text:
    THE CARBONDALE LIQUOR CONTROL COMMISSION, Plaintiff-Appellant, v. THE ILLINOIS LIQUOR CONTROL COMMISSION et al., Defendants-Appellees.-THE CARBONDALE LIQUOR CONTROL COMMISSION, Plaintiff-Appellant, v. THE ILLINOIS LIQUOR CONTROL COMMISSION et al, Defendants-Appellees. — THE CARBONDALE LIQUOR CONTROL COMMISSION, Plaintiff-Appellant, v. THE ILLINOIS LIQUOR CONTROL COMMISSION et al., Defendants-Appellees.
    Fifth District
    No. 5 — 90—0779
    Opinion filed April 14, 1992.

      Michael L. Wepsiec, City Attorney, of Carbondale, for appellant.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Jerald S. Post, Assistant Attorney General, of Chicago, of counsel), for appellee Illinois Liquor Control Commission.
    Robert P. Schulhof, of Carbondale, for appellees Beer Barn, Inc., and Saluki Liquors, Inc.
    No brief filed for appellee 611 Barbeque, Inc.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Carbondale Liquor Control Commission (Local Commission or plaintiff) appeals from the trial court’s orders which held that the Local Commission had no standing to appeal the final orders of the Illinois Liquor Control Commission (State Commission). We affirm.

Defendants Beer Barn, Inc. (Beer Barn), Saluki Liquors, Inc. (Saluki), and 611 Barbeque, Inc., d/b/a King’s Wok (King’s Wok), each applied for retail package-liquor licenses with the Local Commission. The Local Commission denied the licenses, and defendants appealed to the State Commission. In August 1990, the State Commission reversed the Local Commission. The Local Commission filed petitions for rehearing pursuant to statute (Ill. Rev. Stat. 1989, ch. 43, par. 154). In the orders denying the petitions for rehearing, the State Commission stated:

“You are hereby notified that you have THIRTY-FIVE (35) days, from the date of service of this Order upon you, to commence an action for Administrative Review in the Circuit Courts of Illinois (Ill. Rev. Stat. ch. 110, Section 3 — 103, 1989).”

Plaintiff filed complaints for administrative review on September 19, 1990. Defendants in the Beer Barn and Saluki cases filed motions to strike and/or dismiss the complaints. In addition to a motion to strike and/or dismiss the complaint filed by the State Commission in the King’s Wok case, King’s Wok filed a motion to dismiss the Local Commission’s complaint. The circuit court heard arguments on the motions in the Beer Barn and Saluki cases, and on November 9, 1990, entered an order granting the motions to strike the complaints. In its order the trial court found that the plaintiff did not have standing to seek administrative review. On November 19, 1990, the circuit court entered an order in the King’s Wok case dismissing the plaintiff’s complaint for administrative review because

“the issue of jurisdiction and standing raised by the motions in the instant case are the same issues raised in 90 — MR—44 and 90 — MR—46 in which this Court previously has heard arguments and later ruling thereon. *** [T]his Court finds as a matter of law that the plaintiff herein does not have standing to bring the instant Administrative Review action.”

The Local Commission appeals from the court’s orders entered in each of the three cases.

The circuit court, in dismissing the complaints for administrative review, relied upon Greer v. Illinois Liquor Control Comm’n (1989), 185 Ill. App. 3d 219, 541 N.E.2d 216, appeal denied (1989), 128 Ill. 2d 663, 548 N.E.2d 1068. The Local Commission argues that Greer is inapplicable to the instant case because the facts in Greer are distinguishable from those in the instant case. The Local Commission also contends that Greer does not reflect the legislative intent of section 7 — 11 of the Liquor Control Act of 1934 (Ill. Rev. Stat., 1990 Supp., ch. 43, par. 154a). Finally, the Local Commission argues that to deny administrative review in this case would result in an unredressed violation of the Illinois constitutional provision relating to home rule powers.

Regarding plaintiff’s first point, we find the holding in Greer applicable to the case at bar. The plaintiff Greer, acting in his capacity as the liquor control commissioner for the City of Wood Dale, appealed from a judgment of the circuit court which affirmed a decision of the State Commission vacating a fine levied by Greer against the Brookwood Country Club. On appeal it was determined that as the trial court lacked jurisdiction to hear the case, the appellate court was also without jurisdiction. The appellate court vacated the trial court’s judgment and dismissed Greer’s appeal. The court held that the local liquor control commission is not a party aggrieved by reversal of its own administrative decision by the State Commission because it is a quasi-judicial body and has not been given a statutory grant of authority to seek administrative review.

The Local Commission argues that it did not act in a quasi-judicial capacity here, and therefore, Greer does not apply. Contrary to plaintiff’s assertions, however, the Local Commission does function in a quasi-judicial role. The Local Commission argues that because it conducted no hearings on a complaint, it acted in a quasi-executive role and not in a quasi-judicial capacity. Such an argument is meritless as it fails to consider the primary role of the Local Commission. As pointed out in Greer, the Local Commission by statute exercises quasi-judicial powers and has the authority to conduct hearings on complaints. “[T]he local commissioner’s action in filing a complaint does not detract from his primary function as a quasi-judicial body.” (Emphasis added.) Greer, 185 Ill. App. 3d at 222-23, 541 N.E.2d at 218.

As set forth in Greer:
“A circuit court has the power to review administrative actions only as provided by law (Ill. Const. 1970, art. VI, §9), and article III of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, pars. 3 — 101 through 3 — 112) sets out the procedure for such administrative review. *** An administrative decision is defined as ‘any decision, order or determination of any administrative agency rendered in a particular case, which affects the legal rights, duties or privileges of parties.’ (Ill. Rev. Stat. 1985, ch. 110, par. 3 — 101.) The right to seek review of an administrative decision is limited to parties of record in the proceeding whose rights, privileges or duties are affected by the decision. O’Hare International Bank v. Zoning Board of Appeals (1972), 8 Ill. App. 3d 764, 766, 291 N.E.2d 349, 351.” (Emphasis added.) Greer, 185 Ill. App. 3d at 221, 541 N.E.2d at 217-18.

The Local Commission argues that notwithstanding the Greer decision, it must be considered to be a party whose duties are affected by the decision of the State Commission. We disagree.

The case of Speck v. Zoning Board of Appeals (1982), 89 Ill. 2d 482, 433 N.E.2d 685, relied on in Greer, is authoritative in addressing the issue at bar. Speck determined that a zoning board of appeals did not have standing to pursue an appeal from a circuit court judgment which reversed the board’s decision. The supreme court held that the zoning board lacked standing to appeal because the board’s duty was to conduct hearings and render decisions, and it had not been given a statutory grant of authority to appeal. Based upon the reasoning in Speck, we conclude that the Local Commission’s responsibility to protect the public interest does not authorize it to act as a representative of the public for the purpose of vindicating its own decision on appeal. See Speck, 89 Ill. 2d at 486, 433 N.E.2d at 687.

