship between liability and culpability may differ. In alternative liability, each defendant was at least negligent toward the plaintiff, but with market share liability, some defendants are forced to bear part or all of the responsibility for the injury even though they may be innocent of wrongdoing towards the particular plaintiff. Smith, 137 Ill. 2d at 257-58.

On June 14, 1990, plaintiffs filed their initial complaint stating that the mother of plaintiff Catherine Bowe consumed DES while pregnant with Catherine Bowe and as a result of Catherine’s exposure to DES in útero, she developed an incompetent cervix. The son of Catherine Bowe, plaintiff Andrew Bowe, was born 14 weeks premature and suffered brain damage. The complaint alleges that the consumption of DES by Catherine’s mother caused Catherine to develop an incompetent cervix which, in turn, resulted in the premature birth of and brain damage to Andrew Bowe. The complaint sought damages for Catherine Bowe as a DES daughter and for Andrew Bowe as a DES grandchild.

On July 3, 1990, the Illinois Supreme Court rejected the application of market share liability in a DES case and reversed the appellate court opinion which had held otherwise. (Smith v. Eli Lilly & Co. (1988), 173 Ill. App. 3d 1, 527 N.E.2d 333, rev’d (1990), 137 Ill. 2d 222, 560 N.E.2d 324.) The plaintiffs in Smith moved for a rehearing.

While the petition for rehearing was pending in Smith, defendants in the present case filed various motions to dismiss plaintiffs’ complaint and for judgment on the pleadings on the grounds that the complaint failed to state a cause of action.

By agreed order dated September 20, 1990, the trial court continued all motions until the status of the pending petition for rehearing in the Smith case was determined.

On October 1, 1990, the Illinois Supreme Court denied the petition for a rehearing in the Smith case and issued a modified opinion which held fast to its original decision.

On November 5, 1990, the trial court in the present case entered an order to consolidate all the motions to dismiss and for judgment on the pleadings, set a briefing schedule, and continued the matter until December 3,1990, for status.

On December 3, 1990, following a hearing, the trial court entered an order which (1) granted, without prejudice, certain defendants’ motions to dismiss; (2) granted plaintiffs leave to file an amended complaint on or before January 7, 1991; (3) continued the case to February 8, 1991; and (4) provided that all defendants not named in the amended complaint would be dismissed with prejudice on February 8, 1991.

Plaintiffs did not file an amended complaint by January 7, 1991, but at the February 8, 1991, hearing, attempted to file their first amended complaint based on the alternative liability theory. The trial court refused to allow the first amended complaint to be filed and in considering whether to grant such leave heard argument as to the impact of Smith on the alternative liability theory. Neither the court nor defense counsel had even had an opportunity to examine the first amended complaint. Plaintiffs asked only that they be allowed to file their first amended complaint, a briefing schedule be established, and, in due time, a hearing. The trial court concluded that the Smith court had rejected the alternative liability theory and that the truncated hearing would be an efficient manner in which to dispose of plaintiffs’ motion for leave to file their first amended complaint and the defendants’ motions to dismiss that would have assuredly been filed.

Plaintiffs then filed a motion for reconsideration of the February 8, 1991, order which the trial court denied following a hearing on March 18, 1991.

Plaintiffs argue on appeal that (1) the trial court’s dismissal of their complaint with prejudice was premature because the basic issue in this case is to identify the drug manufacturer which caused plaintiffs’ injuries and plaintiffs have not yet had the opportunity to develop this information through discovery; (2) plaintiffs satisfied each element necessary, as enumerated in Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 586 N.E.2d 1211, to establish that the trial court abused its discretion in denying plaintiffs leave to file their first amended complaint; and (3) the law regarding the theory of alternative liability has not been resolved in Illinois (Wysocki v. Reed (1991), 222 Ill. App. 3d 268, 583 N.E.2d 1139) and has been accepted in Michigan (Abel v. Eli Lilly & Co. (1984), 418 Mich. 311, 343 N.W.2d 164).

In response, defendants contend that the trial court’s decisions were proper because (1) dismissal with prejudice was timely since plaintiffs failed to seek any discovery in the trial court other than the service of a subpoena duces tecum on the pharmacy that allegedly dispensed DES to Andrew Bowe’s grandmother and plaintiffs did not request a continuance for the purpose of conducting discovery; (2) plaintiffs’ original complaint alleging market share liability is fatally deficient under the Smith opinion; and (3) the alternative liability theory proposed by plaintiffs was rejected in the appellate court decision of Smith and thereafter foreclosed by the supreme court opinion in Smith.

There is a strong policy which favors an adequate and appropriate hearing of a litigant’s claim on the merits. (Meeker v. Payne (1981), 101 Ill. App. 3d 723, 727, 428 N.E.2d 614 (the trial court abused its discretion in dismissing plaintiff’s complaint with prejudice and denying the plaintiff an opportunity to amend).) In furtherance of this policy, it is well established that a cause of action should not be dismissed with prejudice unless it clearly appears that no set of facts can be proved under the pleading which would entitle the plaintiff to relief. People ex rel. Hartigan v. Moore (1986), 143 Ill. App. 3d 410, 413, 493 N.E.2d 85.

If, by amendment, a plaintiff can state a cause of action, a case should not be dismissed with prejudice on the pleadings. (Rudnick v. Vokaty (1980), 84 Ill. App. 3d 1003, 406 N.E.2d 105.) In Rudnick, the appellate court acknowledged that the plaintiff’s original complaint was insufficient and that the trial court properly granted the defendant’s motion to dismiss. However, the Rudnick court further held that the trial court’s decision to dismiss the plaintiff’s complaint with prejudice was premature and that the plaintiff should be given the opportunity to amend his complaint in an attempt to state a valid cause of action. Rudnick, 84 Ill. App. 3d at 1007-08.

In the case at bar, the trial court granted plaintiffs leave to file an additional complaint by January 7. We cannot imagine what interests intervened to deny plaintiffs that right notwithstanding their 30-day tardiness. Amendment of the complaint generally rests within the sound discretion of the trial court. Ruklick v. Julius Schmid, Inc. (1988), 169 Ill. App. 3d 1098, 1111, 523 N.E.2d 1208.

The Illinois Supreme Court established four factors to consider in determining whether the trial court abused that discretion: (1) whether the proposed amendment would cure the defective pleading; (2) whether other parties would sustain prejudice or surprise by virtue of the proposed amendment; (3) whether the proposed amendment is timely; and (4) whether previous opportunities to amend the pleading could be identified. (Loyola Academy, 146 Ill. 2d at 273.) In the present case, the dispute concerns the first enumerated factor, i.e., whether plaintiffs’ amended complaint predicated on alternative liability sufficiently cures the defect of previously relying on the rejected theory of market share liability.

Although the court may consider the efficacy of a claim in deciding whether or not to allow amendment (Marczak v. Drexel National Bank (1989), 186 Ill. App. 3d 640, 643, 542 N.E.2d 787), any doubt should be resolved in favor of the amendment (Deming v. Montgomery (1989), 180 Ill. App. 3d 527, 533, 536 N.E.2d 150 (the circuit court abused its discretion when it denied plaintiff’s motion to amend his pleadings to conform to the proof adduced at trial)).

Amendment should be liberally allowed to permit parties to fully present their causes of action. Morris v. City of Chicago (1985), 130 Ill. App. 3d 740, 746, 474 N.E.2d 1274 (the trial court improperly denied the plaintiff leave to amend where the trial court directed a verdict for defendant before the plaintiff had finished putting on his case); see also Marczak, 186 Ill. App. 3d at 643 (“[a] trial court’s power to allow amendments should be freely exercised in order that litigants may fully present their causes of action”).

In the present case, the trial court, in its December 1990 order, granted plaintiffs leave to file an amended complaint since Smith had rejected the theory of market share liability in a DES case. At the next scheduled hearing on February 8, 1991, plaintiffs attempted to file their amended complaint predicated on alternative liability, but the trial court clearly believed that Smith had barred an action based on the doctrine of alternative liability. The question for this court then becomes whether the theory of alternative liability has been foreclosed so as to render plaintiffs’ proposed amended complaint incapable of stating a cause of action.