The Local Commission next argues that to deny it standing to appeal would be contrary to the legislative intent of section 7 — 11 of the Liquor Control Act of 1934.

“Judicial review. All final administrative decisions of the State Commission under this Act shall be subject to judicial review pursuant to the provisions of the Administrative Review Law and the rules adopted pursuant thereto. Judicial review may be requested by any party in interest, including but not limited to the local liquor control commissioner. The term ‘administrative decision’ is defined as in Section 3 — 101 of the Code of Civil Procedure.” (Emphasis added.) (Ill. Rev. Stat., 1990 Supp., ch. 43, par. 154a.)

That portion of the statute which is emphasized was added by Public Act 86 — 1279 and became effective January 1, 1991, which is subsequent to the circuit court’s dismissal of the Local Commission’s complaints for lack of standing.

Plaintiff points out that section 7 — 11 (Ill. Rev. Stat., 1990 Supp., ch. 43, par. 154a) provides that “all final administrative decisions *** shall be subject to judicial review” (emphasis added), and argues that the word all demonstrates that the legislature intended that local commissions have the right to seek review. We disagree.

The primary rule of statutory construction is that the court give effect to the intent of the legislature. When construing a statute the court should first look to the language of the statute and give the terms therein their plain and ordinary meaning. (People v. Ullrich (1990), 135 Ill. 2d 477, 483, 553 N.E.2d 356, 359.) Reading the word all in the context of the entire sentence from which it is taken, it is clear that judicial review of administrative decisions is governed by the “provisions of the Administrative Review Law and the rules adopted pursuant thereto.” (Ill. Rev. Stat., 1990 Supp., ch. 43, par. 154a.) As previously discussed, the right to seek review of an administrative decision is limited to parties of record whose rights, privileges or duties are affected by the decision. (Greer, 185 Ill. App. 3d at 221, 541 N.E.2d at 217, citing O’Hare, 8 Ill. App. 3d at 766, 291 N.E.2d at 351.) The Local Commission is not a party aggrieved by reversal of its own administrative decision because it is a quasi-judicial body and has not been given a statutory grant of authority to seek administrative review. This conclusion is consistent with the plain and ordinary meaning of section 7 — 11 as it existed prior to the recent amendment of that statute.

Plaintiff maintains that the amendment to section 7 — 11 was not intended to change the law but was merely a clarification of existing law, as evidenced by the fact that the amendment was adopted soon after Greer. Plaintiff contends that the amendment establishes that the legislature always intended for the Local Commission to have the right to seek administrative review of the State Commission’s decisions. Generally, a material change in the language of an unambiguous statute creates a presumption that the amendment was intended to change the law. (State v. Mikusch (1990), 138 Ill. 2d 242, 252, 562 N.E.2d 168, 172.) We do not find the language of section 7 — 11 as it existed prior to the statutory amendment to be ambiguous or otherwise unclear. “When the import of the original statutory language is clear, the court has declined to view an amendment as simply clarifying the legislature’s intention.” (Mikusch, 138 Ill. 2d at 252, 562 N.E.2d at 172, citing People v. Hare (1988), 119 Ill. 2d 441, 519 N.E.2d 879.) Based on the foregoing, we cannot find that the Greer decision does not reflect the legislative intent with regard to section 7 — 11 as it existed prior to the statute’s amendment.

Finally, the Local Commission argues that the State Commission’s decision violates the home rule provision of the Illinois Constitution. (Ill. Const. 1970, art. VII, §6.) Carbondale city council ordinance number 85 — 27 sets out the powers and duties of the Local Commission. One of the duties entrusted to the Local Commission is to consider the best interests of the City of Carbondale. The Local Commission contends that if it is denied the right to appeal the State Commission’s decision the City of Carbondale’s home rule authority is unconstitutionally overridden.

Liquor control is subject to concurrent jurisdiction between the State and local units of government. (Easter Enterprises, Inc. v. Illinois Liquor Control Comm’n (1983), 114 Ill. App. 3d 855, 858, 449 N.E.2d 1013, 1016.) Home rule municipalities may legislate freely in the area of liquor control except as restricted by the State pursuant to the home rule provisions of the 1970 Illinois Constitution, article VII, section 6. (Easter, 114 Ill. App. 3d at 858, 449 N.E.2d at 1016; see also Liquor Control Comm’n v. City of Calumet City (1975), 28 Ill. App. 3d 279, 328 N.E.2d 153.) As discussed previously, the Local Commission is a quasi-judicial body and was not given statutory authority to seek administrative review of the State Commission’s decisions. (Greer, 185 Ill. App. 3d at 223, 541 N.E.2d at 219.) It is clear from the applicable State statute (Ill. Rev. Stat. 1989, ch. 43, par. 154a) that the Local Commission is without standing to appeal the administrative decision. We cannot find that the Local Commission’s lack of standing is contrary to the Liquor Control Act of 1934 or to the home rule provision of the Illinois Constitution.

For the foregoing reasons, the circuit court of Jackson County is affirmed as to cases numbered 90 — MR—44, 90 — MR—46 and 90— MR-45.

Affirmed.

GOLDENHERSH, P.J., and RARICK, J., concur.


source: Caselaw Access Project

author: JUSTICE HAASE

license: Public Domain

text:
    WILLIAM E. IMES, Plaintiff-Appellant, v. PHILIP E. KOENIG, Special Adm’r of the Estate of John H. Trussen, Deceased, et al., Defendants-Appellees.
    Third District
    No. 3-91-0436
    Opinion filed April 17, 1992.

      Jerome Mirza & Associates, Ltd., of Bloomington (Eileen M. O’Sullivan, of counsel), for appellant.
    Stuart R. Lefstein, of Katz, McAndrews, Balch, Lefstein & Fieweger, P.C., of Rock Island (Robert T. Park, of counsel), for appellees.
   JUSTICE HAASE

delivered the opinion of the court:

The plaintiff, William Imes, was driving his automobile in Kewanee, Illinois, when he struck a parked semitrailer truck owned by the Standard Trucking Company. At the time of the accident, the truck was parked on Madison Avenue, a two-lane residential street. The plaintiff brought the present negligence action against the defendant trucking company, Standard Trucking Company and the truck driver, John Trussen. According to the plaintiff, the semitrailer was parked on Madison Avenue in such a way so as to reduce the usable portion of the roadway to less than 18 feet, in violation of the City of Kewanee’s Municipal Code. The action proceeded to trial and the jury entered a verdict in favor of the plaintiff for $235,000, reduced by 50% for comparative negligence to $117,500. Following the jury’s verdict, the defendants moved for a judgment notwithstanding the verdict. The trial court granted the defendants’ motion and entered judgment in favor of the defendants. The plaintiff appeals. The defendants cross-appeal.