The Smith opinion expressly states that “we [the supreme court] have before us only the narrow legal issue of whether to adopt market share liability in negligence and strict liability actions filed by a DES daughter.” (Smith, 137 Ill. 2d at 236.) Notwithstanding this statement, the court extensively discussed other theories which are exceptions to the traditional causation requirement in tort actions and observed that the alternative liability theory has been found inapplicable to DES cases by every court which has addressed the issue. (Smith, 137 Ill. 2d at 257.) However, the court then contrasted the theories of market share liability and alternative liability. Smith, 137 Ill. 2d at 257-58.

In a subsequent case, the First District Appellate Court found that the Smith decision does not provide any “clear expression of the views of the majority on the merits of alternative liability other than the fact that it lacks some of the flaws of market share liability.” (Wysocki, 222 Ill. App. 3d at 274.) In addition, the Wysocki court interpreted “the remarks of the dissenting justices [in Smith] to be expressions of approval of alternative liability.” (Wysocki, 222 Ill. App. 3d at 274.) The Wysocki court accepted the doctrine of alternative liability and found that it was applicable to the facts of its case where the potential products liability claim would be against two drug manufacturers.

In Wysocki, the decedent died while in a hospital from a reaction to the ingestion of a drug named heparin. The hospital purchased heparin from two manufacturers, Upjohn Company and Wyeth Laboratories. The plaintiff in Wysocki filed a products liability suit against the two drug manufacturers which the trial court dismissed with prejudice! On appeal, however, the Wysocki court adopted the alternative liability doctrine, expressly reserving the question of whether the rule should be applicable to more than two tortfeasors. Wysocki, 222 Ill. App. 3d at 279.

Even if, at first reading, Smith appears to lay to rest the theory of alternative liability, the Wysocki court returns vitality to it. Alternative liability is a viable theory in Illinois under the holding of Wysocki and thus plaintiffs in the present case should have been allowed to address their theory on the merits.

Wysocki involved two defendants and the court predicated its decision on the rule of alternative liability established in section 433B(3) of the Restatement (Second) of Torts, which provides for the inclusion of “two or more actors” where their conduct is tortious (Restatement (Second) of Torts §433B(3) (1965)). Wysocki, 222 Ill. App. 3d at 279 (“we hold that the Restatement rule of alternative liability is applicable to the facts alleged in this complaint”).

Acknowledging that problems might arise in claims involving more than two tortfeasors, the Wysocki court restricted the application of alternative liability to cases where all of the possible defendants are before the court (Wysocki, 222 Ill. App. 3d at 276) and reserved the question of its applicability to more than two tortfeasors (Wysocki, 222 Ill. App. 3d at 279).

In the present case, 151 defendants are named in plaintiffs’ amended complaint. With the commencement or completion of discovery, the number of defendants could conceivably be substantially reduced. Our holding does not decide whether or not plaintiffs’ complaint should ultimately be allowed to stand. Instead, we limit our finding to the issue of whether plaintiffs should have been allowed leave to amend their complaint after the theory of market share liability originally pled was rejected by the supreme court in Smith.

Since the theory of alternative liability has not yet been definitively resolved in Illinois, plaintiffs should have been allowed to file their first amended complaint and have a motion attacking its sufficiency heard in due course. Accordingly, we reverse the trial court’s orders dismissing plaintiffs’ complaint with prejudice and denying plaintiffs leave to amend, and remand this matter for proceedings consistent with this opinion.

Reversed and remanded.

TULLY and CERDA, JJ., concur.

       Under the theory established by the California Supreme Court in Sindell v. Abbott Laboratories (1980), 26 Cal. 3d 588, 607 P.2d 924, 163 Cal. Rptr. 132, the plaintiff must first join as defendants the manufacturers of a “substantial share” of the DES which her mother may have taken and prove a prima facie case on every element except identification of the direct tortfeasor. The burden of proof then shifts to defendants to demonstrate that they could not have manufactured the DES that caused the plaintiff’s injuries. Upon failure to meet this burden, the court holds each defendant liable for the proportion of the judgment represented by its share of that market. Liability under the Sindell rule is only several rather than joint and several. (Brown v. Superior Court (1988), 44 Cal. 3d 1049, 751 P.2d 470, 245 Cal. Rptr. 412.) The Washington Supreme Court in Martin v. Abbott Laboratories (1984), 102 Wash. 2d 581, 689 P.2d 368, adopted the “market share alternate liability” theory, which allows the plaintiff to bring suit against only one defendant. A company or companies unable to exculpate themselves become members of the plaintiff’s DBS market. Defendants are presumed and held liable on a pro rata basis unless and until they can prove their actual market share. The Wisconsin Supreme Court formulated the “risk contribution theory” in Collins v. Eli Lilly Co. (1984), 116 Wis. 2d 166, 342 N.W.2d 37, in which the plaintiff need only sue one drug company whether or not it constituted a substantial share of the market. The plaintiff must prove a prima facie case and then the burden again shifts to the defendant to prove by a preponderance of the evidence that it did not produce or market DBS during the relevant time period or in the relevant geographical market. If only one company is sued and it cannot exculpate itself, that sole defendant is liable for all the damages. Where multiple defendants are involved, damages are determined according to the jury’s assignment of liability under Wisconsin’s comparative negligence statute. New York developed a form of market share liability utilizing a national market in Hymowitz v. Eli Lilly & Co. (1989), 73 N.Y.2d 487, 539 N.E.2d 1069, 541 N.Y.S.2d 941, where a defendant can exculpate itself only through proof that it did not participate in the marketing of DBS for pregnancy use. Liability under the New York theory is several only and is not to be inflated if all the manufacturers are not joined.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES DOW, Defendant-Appellant.
    First District (1st Division)
    No. 1 — 90—1277
    Opinion filed December 21, 1992.

      Rita A. Fry, Public Defender, of Chicago (Denise R. Avant, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, William D. Carroll, and George J. Arnold, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant James Dow was charged by indictment with three counts of delivery of a controlled substance (see Ill. Rev. Stat. 1989, ch. 56½, par. 1401). Following a jury trial at which defendant raised the defense of entrapment, defendant was found guilty of all three counts and sentenced to concurrent six-year terms in the Illinois Department of Corrections.

Defendant appeals his conviction and sentence alleging the following errors: (1) the trial court erred in failing to ask prospective jurors during voir dire: “Will you accept and promise to follow the law that in some circumstances excuses otherwise criminal behavior by an individual?”; (2) the State failed to rebut defendant’s entrapment defense by proof beyond a reasonable doubt; and (3) the trial court prejudiced defendant’s defense when it precluded him from testifying as to why he gave the drug money he received in the drug transactions to his supplier.

Prior to trial, the court read into the record the above voir dire question which defendant sought the court to ask of prospective jurors. In denying to ask defendant’s proposed question, the court reasoned that it was self-contradictory because excused conduct cannot be criminal and that it tended to indoctrinate the jury to defendant’s entrapment defense.

Detective Edward Peters of the Hoffman Estates police department testified for the State that after speaking with Detective Brad Hollister, he formulated a plan to meet defendant at a Mobile gas station in Hoffman Estates. Peters arrived there in an undercover vehicle at about 3 p.m. Surveillance vehicles and officers were also at the gas station. A red pick-up truck arrived shortly after Peters’ arrival, from which defendant exited. Defendant walked to Peters’ vehicle and asked Peters if his name was Mike, which Peters used as his undercover name. Peters replied in the affirmative, and defendant entered his vehicle.

Peters asked defendant if he had the cocaine, and defendant produced a clear plastic bag containing one gram. Peters handed defendant $90, which defendant inserted in his pocket. Defendant told Peters that if he needed any more, he had an ounce. Peters responded that he only had enough for a gram.

On January 23, 1989, Peters called defendant at about 5:40 p.m. and asked him if he could get an “eight-ball” or one-eighth ounce of cocaine. Defendant said he would have to make a call and that Peters should call him back. When Peters telephoned again at 5:55 p.m., defendant told him that it was set for the next day at 3 p.m. at the Mobile gas station and that “it was better stuff than the last time.”

On January 24, 1989, at 3 p.m., Peters went to the Mobile station in the same undercover vehicle. Defendant arrived in a Nissan. Defendant entered Peters’ vehicle and produced a bag containing one-eighth ounce of cocaine. Peters handed defendant $220, which defendant placed into his pocket. Peters then asked defendant how much cocaine he could get for $3,000. Defendant replied that “he would have to check and see.”

Peters called defendant on January 25, 1989. He again asked defendant how much cocaine he could get for $3,000. Defendant said he could get an ounce for $1,300. Peters accepted this price, and he and defendant agreed that Peters would call back to schedule a time and place. Peters called defendant again and the meeting was set for the next day at a Checker gas station in Barrington.

Peters went to the Checker gas station on January 26, 1989. Defendant arrived alone and told Peters that he would need the money in advance. Peters replied that this was unacceptable, and the meeting ended.

On February 9, 1989, Peters called defendant and asked him about the ounce. Defendant said he could supply one and told Peters to meet him that same day at an apartment complex in Hoffman Estates at 12:45 p.m. Peters went to the designated location, whereupon defendant arrived in a pick-up truck. Defendant entered Peters’ vehicle and asked to see the money, which Peters showed him. Defendant counted the money, thereafter giving Peters a bag containing 27.4 grams of cocaine. Peters activated his signal and the surveillance team arrested defendant. Peters stated that defendant never said that he did not want to sell any drugs to him.

Detective Brad Hollister testified that he was a detective for the Hoffman Estates police department in January 1989. Hollister was present at each of the three buys as part of the surveillance team. He testified that he saw defendant arrive and get into Peters’ car on each occasion.

Officer Brian Lucas of the Hoffman Estates police department testified that he too was part of the surveillance team on February 9, 1989. He saw defendant enter Peters’ car. When Peters activated the arrest signal, Lucas arrested defendant.

It was stipulated by the parties that the bag from the January 18 delivery contained one gram of cocaine; that the bag from the January 24 delivery contained 3.4 grams of cocaine; and that the bag from the February 9 delivery contained 27.4 grams of cocaine.

Defendant testified on his own behalf. In January 1989 he was 19 years old. Defendant admitted that he sold cocaine to Peters in 1989 on January 18, January 24 and February 9. Defendant sold the cocaine because he was hooked on it and thought it would be a good way to get some more cocaine. Defendant’s supplier was Mark Smith, a friend of his.

Peters called defendant and asked him if he could get him some cocaine. Defendant was hesitant at first but agreed because he thought he could “get some free coke out of it.”

Prior to January 18, 1989, defendant had never sold cocaine before. Defendant gave the money from the January 18 sale to Mark Smith. Smith had been supplying defendant with drugs. Smith was the one who drove defendant to the meeting places. Before the January 18 meeting, another meeting with Peters was scheduled, but defendant did not go because he had a “gut feeling about it.” Peters kept calling him, so he just sold the cocaine to get Peters off his back and to get some coke for himself.

Defendant admitted doing four to five grams of cocaine a week. A gram cost about $100. Defendant was earning about $300 to $350 a week at his job. Defendant was paying rent to his parents. Defendant never said to Peters that he did not want to sell drugs.

The jury found defendant guilty of all three delivery charges. Defendant was sentenced to three six-year terms, running concurrently. Defendant brings this appeal.

Defendant first contends on appeal that the trial court denied him a fair trial when it refused to ask prospective jurors the following question, read into the record as follows: “Will you accept and promise to follow the law that in some circumstances excuses otherwise criminal behavior by an individual?”

Supreme Court Rule 234 governs voir dire examination of prospective jurors:

“The court shall conduct the voir dire examination of prospective jurors by putting to them questions it thinks appropriate touching their qualifications to serve as jurors in the case on trial. The court may permit the parties to submit additional questions to it for further inquiry if it thinks they are appropriate, or may permit the parties to supplement the examination by such direct inquiry as the court deems proper. Questions shall not directly or indirectly concern matters of law or instructions. The court may acquaint prospective jurors with the general duties and responsibilities of jurors.” 134 Ill. 2d R. 234.

The purpose of voir dire is to assure the selection of an impartial jury. (People v. Howard (1991), 147 Ill. 2d 103, 133, 588 N.E.2d 1044, cert. denied (1992), _ U.S. _, 121 L. Ed. 2d 154, 113 S. Ct. 215; People v. Chamness (1984), 129 Ill. App. 3d 871, 873, 473 N.E.2d 476.) Rule 234 was promulgated to shorten voir dire by eliminating that portion of the process which did not advance the legitimate ends of impaneling an impartial jury. (People v. Stack (1986), 112 Ill. 2d 301, 311, 493 N.E.2d 339, cert. denied (1986), 479 U.S. 870, 93 L. Ed. 2d 162, 107 S. Ct. 236.) The rule is aimed at this specific evil since “ ‘no reason is perceived for questioning [prospective jurors] as to legal principles or concepts beyond ascertaining whether or not they are willing to accept and follow the instructions concerning the law of the case.’ (Emphasis added.)” Stack, 112 Ill. 2d at 311, quoting People v. Lobb (1959), 17 Ill. 2d 287, 302, 161 N.E.2d 325.

Circuit courts have broad discretion in conducting and managing voir dire under Rule 234, and the decision to ask certain questions of prospective jurors is within this discretion. (Chamness, 129 Ill. App. 3d at 873; People v. Kendricks (1984), 121 Ill. App. 3d 442, 459 N.E.2d 1137.) Voir dire questioning may not be used as a means for preeducating and indoctrinating prospective jurors as to a particular theory or defense or impanelling a jury with particular predispositions, nor may the questions concern matters of law or instruction. (Chamness, 129 Ill. App. 3d at 873; Kendricks, 121 Ill. App. 3d at 448-49.) A reviewing court will not find that the trial court abused its discretion during voir dire where the questions posed and the procedures employed created a reasonable assurance that any prejudice or bias would be discovered. People v. Lanter (1992), 230 Ill. App. 3d 72, 75, 595 N.E.2d 210; People v. Faulkner (1989), 186 Ill. App. 3d 1013, 1027, 542 N.E.2d 1190; People v. Brandon (1987), 157 Ill. App. 3d 835, 841, 510 N.E.2d 1005, appeal denied (1987), 116 Ill. 2d 563, 515 N.E.2d 114.

One of the leading cases discussing affirmative defense oriented voir dire is People v. Stack (1986), 112 Ill. 2d 301, 493 N.E.2d 339. In Stack, our supreme court held that a defendant should be allowed to identify and challenge those prospective jurors who would refuse to follow the statutory law on the insanity defense. (Stack, 112 Ill. 2d at 313.) The rejected question in Stack provided: “Do you have any feeling or viewpoint concerning the defense of insanity in a criminal case? If so, what?” (Stack, 112 Ill. 2d at 310.) This question was found not to violate Rule 234 because it sought to determine only whether the prospective jurors would be biased against an insanity defense. (Stack, 112 Ill. 2d at 311.) Since the question did not attempt to state the law but merely probed for bias, it could not be faulted for containing argumentative and misleading statements of law, the abusive practice which Rule 234 put to rest. Stack, 112 Ill. 2d at 311.