John Trussen was a truck driver for the Standard Trucking Company. On December 1, 1980, Trussen parked his truck in front of his house at 712 Madison and went inside. Trussen parked his truck in the late evening, close to dusk. At approximately 5 p.m., the plaintiff went to the laundromat with a friend, Chrystal Quanstrom. After they put some laundry in the washer, they decided to take a ride in the plaintiff’s auto. The laundromat was located on Madison Avenue, and the plaintiff and his guest drove north on Madison. The plaintiff had his headlights lit and his windshield wipers activated. The plaintiff proceeded down Madison at approximately 30 miles per hour. Quanstrom was seated in the passenger side of the car and was looking straight ahead. When the auto was approximately a car length away from the back of the defendant’s truck, Quanstrom saw the truck for the first time and yelled “A truck, the truck there.” The plaintiff then yanked the wheel to the left but was unable to avoid hitting the truck. According to Quanstrom, the truck was a car width and a half wide and was right in front of the plaintiff’s auto. Both the plaintiff and Quanstrom sustained serious injuries in the collision.

At the close of the plaintiff’s case in chief, the defendants moved for a directed verdict. The defendants argued they were entitled to a directed verdict because the plaintiff failed to present any evidence of a violation of the Kewanee Municipal Code. The court denied the defendants’ motion. The court ruled that although the plaintiff failed to present any evidence of a code violation, the plaintiff should be allowed to amend his pleadings to conform to the proofs.

The plaintiff then amended his pleadings to allege that the truck was covered with dirt and unreasonably obstructed the traffic lane he was traveling. According to the plaintiff’s amended complaint, the defendants failed to exercise ordinary care by failing to keep the truck’s rear reflectors visible while it was parked on a two-lane residential street at night. The plaintiff claims that motorists do not normally expect to encounter a semitrailer truck parked on a residential street at night without some type of visible reflective equipment.

The jury entered a verdict in favor of the plaintiff. The trial court entered judgment n.o.v. for the defendants. The plaintiff now appeals. The plaintiff argues the trial court erred in granting a judgment n.o.v. for the defendants. The defendants argue (1) that the proximate cause of the complained-of collision was the plaintiff’s negligent driving, not the condition or parking place of the truck; (2) that drivers in this State are required to keep a proper lookout for vehicles and to decrease speed or alter direction so as to avoid colliding with them (see Ill. Rev. Stat. 1981, ch. 951/2, par. 11 — 601(a)); (3) that because no evidence was presented that the truck was illegally parked, this court should hold as a matter of law that the defendants cannot be held liable; and (4) that motorists are under no common law or statutory duty to keep their vehicles clean, and that imposing such a duty would thrust an impossible burden upon motorists of this State; “any vehicle driven in the winter in Illinois will not stay clean for long, regardless of how frequently it is washed.”

In Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, our supreme court noted that judgments n.o.v. ought to be entered “only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on the evidence could ever stand.” (37 Ill. 2d at 510.) The plaintiff claims the trial court misapplied the Pedrick criteria. We disagree.

No evidence was presented that the truck in question was parked in an illegal or unsafe manner. There is no common law or statutory duty that requires motorists to keep parked vehicles clean. For this court to impose such a duty would be an unwarranted extension of the common law. It would place an almost insurmountable burden upon the owners of parked vehicles. It may be true that motorists do not expect a semitrailer truck to be parked on a residential street, but this alone does not form a sufficient basis to impose liability on the defendants.

Drivers in this State are under an obligation to avoid colliding with other vehicles and to operate their automobiles in a reasonable manner, with due regard for the weather conditions prevailing at the time of driving.

“No vehicle may be driven upon any highway of this State at a speed which is greater than is reasonable and proper *** the applicable maximum speed limit does not relieve the driver from the duty to decrease speed when * * * special hazard exists "with respect to pedestrians or other traffic or by reason of weather or highway conditions. Speed must be decreased as may be necessary to avoid colliding with any person or vehicle ***.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 951/2, par. 11— 601(a).

It is clear from the evidence adduced at trial that the plaintiff did not operate his automobile with due regard for the weather conditions at the time of the collision. At trial the plaintiff testified that it began raining harder as he proceeded down Madison Avenue and he only became aware of the truck’s presence after Quanstrom screamed. Quanstrom stated that the car was travelling at approximately the posted speed limit, 30 miles per hour, when she saw the truck. According to Quanstrom, she was looking straight ahead while the auto proceeded down Madison Avenue and only noticed the truck when it was approximately one car length away. Likewise, the plaintiff testified that he was looking straight ahead prior to the collision and did not notice the parked truck. If visibility at the time of the collision was so poor that the plaintiff did not notice the truck until his passenger screamed, it is clear that the plaintiff was driving too fast for the weather conditions. (Masotti v. Console (1990), 195 Ill. App. 3d 838, 552 N.E.2d 1292 (a person can be driving under the speed limit and still be driving too fast for conditions).) When this fact is coupled with the fact the truck was legally parked, we feel the nonliability of the defendants has been established as a matter of law.

Although it is difficult to discern why the trial court failed to direct a verdict for the defendants at the close of the plaintiff’s case in chief, the court did not commit error in entering a judgment n.o.v. Having resolved the present dispute in favor of the defendants, the points raised in the defendants’ cross-appeal are moot and need not be addressed.

Accordingly, the judgment of the circuit court of Henry County is hereby affirmed.

Affirmed.

McCUSKEY and SLATER, JJ., concur.


author: JUSTICE WOODWARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN BUSH, Defendant-Appellant.
    Second District
    No. 2—90—0489
    Opinion filed April 9, 1992.

      G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender’s Office, of Elgin, Theodore A. Gottfried, of State Appellate Defender’s Office, of Springfield, and Bruce H. Bornstein, of Chicago, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOODWARD

delivered the opinion of the court:

Defendant, John Bush, appeals from a jury verdict finding him guilty of home invasion and aggravated battery. The trial court sentenced defendant to a six-year term of incarceration. On appeal, defendant argues that the trial court committed three errors, namely: (1) abusing its discretion and committing prejudicial error in submitting a non-Illinois Pattern Jury Instruction (IPI) to the jury; (2) allowing the unrelated statement of a codefendant to go to the jury; and (3) allowing prejudicial evidence to be heard by a jury.

The following testimony was adduced at trial. On August 30, 1989, Joyce Fay lived in her Carpentersville residence with her 14-year-old son, Michael Cuniff, and her two daughters, Rebecca and Christy, 16 years old and IV2 years old, respectively. Also present in the house that night were John McPhee, Rebecca’s 21-year-old boyfriend, and Chris and Holly Huber; friends of one of her daughters, both 19 years old. Chris and Holly had lived at the Fay residence for about two months. Joyce was awakened by noises, and upon going downstairs, she saw five or six men beating up McPhee. She observed one of the men holding a piece of wood. McPhee was being struck about the body and on the head. The man who was hitting McPhee on the head pushed Joyce back. She fell against the wall and scraped her elbow but required no medical treatment. Her daughter, Rebecca, had a welt on her arm and a swollen jaw, and McPhee was bleeding from the head and had sustained bruises. Joyce had not given the men permission to be in her home or to stay there. After the group left, she observed the front door had little dents in it, and the area by the lock was apparently tampered with. Joyce did not identify defendant as being one of the individuals striking McPhee.

Mike Cuniff was sleeping next to the front door on August 30. In the very early morning, he heard a knock at the door and saw four or five people running into the house. Defendant had a crowbar, while another of the men had a stick and another had an aluminum object. Mike did not give any of the individuals permission to be in the house, nor did he hear anybody else give them permission. He told them to leave; they refused to leave until they got back their money from Mike Ferraro, who was also in the house. Mike Cuniff did not yell for his mother or anybody else in the home. During the fight, defendant had Ferraro around the neck, and McPhee came out of the bedroom. Defendant tried to hit Ferraro, and McPhee then grabbed defendant. Then everyone started punching McPhee. Mike Cuniff did not see the defendant hit McPhee, who was struck by the person carrying the stick. McPhee was bleeding from the head and had bruises on his body.

Carpentersville police officer Salvator Macaluso testified that the front door of the residence had been damaged. The inside door jamb and striker plate had been forced. John McPhee was bleeding from a head laceration, and a girl had a welt on her arm. The police report prepared by Officer Macaluso regarding the incident did not indicate the point of entry or type of lock. His report also did not indicate the front door had been damaged.

Rebecca Cuniff came out of her bedroom and saw a group of men around Ferraro. She told them to get out because she was afraid her mother was going to get up. Ferraro was pinned up against the wall, but there was no fighting prior to McPhee coming out of the bedroom. The men were talking to Ferraro. It was only after McPhee had come out of the bedroom that the fighting started. Rebecca could not identify the man with the tire iron, nor could she identify the man carrying a piece of wood. She did not see McPhee hit with the tire iron or piece of wood because she was trying to pull people off McPhee. Eventually, all the men then left the residence except one who was still fighting with McPhee. One of the men who had left came back into the house and struck McPhee in the head. Both men then left.

John McPhee testified that he was sleeping with Rebecca in her bedroom when he was awakened by the sound of running feet in the hallway. He saw Ferraro surrounded by a group of men, one carrying a club and another holding a tire iron. The men were talking to Ferraro. Ferraro was then punched by several of the men, and John jumped into the fight. He was hitting and punching and was being hit and kicked. John was hit by the tire iron across the legs and by a club across the head, a blow which required 12 stitches to close. Eventually, all of the men left except one who was still fighting with him. The man with the club came back into the house and struck him. Both men then departed. John could not identify any of the men with whom he was fighting.

The State then called Matthew Huisel, who was also arrested and charged with home invasion and aggravated battery as a result of the incident. He pleaded guilty to a reduced charge of battery and was placed on probation for 24 months and sentenced to the county jail for six months, serving four months.

On August 30, 1989, Huisel was with a group of men and women, including defendant and Ferraro. Ferraro was given $900 by the group to buy marijuana. He left with the money but did not return. Most of the group then drove to the Fay residence, believing that was where Ferraro had gone. Defendant had a tire iron, and Jonathan Carter had a stick. Arriving at the Fay residence, Huisel and the others looked through the windows and saw Ferraro.

Several men were let into the Fay residence by the nephew of the owner (Chris Huber); they found Ferraro in the basement. Huisel was the last of the group to enter the home. Ferraro only had some of the money previously given to him, so an argument started. A curly-haired man (McPhee) came out of a bedroom and tackled two of the men in the group, and a fight started. The fight lasted 5 to 10 minutes. They eventually recovered $300 from Ferraro. Huisel did not see defendant hit anyone.

The State sought to use a prior written statement made by Huisel to impeach his testimony. Defendant’s objection to the State’s use of said statement was overruled. The State then showed Huisel the four-page-long statement that he made to the Carpentersville police the day of his arrest and that he had signed. On page three, he indicated that the curly-haired man (McPhee) was hit on the head by defendant. On page four, Huisel stated that he was not invited into the home by a relative and that he did not think any of the others were invited into the home.

This statement was admitted into evidence by the trial court with no objection by defendant. Over defendant’s objection, the trial court allowed the entire four-page statement to be given to the jury during its deliberations.

Testifying on his own behalf, defendant stated that on August 30, 1989, he, along with seven others, went to a Carpentersville residence at about 2 a.m. to find Ferraro and get back money they had given him. He did not know how much money the group had given to Ferraro. Defendant went into the home to get the money, not to beat up anyone who was in the home. They were let into the home by Chris Huber. Defendant had a tire iron with him but did not strike anyone while inside the house. He brought the tire iron to protect himself. When entering the home, he did not break or damage the front door. While defendant was in the hallway, McPhee came out of a bedroom and started punching Jonathan Carter, who carried a wooden stick into the house. McPhee was hit in the head by a wooden stick, but defendant saw no blood on him. Defendant saw no injuries to McPhee.

Defendant was convicted on one count of home invasion and one count of aggravated battery of John McPhee and found not guilty of aggravated battery of Mike Cuniff. The trial court denied defendant’s motion for a new trial. Defendant was then sentenced to six years’ imprisonment on the home invasion charge and two years’ imprisonment on the aggravated battery charge, the sentences to run concurrently. This timely appeal followed.

We first address defendant’s contention that the trial court abused its discretion by submitting to the jury a non-IPI instruction on home invasion.

The trial court gave the jury the following standard IPI instruction on home invasion:

“A person commits the offense of home invasion when he, not being a police officer acting in the line of duty, without authority, knowingly enters the dwelling place of another when he knows or has reason to know that one or more persons is present, and while armed with a dangerous weapon he uses force or threatens the imminent use of force upon any person within the dwelling place, whether or not injury occurs.” Illinois Pattern Jury Instructions, Criminal, No. 11.21 (2d ed. 1981).

Over defendant’s objections, the trial court also gave to the jury the following non-IPI instruction regarding home invasion:

“For purposes of the offense of Home Invasion, an entry into the dwelling in question is unauthorized even when initially invited, when the defendant or one for whose conduct he is legally responsible commits illegal acts within the dwelling.”

Supreme Court Rule 451 (134 Ill. 2d R. 451), reads in pertinent part:

“Whenever Illinois Pattern Jury Instructions, Criminal (2d ed. 1981) (IPI Criminal 2d), contains an instruction applicable in a criminal case, giving due consideration to the facts and the governing law, and the court determines that the jury should be instructed on the subject, the IPI Criminal 2d instruction shall be used, unless the court determines that it does not accurately state the law. Whenever IPI Criminal 2d does not contain an instruction on a subject on which the court determines that the jury should be instructed, the instruction given on that subject should be simple, brief, impartial, and free from argument.” 134 Ill. 2d R. 451.