To support its conclusion, the court in Stack referred to its prior case of People v. Wright (1985), 111 Ill. 2d 128, 490 N.E.2d 640, in which the court approved of the State’s asking prospective jurors whether they could impose the death penalty in an appropriate case. The court also referred to Schneider v. Kirk (1967), 83 Ill. App. 2d 170, 226 N.E.2d 655, which allowed attorneys in dramshop cases to ask prospective jurors whether they disagreed with the dramshop statute. The court in Stack observed as a common thread running through these cases: “the jury was going to be asked to apply an extraordinarily controversial legal requirement against which many members of the community may have been prejudiced. Inquiry into the feeling or viewpoint of the venire regarding such controversial legal propositions is consistent with a bona fide examination conducted so that the parties can intelligently exercise their prerogatives to challenge.” (Stack, 112 Ill. 2d at 312.) The court in Stack went on to find that, because an insanity defense is itself the “subject of intense controversy,” simply asking the jury whether it could faithfully apply the law as instructed was insufficient to fetter out juror bias and prejudice toward the defense. Stack, 112 Ill. 2d at 313.

Apart from the insanity defense, voir dire questions particularized towards other criminal defenses have been generally disallowed. (See People v. Witted (1979), 79 Ill. App. 3d 156, 398 N.E.2d 68 (mistaken identity); (People v. Phillips (1981), 99 Ill. App. 3d 362, 425 N.E.2d 1040 (compulsion); (People v. Dunum (1989), 182 Ill. App. 3d 92, 537 N.E.2d 898, appeal denied (1989), 127 Ill. 2d 625, 545 N.E.2d 118; People v. Skipper (1988), 177 Ill. App. 3d 684, 533 N.E.2d 44, appeal denied (1988), 125 Ill. 2d 572, 537 N.E.2d 817; People v. Kindelan (1986), 150 Ill. App. 3d 818, 502 N.E.2d 422, appeal denied (1987), 114 Ill. 2d 553, 508 N.E.2d 733, vacated on other grounds (1991), 213 Ill. App. 3d 548, 572 N.E.2d 1138; People v. Kendricks (1984), 121 Ill. App. 3d 442, 459 N.E.2d 1137 (self-defense).) However, the fourth district recently reversed and remanded a case for the circuit court’s failure to ask the following propounded question on the intoxication defense: “[D]o any of you have any feelings concerning the use of alcohol or drugs which could affect your ability to be a juror in this case ***.” People v. Lanter (1992), 230 Ill. App. 3d 72, 73, 595 N.E.2d 210.

In this case, we do not address whether the defense of entrapment is so controversial and extraordinary that a new trial is warranted in situations where the trial court refuses to ask entrapment-oriented voir dire questions. Rather, we elect to affirm the circuit court’s rejection of defendant’s question based on the question itself. First, the question seeks to indoctrinate the jury towards finding entrapment rather than probing for bias or prejudice regarding the defense. To the extent particularized defense questions have been allowed, their format has been very open ended. Both Stack and Lanter had this format in common, as did the question in another case upon which defendant relies (see People v. Davis (1983), 95 Ill. 2d 1, 447 N.E.2d 353, cert. denied (1983), 464 U.S. 1001, 78 L. Ed. 2d 697, 104 S. Ct. 507), while the proposed question in this case does not.

Second, the question is misleading in that it seeks to label defendant’s conduct as “otherwise criminal” if an entrapment is found to exist. A successful entrapment defense, however, makes the act in question noncriminal. See Ill. Rev. Stat. 1989, ch. 38, par. 7 — 12 (“A person is not guilty of an offense if ***”). (Emphasis added.)

Finally, the question makes no sense on its face. Words are apparently missing. We believe it proper that the court disallowed defendant from asking a question that may have only confused the jury. For these reasons, we affirm the circuit court’s rejection of defendant’s tendered question.

We next address whether the State failed to rebut defendant’s entrapment defense beyond a reasonable doubt. Defendant’s entrapment defense is predicated upon section 7 — 12 of the Criminal Code of 1961:

“A person is not guilty of an offense if his conduct is incited or induced by a public officer or employee, or agent of either, for the purpose of obtaining evidence for the prosecution of such person. However, this Section is inapplicable if a public officer or employee, or agent of either, merely affords to such person the opportunity or facility for committing an offense in furtherance of a criminal purpose which such person has originated.” (Ill. Rev. Stat. 1989, ch. 38, par. 7 — 12.)

Once a defendant raises entrapment as an affirmative defense and presents some evidence thereon, the State is required to prove, in addition to each of the statutory elements of the offense, the absence of entrapment beyond a reasonable doubt. Ill. Rev. Stat. 1987, ch. 38, par. 3 — 2.

In People v. Boalbey (1986), 143 Ill. App. 3d 362, 364-65, 493 N.E.2d 369, this court explained the entrapment defense:

“In Illinois, entrapment occurs when the criminal design originates with the State officers who implant in the mind of an innocent person the disposition to commit the alleged offense and who induce its commission in order that they may prosecute. The principal element of the defense of entrapment is the defendant’s lack of disposition to commit the crime. The fact the State’s officers or employees merely afford opportunities or facilities for the commission of an offense does not defeat the prosecution and the State’s deception brings the defense of entrapment into play only when the deception actually implants the criminal design in the defendant’s mind. [Citations.]
The question involves two issues, inducement and predisposition, and the defendant has the burden of proving that the State induced him to commit a criminal act; if he so proves, then the burden is on the State to prove the defendant was ready and willing to commit the crime without persuasion, that is, that he had a predisposition to commit the crime (Ill. Rev. Stat. 1983, ch. 38, par. 3 — 2).”

The standard of review when the sufficiency of the evidence is challenged on appeal is whether, after viewing the evidence in the light most favorable to the prosecution, any rationale trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Furby (1990), 138 Ill. 2d 434, 455, 563 N.E.2d 421.) Determinations of the credibility of the witnesses, the weight to be given to their testimony, and the reasonable inferences to be drawn from the evidence are responsibilities of the trier of fact. Furby, 138 Ill. 2d at 455.

In this case, the State rebutted defendant’s entrapment defense with proof beyond a reasonable doubt. Defendant’s reluctance to sell the drugs to Peters was minimal. Defendant never told Peters that he did not want to sell cocaine. Defendant, an admitted cocaine user, saw the opportunity to sell cocaine as a method by which to obtain more. Peters testified that after the first sale, defendant told him that he could obtain more if needed. On the second sale, defendant told Peters that this cocaine was better than what Peters purchased last time. As for each sale, while Peters called defendant to initiate the sale, defendant was able to quote Peters a price after making a telephone call. Having no car of his own, defendant arranged transportation to the meeting place.

The above evidence entitled the jury to find defendant guilty. While Peters initiated each sale with a telephone call, defendant accommodated Peters’ needs with little or no resistance. Defendant’s motive to sell was his own desire to obtain free cocaine. Under the applicable standard of review, we affirm the jury’s finding of guilt.

Defendant finally contends that an evidentiary ruling by the circuit court operated to deny him a fair trial by limiting his ability to demonstrate that he was entrapped. During defendant’s direct examination, counsel asked defendant what he did with the cocaine money which Peters had given him. Defendant replied that the money was given to his supplier. Counsel then sought to ask why the money was so given, but the State’s objection was sustained on the grounds of relevancy. Defendant made no offer of proof on the issue.

It is within the discretion of the trial court to decide whether evidence is relevant and admissible, and its decision will not be reversed absent a clear abuse of discretion resulting in manifest prejudice to defendant. (People v. Hayes (1990), 139 Ill. 2d 89, 130, 564 N.E.2d 803, cert. denied (1991), 499 U.S. 967, 113 L. Ed. 2d 664, 111 S. Ct. 1601.) Here, the court’s action resulted in no manifest prejudice to defendant. Defendant was given the clear opportunity to convey the gist of his entrapment defense to the jury, but the jury nevertheless rejected it. The omitted testimony, if allowed, would have added little to defendant’s case. Thus, the court’s ruling did not manifestly prejudice defendant’s case.

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

Affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.


author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS et al., Plaintiffs-Appellees, v. PEGGY KIRKPATRICK, Defendant-Appellant.
    First District (1st Division)
    No. 1 — 91—4010
    Opinion filed December 21, 1992.

      George E. Panos, of Palos Park, for appellant.

      Jack O'Malley, State’s Attorney, of Chicago (Renee Goldfarb, Donald T. Lyman, and Joelle Marasco, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Defendant Peggy Kirkpatrick appeals an order of the circuit court of Cook County denying defendant’s request that her bail bond deposit be refunded to her attorneys. The trial court ruled plaintiff Hazel Dreifholdt, the aunt of defendant’s ex-husband, plaintiff Rodger Kirkpatrick, had a superior interest in the funds, and ordered the funds be paid to Hazel. For the following reasons, we affirm.

The record on appeal indicates the following facts. Defendant was charged by indictment with one count of attempted first degree murder, one count of conspiracy to commit murder, two counts of armed violence and three counts of aggravated battery. Bond was set at $250,000. On July 24, 1990, pursuant to section 110 — 7 of the Code of Criminal Procedure (Ill. Rev. Stat. 1989, ch. 38, par. 110 — 7), defendant posted 10% of the bond amount — $25,000—and was issued a receipt by the clerk of court. On July 8, 1991, defendant pleaded guilty to three counts of aggravated battery; the State nol-prossed the remaining counts. At hearings on the plea, the parties stipulated to facts indicating that a codefendant shot Rodger Kirkpatrick on behalf of defendant and that defendant aided the shooting. Defendant was sentenced to two years’ imprisonment, followed by one year of mandatory supervised release. In addition, costs and fines totalling $4,000 were to be deducted from the bond.

At the sentencing hearing, one of defendant’s attorneys moved for leave to file a petition for a cash bond refund (CBR) to the attorney of record. The trial court noted that no one appeared as a surety on the bond deposit slip. Over the State’s objection, the trial court allowed the motion and stated that any objections should be filed by July 22, 1991.

The case was continued to August 13, 1991, when defendant moved in limine to bar testimony from anyone seeking to assert an interest in the bond refund for lack of standing. The motion was denied, and the trial court heard evidence on the CBR petition. Defendant’s motion to reconsider the ruling on her motion in limine was denied on August 29, 1991. The trial court allowed time for further motions to be heard the following month.

On September 26, 1991, defendant moved to transfer the hearing on the CBR petition to a pending chancery action concerning the same subject matter. The court set the motion for argument on November 12, 1991. Yet on November 12, 1991, the trial judge recused himself and transferred the case to the presiding judge for reassignment. Following a hearing before the presiding judge on November 13, 1991, the case was transferred back to the trial judge to state reasons for the recusal and to reconsider the ruling. Later that day, the trial judge stated that the reason for the recusal was that he knew a newly added defense attorney from a bar association function and wanted the parties to know of this relationship. Over defendant’s objection, the trial judge revested himself with jurisdiction over the matter. Defendant moved to vacate the order revoking the recusal.

The motion to vacate was denied at a hearing held on December 18, 1991. At this hearing, the court stated that it had heard the evidence relating to the GBR petition. The court stated that defendant’s husband Rodger raised $20,000 of the $25,000 deposit from his aunt, Hazel Dreifholdt, who lives in another State. Rodger then deposited the money in his account and had a certified check for $25,000 made out to the clerk of court. The court found there was no indication of a surety on the bond deposit slip. The court nevertheless found that the evidence, including a letter defendant wrote Hazel thanking her for the money, established that the money came from Hazel. The court also took note of a divorce settlement between defendant and Rodger which provided that the bond money belonged to Hazel. The court stated that defendant subsequently hired the attorney to whom the GBR petition relates. The court concluded that Hazel had a superior interest in the funds and that the money would go to her, rather than to the defense attorney. Defendant timely filed a notice of appeal. On April 10, 1992, this court, over defendant’s objection, added Rodger and Hazel as parties, pursuant to Illinois Supreme Court Rule 366(a)(2) (134 Ill. 2d R. 366(a)(2).).

I

Initially, defendant contends that the bail statute creates a conclusive presumption that the funds belong to her. (See People v. Markovich (1990), 195 Ill. App. 3d 999, 552 N.E.2d 1232.) Although Markovich suggests that such a presumption exists for the purpose of paying costs and fines, it does not exist for the purpose of paying legal fees. (See, e.g., People v. Dorsey (1982), 109 Ill. App. 3d 218, 225-26, 440 N.E.2d 394, 399-400.) Indeed, the Dorsey court concluded that the trial court could prevent a defendant from using a cash bond deposit where the funds were the subject of dissolution proceedings. The record here indicates that the trial court considered a divorce settlement agreement between Rodger and defendant indicating that the bond funds belonged to Hazel. Thus, the presumption, if any, that the funds belong to defendant may be rebutted.

II

In this context, we turn to defendant’s argument that the trial court deprived her of property without due process of law by: (1) failing to add Rodger or Hazel or both as necessary and indispensable parties; and (2) denying her motion in limine to bar testimony from anyone asserting an interest in the bond funds because such persons had no standing and had filed no pleadings in the case. As to the first claimed error, this court has rejected similar claims where the record clearly indicates that defendant received due process of law. (See O’Connell v. Pharmaco, Inc. (1986), 143 Ill. App. 3d 1061, 1069-70, 493 N.E.2d 1175, 1181.) It is apparent from the record that defendant appeared and defended her claim on the CBR, and thereby received due process of law. The motion in limine itself sought to bar references to “Any involvement by anyone’s ‘aunt,’ ” which indicates that defendant had notice of the objections which were in fact raised in this case. As to the second claimed error, defendant has provided no authority that a witness must have standing or must have filed pleadings as a prerequisite to such testimony being admissible. Thus, defendant’s arguments are unpersuasive.

III

Defendant contends that it was improper for the State to object to the CBR petition. Defendant relies on cases holding that the State’s Attorney may not be interested in a civil case which may also be the basis of a criminal case, in order to prevent personal interest from influencing a prosecution. People v. Kidd (1948), 401 Ill. 230, 237, 81 N.E.2d 892, 895; People ex rel. Hutchison v. Hickman (1920), 294 Ill. 471, 476; People ex rel. Carey v. Lincoln Towing Service (1976), 40 Ill. App. 3d 126, 130-32, 351 N.E.2d 342, 347-48; In re Guardianship of Angell (1960), 26 Ill. App. 2d 239, 243, 167 N.E.2d 711, 713; see Ill. Rev. Stat. 1989, ch. 34, par. 3 — 9009.

Defendant has failed to show that the State’s Attorney had any personal pecuniary interest in the outcome of the CBR petition or that the facts surrounding the funds formed or could form the basis of any criminal case. The record indicates that costs and fines were deducted from the bond funds before the CBR petition was filed. We conclude that the State’s Attorney acted only to see that justice was done. (See Angell, 26 Ill. App. 2d at 243, 167 N.E.2d at 713.) Where the State’s Attorney does not appear to personally benefit from an action, the mere fact that such an action may protect the legal rights of one citizen against another does not render the State’s Attorney’s action improper. See People ex rel. Mahoney v. Decatur, Springfield & St. Louis Ry. Co. (1905), 120 Ill. App. 229.

IV

Defendant argues that the trial judge erred when he reversed his decision to recuse himself. The record indicates that the trial judge’s contact with a defense attorney, who entered an appearance after the trial court had heard evidence in this matter (and had ruled against defendant to do so), was limited to participation for two weeks in a bar association “Annual Christmas Spirit Show” over two years prior to the hearings at issue. The record indicates that the trial judge knew the defense attorney on a “hello and goodbye” basis only. The trial court’s initial recusal was in error; such a tenuous “relationship” does not give rise to even an appearance of impropriety under the facts in this case, particularly where the attorney joins the case after the evidence is heard and all that remains is for the trial court to issue its ruling. Defendant asserts that it is immaterial whether the trial judge was mistaken in initially recusing himself, but offers no authority for that proposition. Thus, there was no error in reversing the recusal.