Defendant initially argues that the trial court made no finding that the IPI instruction did not accurately state the law which, defendant contends, the court must do under Rule 451. A close review of the record demonstrates that the trial court analogized the case before it to one “where — in a burglary where originally *** the person entered the premises because it was a public place, doors were open and public was invited in, but once they got in, went in with the intent to steal something, so it made the entry unlawful, even though it was open to the public.” So finding, the trial court overruled defendant’s objection to the disputed instruction. Given this record, we determine that the trial court did find that, in accordance with Rule 451 (134 Ill. 2d R. 451), the IPI instruction needed the amplification found in the subject non-IPI instruction.

Further, defendant argues that a non-IPI instruction should only be given where there is no IPI instruction which accurately and precisely states the applicable law. (People v. Haywood (1980), 82 Ill. 2d 540.) Defendant contends that the IPI instruction was the only appropriate one to be given to the jury regarding home invasion. Defendant further maintains that the non-IPI instruction given was not a settled statement of law and that it directed the jury to find that an authorized entry becomes unauthorized once illegal acts are committed within the dwelling. Thus, defendant concludes that due to this non-IPI instruction, the jury was precluded from finding that the entry was authorized if defendant had no intent to commit illegal acts at the time of entry, or if defendant’s intent to commit the illegal acts was formed after a lawful entry.

In support of this argument, defendant cites People v. Scott (1982), 108 Ill. App. 3d 607, and People v. Medreno (1981), 99 Ill. App. 3d 449. The Medreno court held that the offense of home invasion requires proof that upon entry the defendant had the intent of threatening or using force. In Scott, the trial court held that home invasion makes criminal the conduct of unauthorized entry of a dwelling for the purpose of threatening or using force. In refusing to follow People v. Fisher (1980), 83 Ill. App. 3d 619, the Scott court noted that Fisher placed heavy reliance on the fact that the defendants entered the victim’s apartment with the felonious intent to commit burglary, even though the entry was with the consent of the victim. Thus, the entry was not authorized for the concealed criminal purposes for which the defendants actually came.

Defendant argues that in the instant cause, like Medreno and Scott, but unlike Fisher, there was no felonious intent or concealed purpose by the defendant at the time of entry; he was there simply to get the money back from Ferraro, conduct which is not a crime. It was only after McPhee came out of the bedroom and started the fight that the victims were struck. Defendant contends this intent to use force clearly occurred after the defendant’s authorized entry and not at the time of entry.

In response, the State maintains that the IPI instruction fails to cover the instant situation, wherein defendant was originally invited into the residence but, when he began committing illegal acts within said dwelling, the authority to enter was essentially vitiated. In support of this argument, the State primarily relies on People v. Sanders (1984), 129 Ill. App. 3d 552, in which the trial court concluded that the statutory phrase “without authority” found both in the burglary and home invasion statutes should have the same meaning. In Sanders, a codefendant was given permission to enter the victims’ home for the purpose of spending the night. However, the reviewing court held that the codefendant exceeded this authority when he admitted defendant and other assailants for the purpose of robbing said victims. Consequently, the Sanders court found the consent for the entry was vitiated. In so finding, it distinguished the above-cited case of People v. Scott (1982), 108 Ill. App. 3d 607, relied upon by defendant, by observing that in Scott the defendant’s acquittal on the burglary charge removed the intent necessary to convict for home invasion.

The State further cites People v. Hudson (1983), 113 Ill. App. 3d 1041, wherein the authorization given to defendant and his friends to enter was limited to the purpose of a social visit, and once that authority was exceeded by their assault upon the owner, the consent for the entry was vitiated.

The State also cites People v. Davis (1988), 173 Ill. App. 3d 300. In Davis, the court relied upon Hudson and People v. Strong (1984), 129 Ill. App. 3d 427, and held that it was immaterial that the victim may have let the two assailants into his home. The important factor is that they exceeded any possible original authority granted to them when they terrorized Willis and his family. Thus, the Davis court concluded that defendants were properly found guilty of home invasion.

In People v. Haywood (1980), 82 Ill. 2d 540, a case involving a nonpattem jury instruction on the defense of involuntary intoxication, given over defendant’s objection, our supreme court wrote:

“Instructions found in IPI were drafted with the goal of sharply reducing the number of cases in which jury verdicts were set aside because of erroneous instructions. Consequently, each instruction was painstakingly drafted with the use of simple, brief and unslanted language so as to clearly and concisely state the law. To insure the use of such instructions, this court adopted Rule 451(a), which requires that an instruction in IPI be given where applicable, unless the court determines that the instruction does not accurately state the law. It is axiomatic, therefore, that the use of additional instructions on a subject already covered by IPI would defeat the goal that all instructions be simple, brief, impartial and free from argument.” Haywood, 82 Ill. 2d at 545.

In People v. Davis, cited above by the State, defendant argued that the trial court had the duty to draft and give an instruction regarding felony murder which allegedly amplified the relevant IPI instructions. The Davis court stated:

“In sum, the defendant is now asking us to supply what the drafting committee and the supreme court, which has passed on this instruction, have not deemed necessary.” (Davis, 173 Ill. App. 3d at 308.)

The Davis court later stated:

“The defendant argues that the instruction is necessary under the peculiar facts of this case. We reject that argument. If it is a necessary instruction in this case, it should be a necessary instruction in all felony-murder cases. *** Neither the drafters of the pattern instructions, nor the supreme court, which has passed on this instruction on a number of occasions, apparently think that the language proposed by the defendant here belongs in the pattern instruction. We are not prepared to encourage a revival of the discredited practice of culling passages from opinions and incorporating them into instructions contrary to the purpose for which the drafting committees on jury instructions were created and to the mandate of Rule 451.” 173 Ill. App. 3d at 310.

See also People v. Matthews (1984), 126 Ill. App. 3d 710, 714 (the practice of constructing jury instructions from language used by reviewing courts is frowned upon).

Initially, we note that none of the cases cited by the parties deals with a non-IPI instruction regarding home invasion. Thus, we have no direct guidance on this particular issue.

The IPI instruction carefully reflects the statutory definition of home invasion. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 11.) Under the statute, entry into the dwelling place must be without authority. Nothing in the statute addresses the concept of vitiating the authority to enter the dwelling place. Accordingly, the drafters of the pattern instructions and our supreme court view the IPI instruction as the one which accurately states the applicable law. Admittedly, several appellate cases have indicated that the consent to enter a dwelling place can be vitiated by subsequent criminal acts committed therein. Nevertheless, we will not use these cases to sanction the subject non-IPI instruction, which, as defendant contends, had the potential to confuse the jury regarding the elements of the offense of home invasion. Consequently, we find that the trial court committed reversible error in giving the subject non-IPI instruction to the jury.