V

Defendant argues that the trial court erred in ruling that Hazel was a surety, as the record is devoid of any assignment or suretyship agreement between Hazel and the defendant. However, as the appellant, defendant has the burden of showing error; any doubt arising from incompleteness of the record will be resolved against the appellant. (E.g., Riopelle v. Northwest Community Hospital (1990), 195 Ill. App. 3d 750, 755, 552 N.E.2d 1220, 1223.) Issues of sufficiency of the evidence cannot be reviewed without a report of proceedings. Griffiths v. Griffiths (1984), 127 Ill. App. 3d 126, 130, 468 N.E.2d 482, 485.

Defendant has failed to provide this court with the transcripts of proceedings for August 13 and 29, 1991. The record indicates that the evidence in this case was heard on August 13, 1991. Moreover, the trial court referred to a letter from defendant to Hazel regarding the bond funds; this letter appears to be missing from the record on appeal as well. Thus, this court presumes that the trial court heard evidence and testimony supporting its decision.

VI

Finally, defendant contends that the trial court lacks the statutory authority to direct that the CBR be paid to Hazel. This court has previously ruled that the bail statute gives the trial court the authority to prevent bond funds from being used as legal funds where an actual dispute over their ownership exists. (Dorsey, 109 Ill. App. 3d at 225-26, 440 N.E.2d at 399-400.) Consequently, the trial court acted within its discretion in this case.

For all of the aforementioned reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

BUCKLEY, P.J., and O’CONNOR, J., concur.


author: PRESIDING JUSTICE BUCKLEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM PATTEN, Defendant-Appellant.
    First District (1st Division)
    No. 1 — 91—0457
    Opinion filed December 28, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Murray M. Coffey and Karen E. Tietz, Assistant Public Defenders, of counsel), for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Jane Mahoney, Special Assistant State’s Attorney, and Renee Goldfarb and Theresa Harney, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Following a jury trial, defendant William Patten was found guilty of child abduction. The trial judge sentenced defendant to two years in the Illinois Department of Corrections and one year of supervised release. The issues defendant raises on appeal are: (1) that defense counsel’s delay in amending his answer to discovery to include expert psychiatric testimony denied defendant effective assistance of counsel; and (2) that he was denied a fair trial when the judge failed to exercise his discretion and give a meaningful answer to a question asked by the jury during its deliberations.

On September 26, 1990, at approximately 7 p.m., 11-year-old K.H. and nine-year-old P.H. were playing on the front porch of a house at 1147 South Albany. P.H.’s three-year-old sister was outside with them and their 13-year-old baby sitter M.R. had just gone inside to answer the telephone. The children both testified that a “reddish maroon” car slowly drove by, stopped, and reversed back to the house. They testified that the man inside the car made a gesture for them to come toward the car. K.H. stated that she heard him say “come.” P.H. testified that he heard the man say “come here.” According to the children, K.H. started screaming and they both grabbed the three-year-old and ran inside the house. M.R. then called the police. At the police station, K.H. and P.H. both identified the defendant’s car as the one that had been driven by the house. Additionally, K.H. identified the defendant in a lineup and again later she identified him in court as the man in the vehicle.

On cross-examination, defense counsel showed the children a poster which had been distributed in front of the school and posted around the neighborhood prior to the day in question. The poster had a picture of defendant, a description of his car, his license number and warned kids to stay away from him because he was a “very bad man with children.” Both K.H. and P.H. admitted that they had seen the poster before and knew what it said. K.H. testified she had seen a copy of the poster in her own house. Additionally, the children’s parents had warned them to stay away from defendant.

The baby sitter, 13-year-old M.R., testified that she had gone inside to answer the telephone when she heard the other children screaming and running up the steps into the house. She called the police after they told her what had happened. She stated that she never gave defendant permission to put the children in his car. On cross-examination, M.R admitted that she had seen the poster warning them to stay away from defendant posted all around the neighborhood and that all the children were aware of it.

K.H.’s mother and P.H.’s father both testified that neither they nor their spouses had ever given defendant permission to put the children in his car. Additionally, they both stated that their children had seen the poster prior to the incident. They also testified that they had expressly discussed it with their children and warned them about the person pictured on the poster.

Detective James Butler testified that he interviewed each child separately and that both children identified defendant from a photo array as the man who had attempted to lure them into his car. He also stated that he was a witness to K.H.’s lineup identification of defendant.

Officers Wayne Conley and Gerald Pustay testified that they were called to investigate the case at approximately 7:20 p.m. on September 26, 1990. They were informed by Detective Butler that K.H. had identified defendant as the person who had attempted to lure the children into his car. The officers proceeded to defendant’s home, where they observed defendant’s red Mustang in the driveway. They knocked on the door, but received no response. They then set up surveillance of the home. According to the officers, about 20 minutes later, defendant exited his house. The officers testified that when defendant saw them coming toward him he ran back up the driveway toward the back of his house. Officer Pustay overtook defendant and arrested him. Officer Conley took defendant’s keys and drove his red Mustang to Area 2 headquarters.

The State then introduced the testimony of three witnesses for the limited purpose of showing defendant’s modus operandi and intent. E.L., a 10-year-old girl, and B.M., a 10-year-old boy, testified that on May 27, 1990, at approximately 2:40 p.m., they were playing on the sidewalk on the corner of 114th and Whipple when defendant drove up in a red Mustang. According to E.L. and B.M., defendant opened the car door, reached out toward them and asked them for a kiss. The children stated that they ran from defendant. Detective Waliczek testified that he conducted a photo lineup first at E.L.’s home and then shortly thereafter at B.M.’s home. Both children identified defendant as the man who attempted to kiss them. Waliczek also stated that the children identified defendant in a physical lineup.

Defendant called his mother, father, and brother on his behalf. His father testified that defendant was at home at 7 p.m. on September 26, 1990, and at approximately 2:40 p.m. on May 27, 1990. He also stated that he had seen the posters around the neighborhood alleging that his son was a child molester and he had tom down at least 35 of them. Defendant’s brother also testified that defendant was at home at 7 p.m. on September 26, 1990, and at 2:40 p.m. on May 27, 1990. Defendant’s mother also testified that defendant was home at the time of the alleged occurrence on September 26,1990.

Finally, defendant testified on his own behalf. He stated that on the night of the incident he was sick and went to the drugstore to purchase some medication at approximately 6:30 p.m. He testified that the route he followed did not take him within the vicinity of 1147 South Albany. According to defendant, he returned home at approximately 6:45 p.m. He testified that he took the medicine and lay down. He then got up several hours later and went out to get some fresh air. According to defendant, as he was walking down his driveway, he noticed a car parked down the block. At that same moment he heard a telephone ring and turned to run back into the house to answer the phone. He stated that he was about to open the door when the police told him to “halt.” He testified that he had never seen K.H. or P.H. prior to seeing them at the police station that night. He further stated that he was at home on May 27, 1990, at 2:40 p.m. and that he had never seen B.M. or E.L. before.

The jury found defendant guilty of both counts of child abduction. Defendant filed a motion for a new trial and a motion in arrest of judgment. Both motions were denied.

Defendant’s first argument on appeal is that trial counsel’s delay in amending his answer to discovery to include expert psychiatric testimony denied him the effective assistance of counsel.

Prior to trial, defendant filed his answer to the State’s pretrial discovery request. Defendant asserted that he would present an alibi defense at trial and would establish that he was at home at 3521 West 105th Place with his parents and his brother. He stated in his answer that he intended to call “any physicians who have examined and treated the defendant.” He did not list, however, any expert psychiatric witnesses.

On January 8, 1991, just before the trial began, defense counsel asked the court for an opportunity during the course' of the trial to have a psychiatrist examine defendant and then testify. The prosecutor objected, arguing that defendant had asserted alibi as a defense. In addition, the prosecutor objected because the State’s expert would not have time to examine defendant. The trial judge reserved his ruling until “the appropriate time.” At the start of the second day of trial on January 9, 1991, defense counsel again requested defendant be examined by a psychiatrist. Over the State’s objections, the trial judge allowed defendant to be examined by a psychiatrist during the lunch recess.

After lunch and before the jury was called back, defense counsel made an offer of proof in regards to the psychiatric testimony. Defense counsel offered that Dr. Paul Lawler, a specialist in psychiatry for 20 years, would testify that he had examined defendant and defendant’s mother, father, and brother, and had reviewed the reports of the court’s psychiatrist. He would further testify that, in his opinion, defendant has some psychosis, some degree of retardation, and a diminished level of intelligence. He also would state that defendant was a loner who had difficulty dealing with people, but that, in his opinion, defendant had no sexual dysfunction related to young children and is no danger to himself or to others.

The State objected to Dr. Lawler’s testimony on three grounds. First, the prosecutor asserted that it was not indicated that Dr. Lawler would testify that defendant’s diminished level of intelligence and slight retardation mean that defendant did not know right from wrong. Second, the prosecutor argued that since defendant was asserting an alibi defense and not an insanity defense, the doctor’s testimony was irrelevant. Finally, the prosecutor maintained that the State had not received sufficient notice and, therefore, could not rebut Lawler’s testimony. The trial judge denied defendant’s motion to amend his list of witnesses and refused to allow Dr. Lawler to testify on the ground that defendant had not offered any satisfactory explanation as to why Dr. Lawler’s name was not furnished earlier than on the second day of trial and just one witness away from the State resting its case.

Defendant contends that trial counsel’s delay in amending his answer to discovery to include the name of Dr. Lawler, a psychiatrist, as a potential defense witness was ineffective assistance of counsel. According to defendant’s argument, if the jury had heard Dr. Lawler’s testimony regarding defendant’s mental retardation and diminished mental capacity, it would have found that defendant did not possess an unlawful purpose as required by the child abduction statute and the outcome of the trial would have been different. Defendant reasons that without Dr. Lawler’s testimony, however, it was impossible for the jury to have found in defendant’s favor. “Child abduction” is defined in section 10 — 5(b)(10) as follows:

“(b) A person commits child abduction when he or she:
* * *
(10) Intentionally lures or attempts to lure a child under the age of 16 into a motor vehicle, *** without the consent of the parent or lawful custodian of the child for other than a lawful purpose.” (Ill. Rev. Stat. 1989, ch. 38, par. 10 — 5(b)(10).)

The State counters that defense counsel gave defendant the best assistance possible by presenting a solid alibi defense. Alternatively, if failure to list the psychiatrist as a potential witness rendered counsel’s performance substandard, the State maintains that this “defect” would not have altered the outcome of the trial.

In order for a defendant to establish on appeal that he has received ineffective assistance of counsel, he must show (1) that his attorney’s performance “fell below an objective standard of reasonableness,” and (2) that, as a result of counsel’s substandard performance, he was deprived “of a fair trial, a trial whose result is reliable.” (Strickland v. Washington (1984), 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064; People v. Albanese (1984), 104 Ill. 2d 504, 525, 473 N.E.2d 1246, 1255.) In order for a defendant to show that he did not receive a fair trial, he must show more than just that his counsel’s errors or omissions “had some conceivable effect on the outcome of the proceeding.” (Strickland, 466 U.S. at 693, 80 L. Ed. 2d at 697, 104 S. Ct. at 2067.) He must show that, but for defense counsel’s deficient performance, there is a reasonable probability that the result of the proceeding would have been different. (Albanese, 104 Ill. 2d at 525, 473 N.E.2d at 1255, citing Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) Obviously, therefore, this does not mean a defendant is entitled to perfect representation, but he is entitled to counsel who will subject the prosecution’s case to “meaningful adversarial testing.” United States v. Cronic (1984), 466 U.S. 648, 659, 80 L. Ed. 2d 657, 668, 104 S. Ct. 2039, 2047; People v. Williams (1991), 215 Ill. App. 3d 800, 811, 576 N.E.2d 68, 75; People v. Barfield (1989), 187 Ill. App. 3d 190, 197-98, 543 N.E.2d 812, 816.

In addition, in order to avoid the “distorting effects of hindsight,” there is a “strong presumption” that defense counsel’s performance “[fell] within the wide range of reasonable professional assistance.” (Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.) In explaining this “highly deferential” standard, the Strickland Court observed:

“It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. *** There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. [Citation].” (Strickland, 466 U.S. at 689-90, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065-66.)

The Strickland Court reasoned that if courts engaged in greater scrutiny of defense counsel’s performance, “[cjriminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel’s unsuccessful defense.” Strickland, 466 U.S. at 690, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066; Albanese, 104 Ill. 2d at 526, 473 N.E.2d at 1255.

After reviewing the record, we cannot say that counsel’s failure to amend his answer to the State’s pretrial discovery to include Dr. Lawler’s name was ineffective assistance of counsel. Defendant’s defense at the time he answered discovery and throughout trial was alibi. Defendant obviously told his attorney that “he did not do it.” At trial, he testified that he was at home at the time of the incident. Additionally, his mother, father, and brother all corroborated his story that he was at home at 7 p.m. on September 26, 1990. Moreover, defense counsel vigorously cross-examined every witness and discredited their testimony as best he could by bringing out the fact that, prior to identifying defendant as the perpetrator, both the children and the police were aware of posters with defendant’s picture, license number, and description of his car which had been distributed throughout the neighborhood and which accused him of being a child molester.

Clearly, Dr. Lawler’s testimony that defendant had a diminished level of intelligence and slight retardation is irrelevant to whether or not defendant was at home at the time of the incident. Defense counsel’s alibi defense was supported not only by the defendant’s testimony, but also by three other witnesses. Counsel acted as a vigorous advocate for defendant and, as illustrated by his cross-examinations of the State’s witnesses, subjected the prosecution’s case to “meaningful adversarial testing.”

Defendant’s assertion that without Dr. Lawler’s testimony it was impossible for the jury to find him not guilty is simply not true. There was more than sufficient evidence in the record for the jury to have acquitted defendant based on his alibi defense. As the Strickland Court foresaw would occur in numerous cases when it established that judicial scrutiny of defense counsel’s performance must be “highly deferential,” defendant here, with the distorting effects of hindsight as a guide, has succumbed to the temptation to second-guess his counsel’s unsuccessful defense and concluded, all too easily, that the failure to present Dr. Lawler’s testimony was unreasonable. (See Strickland, 466 U.S. at 689-90, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065-66.) There is no basis, however, for this conclusion. This is exactly the reason why there is a strong presumption that counsel’s representation fell “within the wide range of reasonable professional assistance.” Clearly, Dr. Lawler’s testimony would not have hurt defendant’s case, but we cannot say that failure to present it, in light of the circumstances, was incompetent representation.

Assuming arguendo that defense counsel’s performance was deficient, we do not believe it prejudiced defendant and deprived him “of a fair trial, a trial whose result is reliable.” First, defendant’s defense was alibi and not insanity. Dr. Lawler’s testimony that defendant had a diminished level of intelligence and slight retardation is irrelevant to whether he attempted to lure the children into his vehicle. Second, Dr. Lawler’s testimony went to defendant’s mental capacity and not his mental state at the time of the incident. Defendant’s offer of proof as to what Dr. Lawler’s testimony would be did not indicate that he would state that defendant’s mental capacity precluded him from being able to formulate the unlawful intent required under the child abduction statute or that he did not know right from wrong. We believe it highly speculative to conclude that the absence of Dr. Lawler’s testimony had an effect on the judgment. See People v. Nevitt (1990), 135 Ill. 2d 423, 460-61, 553 N.E.2d 368, 383-84 (defense counsel’s failure to properly list witness on defendant’s answer to State’s discovery not ineffective assistance where testimony would not have affected the outcome of the trial).

Additionally, defendant asserts that the question the jury asked the judge during deliberations clearly demonstrated that the jury wanted to find defendant not guilty. During the course of its deliberations, the jury sent the following question to the trial judge:

“Is there a technical reason why character witnesses for Mr. Patten were not brought in by the defense, or was that simply the defendant’s choice — overlooked?”