Because the other issues raised by defendant may emerge upon retrial, we shall address them. Defendant contends that the trial court committed reversible error by allowing Huisel’s unredacted (unaltered) statement to go to the jury. To reiterate, Huisel made and signed a four-page statement to the police on the day the subject offense was committed. Over defendant’s objection, the trial court permitted the State to question Huisel about the prior statement. Huisel admitted to telling the police that he saw defendant hit McPhee in the head with a tire iron and that no one had been invited into the Fay residence. These statements conflicted with Huisel’s in-court testimony that he did not see defendant hit McPhee and that some of the group had been invited into the Fay residence. Defendant did not object to the statement’s admission into evidence but objected to its being physically submitted to the jury during its deliberations. The trial court overruled this objection, and the disputed document was given to the jury.

Defendant contends that only those portions of the statement which related to inconsistencies should have been given to the jury. He maintains that the only inconsistent statement concerned the striking of McPhee. The rest of the statement was either consistent with Huisel’s statement or was not the subject of the State’s examination. Thus, those segments should have been redacted.

The State primarily relies on People v. Salazar (1988), 126 Ill. 2d 424, wherein two prior taped statements were played in their entirety before the jury. Defense counsel had argued that only the inconsistent taped statements should have been played, while the State maintained that the jury should hear both the taped statements in their entirety. The Salazar majority appeared to accept the State’s theory that the inconsistent portions were admissible as substantive evidence, pursuant to section 115 — 10.1 of the Code of Criminal Procedure of 1963 (111. Rev. Stat. 1989, ch. 38, par. 115 — 10.1), while the consistent portions were admissible as reflecting on the witness’ credibility. In the appeal at bar, the State asserts that the identical reasoning is applicable here and, thus, Salazar completely disposes of this second issue. We do not agree.

Salazar’s facts are readily distinguishable. There, the issue was not whether the tapes or transcriptions thereof were to be sent back with the jury but rather whether said tapes were to be completely played in their entirety for the jury in the courtroom.

After reviewing the disputed statement, we find that generally it is consistent with Huisel’s in-court testimony. The primary inconsistencies, cited above, concerned whether the entry was authorized and whether defendant hit McPhee with a tire iron. We see no purpose in allowing the jury to see more of Huisel’s statement than that which deals with said inconsistencies. Accordingly, upon retrial, only those parts of Huisel’s statement which are inconsistent with his in-court testimony are eligible to go back to the jury.

Finally, defendant argues the trial court erred in allowing prejudicial evidence to be heard by the jury. Specifically, he maintains that, in a case where no one was charged with a drug offense, evidence of the drug transaction should have been kept from the jury. Defendant further contends that the drug references were irrelevant to the charges against him. The State replies that the drug deal “gone bad” provides motive for the alleged home invasion. We agree. Proof of motive is relevant in a criminal prosecution to show that defendant committed the offense charged, and evidence which demonstrates motive is admissible, even though it may reveal another offense. (People v. Leaks (1989), 179 Ill. App. 3d 231.) The retrieval of the money given to Ferraro sheds light on defendant’s motive to enter the Fay residence. Upon retrial, the State may make reference to defendant and others giving Ferraro $900 to buy marijuana.

Finally, we agree with defendant’s contention that the State improperly made reference to Ferraro’s testimony in its opening statement. Upon retrial, the State may only, refer to Ferraro’s testimony if it is definite that he will be called as a witness for the prosecution.

For reasons stated above, we reverse the judgment of the circuit court and remand the cause of action for further proceedings consistent with this opinion.

Reversed and remanded.

GEIGER and BOWMAN, JJ., concur.


author: JUSTICE NICKELS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TALMAGE J. McDONALD, Defendant-Appellant.
    Second District
    No. 2—90—0835
    Opinion filed April 10, 1992.
    Rehearing denied May 13, 1992.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and James E. Wallis, of Granite City, for appellant.

      James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE NICKELS

delivered the opinion of the court:

After a trial in absentia, defendant was convicted of possession of a controlled substance with the intent to deliver (Ill. Rev. Stat. 1987, ch. 56V2, par. 1401) and, also in absentia, was sentenced to 10 years’ imprisonment. Defendant appeals, asserting that: (1) the trial court abused its discretion in denying defendant’s counsel’s request for a continuance; (2) the trial court failed to comply with the statutory requirement for a trial in absentia-, (3) the trial court’s explanation of defendant’s absence during voir dire confused the jury in light of the trial court’s later admission of evidence of defendant’s absence and the State’s rebuttal argument of such absence as circumstantial evidence of defendant’s guilt; (4) admission of such evidence and argument violated defendant’s constitutional right to remain silent; (5) the trial court abused its discretion in admitting evidence of other uncharged crimes; (6) the trial court abused its discretion in admitting into evidence defendant’s photograph; (7) defendant was not proved guilty beyond a reasonable doubt; (8) defendant was denied the effective assistance of counsel; and (9) the court abused its discretion in sentencing defendant to 10 years’ imprisonment. We affirm.

On October 27, 1989, special agents of the Du Page and Northeast Metropolitan Enforcement Groups, which are special drug enforcement units, entered defendant’s apartment pursuant to a search warrant. Failing to receive a response to their knocks and identification of themselves as police officers, the agents knocked down the front door of defendant’s apartment. When the agents entered the apartment, defendant was in the washroom approximately 15 feet from the living room. Defendant’s wife and three children were also home.

A closed canvas bag was on a table in the living room of defendant’s apartment. The contents of the bag included a canister of 10.6 grams of a white powdery substance containing cocaine, four bags of cannabis, smoking pipes, a grinder, a catch basin, inositol, plastic bags, a portable scale, and pharmaceutical seals, all of which, with the exception of the cannabis and pipes, are commonly used in drug trafficking. Specifically, a grinder and catch basin are used to cut cocaine with inositol, which is then weighed and packaged in small bags and sealed with the pharmaceutical seals. After being “Mirandized,” defendant admitted that he had been purchasing cocaine in half ounces for distribution to pay his debts.

Defendant appeared in court on four occasions prior to the beginning of trial, including the scheduled trial date. However, on the scheduled trial date after the court denied defendant’s counsel’s motion for a continuance, trial was postponed until the following morning to insure that sufficient jurors would be available.

When the case was called the following day, defendant failed to appear. During a brief recess, defendant’s counsel unsuccessfully attempted to ascertain why defendant was not present. However, he failed to contact defendant, who had moved without providing his new address to the court as required. A hearing was then held, and the trial court denied defendant’s counsel’s motion for a continuance and granted the State’s motion to proceed in absentia.

The court advised the prospective jurors that “you can’t consider the fact that [defendant] doesn’t appear or testify.” However, after jury selection was complete, the State filed a motion in limine seeking to introduce defendant’s absence as evidence of flight and evidence of the cannabis as other crimes evidence demonstrating intent. Over defendant’s counsel’s objection, the court found the other crimes evidence admissible and indicated that evidence of defendant’s flight or absence was admissible as evidence of a consciousness of guilt. The trial court also ruled, over defendant’s counsel’s objection, that defendant’s arrest photo cropped to remove any indication of its origin was admissible.