After discussing possible responses with defense counsel and the prosecutor, the trial judge sent back the following answer:

“Please review your instructions. The court cannot answer your question. At the conclusion of the trial you may talk to the attorneys if you so desire.”

We do not agree with defendant that the jury’s question to the judge during deliberations presumptively establishes that it was searching for a way to acquit defendant. We cannot say that the jury’s question to the judge during deliberations as to why defendant did not present any character witnesses establishes a reasonable probability that had it heard Dr. Lawler’s expert psychiatric opinion its conclusion would have been different. We believe it more likely that the jury’s inquiry shows that it was looking for a way to mitigate what defendant had done. Mitigation, however, is irrelevant to defendant’s guilt or innocence. At best, Lawler’s testimony would have allowed the jury to acquit defendant based on compassion or sympathy for him. Under the law, however, a jury is not permitted to decide a case based on such factors. “A defendant has no entitlement to the luck of a lawless decisionmaker, even if a lawless decision cannot be reviewed.” (Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) Therefore, we conclude that defendant was not prejudiced by the failure of Dr. Lawler to testify.

Defendant’s second argument on appeal is that he was denied a fair trial because the trial judge failed to exercise his discretion and give a meaningful answer to the question asked by the jury during its deliberations. Defendant contends that the statement “[t]he court cannot answer your question” clearly illustrates that “the judge was laboring under the erroneous belief that he was without discretion” to answer the jury’s question. Defendant also argues that the jury’s question clearly evidenced its confusion as to defendant’s burden of proof and that referring the jurors to their instructions was “meaningless” because the instructions undoubtedly “had already been examined and explained to them.” Defendant asserts that “[h]ad the instructions been adequate, there would have been no confusion and hence no question.”

According to the record, after the question from the jury was received, the trial judge called defense counsel and the prosecutor into chambers and asked for their comments on possible responses. Defense counsel asked that the judge respond to the question by telling the jury that “character witnesses are not admissible in this type of offense.” He stated that throughout the trial whenever he asked a witness about whether defendant got along with his neighbors or others in the community, the judge sustained the prosecutor’s objections. Therefore, he argued that the court would not allow character witnesses to testify. He contended that the jurors’ question indicated that they feared that defendant did not present character witnesses because he could not get any such witnesses and “that’s not the truth at all.”

The prosecutor maintained that the judge’s prior rulings were proper and that the State would rely upon them. He asserted that defendant had no character witnesses because he listed none in his answer to discovery. Additionally, he argued that when defense counsel asked questions to witnesses concerning character and reputation, he did not lay the proper foundation.

The trial judge concluded that the defendant did not call character witnesses because he did not list or even suggest them in his answer to discovery. The judge determined that the jury was asking “why the defense presented certain evidence, and did not present other evidence.” Therefore, the judge concluded that he could not directly answer the jurors’ question. The judge decided to recommend to the jurors that they review the instructions. He stated that “[t]he instructions will tell the jury that the burden of proof is on the State, and the *** defendant is not required to prove his innocence.”

A trial judge has discretion to answer or refrain from answering a question from the jury and his decision, whatever it may be, will not be disturbed absent an abuse of that discretion. (People v. Reid (1990), 136 Ill. 2d 27, 38-39, 554 N.E.2d 174, 179.) However, a judge has a duty to give additional instruction “ ‘where clarification is requested, the original instructions are incomplete, and the jurors are manifestly confused.’ ” (Reid, 136 Ill. 2d at 39, 554 N.E.2d at 179, quoting People v. Gathings (1981), 99 Ill. App. 3d 1135, 1138, 425 N.E.2d 1313, 1316.) Additionally, “ ‘[w]here a jury has raised an explicit question on a point of law arising from the facts over which there is doubt or confusion, the court should attempt to clarify the question in the minds of the jury members’ ” (Reid, 136 Ill. 2d at 39, 554 N.E.2d at 179, quoting People v. Jackson (1980), 89 Ill. App. 3d 461, 479), even if the proper instructions were originally given to the jury. Reid, 136 Ill. 2d at 39, 554 N.E.2d at 179; People v. Morris (1980), 81 Ill. App. 3d 288, 291, 401 N.E.2d 284, 286.

On the other hand, a judge properly exercises his discretion and refuses to answer a jury’s question where the given instructions “sufficiently explain the relevant law” (People v. Shannon (1990), 206 Ill. App. 3d 310, 317, 564 N.E.2d 198, 203) in “clear and in common language which the jury could understand.” (People v. Petty (1987), 160 Ill. App. 3d 207, 213, 513 N.E.2d 486, 490.) Obviously, the judge is not required to answer a question from the jury if it involves “ramifications the judge could not properly go into” (People v. Walker (1975), 33 Ill. App. 3d 681, 686, 338 N.E.2d 449, 453) or if the answer would not be useful to the jury. (People v. Jones (1976), 40 Ill. App. 3d 771, 774, 353 N.E.2d 79, 82; Walker, 33 Ill. App. 3d at 686, 338 N.E.2d at 453.) It is reversible error, however, if a trial judge refuses to answer a jury question “in the erroneous belief that [he] has no discretion” to respond to the inquiry. People v. Queen (1974), 56 Ill. 2d 560, 565, 310 N.E.2d 166, 169.

We first address defendant’s contention that the second sentence in the trial judge’s response to the jury’s question shows that “the judge was laboring under the erroneous belief” that he did not have the authority to answer the jury’s question. The exchange between the trial judge and both counsel when determining how to respond to the jury’s question clearly illustrates that the trial judge understood that he had the discretion to answer or refrain from answering the jury’s question. The judge determined, in effect, that the jury was asking about defense trial strategy and properly concluded that he could not answer the jury’s question. He determined that it would be best to focus the jury’s attention upon the instructions which would inform the jury that the State bears the burden of proving defendant’s guilt and that the defendant does not have to prove his innocence. A more specific response to the jury’s question would not have assisted the jury in its deliberations and, in fact, would have involved “ramifications the judge could not properly go into.” (Walker, 33 Ill. App. 3d at 686, 338 N.E.2d at 453.) Therefore, the judge’s response was the product of a valid exercise of discretion and not based upon the mistaken belief that he had no discretion.

Defendant also asserts that the jury’s question clearly evidenced its misunderstanding of defendant’s burden in a criminal case. Therefore, the trial judge’s response that the jury should review the instructions was “meaningless” because the instructions were obviously inadequate; otherwise, “there would have been no confusion and hence no question.” If we understand defendant’s argument correctly, if the instructions were adequate, then the jury would not have been confused; however, since the jury was confused, the instructions must have been inadequate. At the instruction conference, however, defense counsel did not object to the instructions. The jury received Illinois Pattern Jury Instructions, Criminal, No. 2.03 (2d ed. 1981) on the burden of proof and the presumption of innocence. The instructions fully informed the jurors of the relevant law and were written in clear and in common language that they could understand. Numerous cases have held that a response to a jury question which refers the jurors back to clear instructions is a valid exercise of discretion. (Reid, 136 Ill. 2d at 39-40, 554 N.E.2d at 179-80; People v. Salazar (1991), 211 Ill. App. 3d 899, 912-13, 570 N.E.2d 802, 811; People v. Palmer (1982), 111 Ill. App. 3d 800, 806-07, 444 N.E.2d 678, 683; People v. Tostado (1981), 92 Ill. App. 3d 837, 839, 416 N.E.2d 353, 355; People v. Charles (1977), 46 Ill. App. 3d 485, 488-89, 360 N.E.2d 1214, 1216-17; Walker, 33 Ill. App. 3d at 685-86, 338 N.E.2d at 452-53.) Under the circumstances of this case, we hold that the trial judge did not abuse his discretion by refusing to answer the jury’s question and instead referring it to the jury instructions.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

O’CONNOR and MANNING, JJ., concur.