The State referred to the cannabis in its opening statement and called the deputy clerk to testify that an arrest warrant had been issued for defendant, who had failed to appear for trial although defendant had been present when the trial date was set. Defendant’s trial counsel argued in closing that there was no evidence of the reason for defendant’s absence, and, based solely on the evidence adduced, defendant’s death was an equally plausible explanation. In rebuttal, the State referred to defendant’s absence as “a piece of circumstantial evidence that you, ladies and gentlemen [of the jury], can use in deciding whether [defendant] has a consciousness of his own guilt. Why do you think he is not here? It is circumstantial evidence but it tends to show his guilt.”

The jury returned a guilty verdict, but defendant was not arrested until after his counsel’s post-trial motion attacking the court’s evidentiary rulings and the sufficiency of the evidence was denied and after defendant had been sentenced in absentia. A public defender’s subsequent motion for a new trial alleging defendant’s trial counsel had instructed defendant to absent himself from his trial was also denied after a hearing. The trial court found that defendant’s trial counsel’s denial that he gave such direction to defendant was more credible. This appeal followed.

The State correctly asserts that many of defendant’s alleged errors have been waived by defendant’s failure to assert such errors in his post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 186-87.) However, defendant asserts that the failure to preserve properly such issues in part denied him the effective assistance of counsel. We must thus consider the substance of defendant’s claims to determine if defendant was prejudiced by such alleged defective performance of his trial counsel. (Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064.) In addition, defendant asserts that the “plain error” doctrine (134 Ill. 2d R 615(a)) allows this court to notice errors affecting substantial rights despite a defendant’s failure to preserve properly such issues when “the evidence is closely balanced or where the error was of such magnitude that the accused was denied a fair trial.” (People v. Lucas (1981), 88 Ill. 2d 245, 251; see also People v. Young (1989), 128 Ill. 2d 1, 47.) Therefore, we will address each of the alleged errors raised by defendant. We begin with defendant’s assertion that the trial court abused its discretion in denying his trial counsel’s request for a continuance on the eve of trial.

A motion for a continuance is directed to the discretion of the trial court, which will not be reversed absent a showing of an abuse of such discretion. (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 4(e).) A court’s refusal to grant a continuance must in some way embarrass the defendant in his defense thereby prejudicing him before such abuse will be deemed to have occurred. (People v. Wilson (1963), 29 Ill. 2d 82, 92; People v. Arbuckle (1979), 75 Ill. App. 3d 826, 832.) Defendant’s trial counsel explained that his request for a continuance was for the purpose of seeking another attorney to second chair the trial due to the continuing illness of his law partner, which had been the basis of several prior requests for continuances. However, defendant’s trial counsel explicitly advised the court that he was able to proceed with trial despite his request for a continuance. Thus, defendant was neither embarrassed nor prejudiced by the court’s denial of his request for a continuance, and the trial court did not abuse its discretion in denying such request. We note that any alleged incompetence as a result of defendant’s trial counsel’s failure to obtain such continuance merged into the subsequent alleged trial errors asserted by defendant.

Defendant next contends that the trial court failed to comply with the statutory requirements mandated for a trial in absentia. Specifically, defendant asserts that the trial court was required to notify defendant by certified mail of the trial date. (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 4.1(a).) However, the statute provides:

“The court may set the case for a trial which may be conducted under this Section despite the failure of the defendant to appear at the hearing at which the trial date is set. When such trial date is set the clerk shall send to the defendant, by certified mail at his last known address indicated on his bond slip, notice of the new date which has been set for trial.” (Ill. Rev. Stat. 1987, ch. 38, par. 115-4.1(a).)

Thus, notice by certified mail is required only when the defendant was not present in court when the trial date was set. (People v. Velasco (1989), 184 Ill. App. 3d 618, 628-29.) Because defendant was present when his trial date was set, no such notice was necessary, and his second asserted error is without merit.

The third issue raised by defendant is that the trial court’s statement to the veniremen that as jurors they could not “consider the fact that [defendant] doesn’t appear or doesn’t testify” was confusing in the face of the eventual admission of evidence of defendant’s absence as circumstantial evidence of guilt. However, defendant ignores the context in which that statement was made. The court was explaining the State’s burden to prove defendant guilty beyond a reasonable doubt. That comment was preceded by “[t]he fact that should [defendant] not present any evidence, though he may not be present, do you still understand, and can you go along with the fact that it is still the burden of the People to prove [defendant’s] guilt by evidence beyond a reasonable doubt.” Such directions informed the jury that a finding of guilt could not be based on defendant’s absence alone. Thus, the cases cited by defendant, which condemned the trial court’s failure to give a requested jury instruction to minimize a defendant’s silence or a verdict based solely on a defendant’s absence, are not only inapplicable, but support the trial court’s statements. See Carter v. Kentucky (1981), 450 U.S. 288, 303, 67 L. Ed. 2d 241, 252, 101 S. Ct. 1112,1120; People v. Smith (1989), 189 Ill. App. 3d 80, 85.

The admission of evidence of defendant’s absence, as well as the State’s rebuttal argument of such evidence, are the basis of defendant’s fourth alleged error. A defendant has no constitutionally protected right not to appear at trial (Smith, 189 Ill. App. 3d at 85), and evidence of a defendant’s absence is proper as evidence of flight, which is admissible to show consciousness of guilt (People v. Garza (1989), 180 Ill. App. 3d 820, 826). Defendant apparently asserts a distinction between circumstantial evidence that tends to show a defendant’s guilt, which was the State’s argument, and evidence of a defendant’s consciousness of guilt as permitted in Garza. We not only fail to see such a distinction, but defendant fails to offer any authority for creating such a distinction. Absent both meaningful argument and authority, defendant has thus waived the issue. Fuller v. Justice (1983), 117 Ill. App. 3d 933, 942-43.

Additionally, we note that defendant’s counsel argued that the State had failed to offer any evidence of the reason for defendant’s absence and argued the possibility of defendant’s death as one explanation for his absence from trial. Thus, defendant’s trial counsel invited the State’s rebuttal, and no error from such rebuttal will be found. People v. Rader (1988), 178 Ill. App. 3d 453, 466.

Defendant also asserts that the trial court abused its discretion in admitting evidence of the cannabis found in defendant’s apartment as evidence of other uncharged crimes and in admitting defendant’s police photo, although cropped to remove any indication of origin. Issues of admissibility of evidence are committed to the sound discretion of the trial court, and such decision will not be reversed unless the erroneously admitted evidence manifestly prejudiced a defendant. (People v. Hayes (1990), 139 Ill. 2d 89, 130; People v. Bartall (1983), 98 Ill. 2d 294, 318.) Because both the admission of defendant’s photograph and the admission of evidence of other uncharged crimes are subject to the same standard of review, we will address these issues together.

Other crimes evidence is admissible if relevant for any purpose other than to show a defendant’s propensity to commit a crime (People v. Musitief (1990), 201 Ill. App. 3d 872, 876-77), and a continuous narrative of the arrest is admissible including connected crimes as part of the res gestae (Hayes, 139 Ill. 2d at 130-32; People v. Chambers (1989), 179 Ill. App. 3d 565, 583-84; People v. Sessions (1968), 95 Ill. App. 2d 17, 24). Therefore, evidence of the smoking pipes and cannabis recovered from defendant’s home was admissible as part of the narration of the sequence of events leading to defendant’s arrest.

Similarly, defendant’s assertion that the court abused its discretion in admitting his police photo, from which all indications of its origin had been removed, is without merit. To sustain a conviction, the State must prove beyond a reasonable doubt that the defendant was the perpetrator of the crime. (People v. Dante (1966), 35 Ill. 2d 538, 540; People v. Newbern (1989), 183 Ill. App. 3d 995, 997.) Because of defendant’s absence, the photographic identification was highly probative of the issue of identity.

Defendant argues, however, that the prejudice created by the introduction of such photograph into evidence outweighed its probative value. The cases relied upon by defendant are not controlling in this instance. Defendant’s photograph was taken at the time of his arrest for the present charges and not at the time of a prior "unrelated offense from which the jury could improperly infer a propensity towards crime. (See People v. Hudson (1972), 7 Ill. App. 3d 333, 336-37; People v. Hawkins (1972), 4 Ill. App. 3d 471, 473.) We have expressly rejected the per se rule of inadmissibility adopted in Hudson and Hawkins by the Appellate Court, Third District, as have other districts. (See People v. Wilson (1st Dist. 1988), 168 Ill. App. 3d 847, 851-52; People v. Smith (5th Dist. 1987), 160 Ill. App. 3d 89, 95-96; People v. Wheeler (2d Dist. 1971), 71 Ill. App. 3d 91, 97-98.) Rather, the introduction of such photos requires a balancing of the probative value against possible prejudice. (Wheeler, 71 Ill. App. 3d at 97-98.) However, prejudice from a “mug shot” taken at the time of a prior arrest is minimal and highly speculative. (People v. Warmack (1980), 83 Ill. 2d 112, 128-29 (exclusion of photo requires presumption that jury noticed prior date and based verdict on prior arrest rather than evidence at trial).) Thus, only when the evidence, “at best, only marginally proves [a defendant’s] guilt” is a court required to consider the prejudice from the introduction of a defendant’s “mug shot.” (People v. Arman (1988), 171 Ill. App. 3d 232, 241-42 (Freeman, J., dissenting from continued application of per se exclusion).) In this instance, the cropped photo, from which the jury could infer no prior arrest, had even less prejudicial impact. Therefore, the trial court did not abuse its discretion in finding that the significant probative value of defendant’s police photograph outweighed any minimal and speculative prejudice.

Defendant next asserts that the State failed to prove him guilty beyond a reasonable doubt. Defendant’s assertion is based on the State’s alleged failure to prove that the cocaine recovered from defendant’s apartment was in fact “knowingly” in defendant’s possession or that defendant had an “intent” to deliver such substance. However, the cocaine and drug paraphernalia were recovered from plain view on the table of defendant’s living room in his own home, at a time when defendant was a few feet away in another room. Absent other facts or circumstances, the mere presence of narcotics in premises under the control of a defendant, such as his home, is sufficient alone to create an inference of knowledge and possession. (People v. Nettles (1961), 23 Ill. 2d 306, 308-09; People v. Torres (1990), 200 Ill. App. 3d 253, 266.) Similarly together with the quantity of narcotics, the presence of drug trafficking paraphernalia routinely used to deliver drugs will support the trier of fact’s finding of the intent to deliver such drugs. (People v. Schaefer (1985), 133 Ill. App. 3d 697, 702-03.) Moreover, defendant admitted to the police that he had been selling cocaine to pay his debts. Thus, there was sufficient evidence from which the jury could find defendant guilty beyond a reasonable doubt.

Finally, defendant asserts that the trial court abused its discretion in sentencing him to 10 years’ imprisonment in the Department of Corrections. A trial court’s determination of the proper sentence will not be disturbed on appeal absent an abuse of discretion. (People v. Wilson (1991), 143 Ill. 2d 236, 250.) Such determination is entitled to great weight and deference because the trial court has the benefit of observing the defendant and hearing the evidence firsthand. (People v. Streit (1991), 142 Ill. 2d 13, 18-19.) A reviewing court must proceed with great care and caution and may not substitute its own judgment for that of the trial court. (Streit, 142 Ill. 2d at 19.) As long as the trial court does not rely on improper aggravating factors or ignore mitigating factors, any sentence within the prescribed statutory range will be deemed a proper exercise of the trial court’s discretion. (People v. Hernandez (1990), 204 Ill. App. 3d 732, 740.) The seriousness of the crime is not only a proper factor in aggravation; it is the most important factor. (Hernandez, 204 Ill. App. 3d at 740.) Rehabilitation must also be considered, but need not be given more weight in determining the appropriate sentence than the seriousness of the crime. (People v. Brajcki (1986), 150 Ill. App. 3d 506, 515.) Absent any indication in the record to the contrary, it is presumed that the trial court considered evidence presented in mitigation. (Torres, 200 Ill. App. 3d at 267; People v. Abrego (1986), 142 Ill. App. 3d 973, 986.) If the record contains a trial court’s articulation of factors in aggravation, the reviewing court may presume factors in mitigation were considered as well. People v. Bergman (1984), 121 Ill. App. 3d 100, 109.

Evidence presented in aggravation included defendant’s prior convictions of drug-related charges indicating an unlikelihood of rehabilitation, the seriousness of the offense, and defendant’s conduct since his arrest, specifically his flight and a threat made against one of the arresting officers during a chance encounter. The court also considered defendant’s presentence report. Although defendant’s trial counsel presented no additional evidence in mitigation, counsel argued the nonviolent nature of the crime, defendant’s devotion to his family, and defendant’s education as factors in mitigation.

The court specifically noted that defendant, whose college education was reflected in the presentence report, was in a better position to appreciate the dangers of drugs than many other offenders. So, too, contrary to counsel’s assertion that this was a nonviolent crime, drug trafficking is deemed among the most serious of offenses. Bergman, 121 Ill. App. 3d at 111.

Finally, defendant asserts the trial court ignored his family obligations as a factor in mitigation. Although the court indicated it could not consider the quality of defendant’s relationship with his family, evidence of defendant’s dependents was contained in defendant’s presentence report. Thus, we conclude that the court properly considered the hardship to defendant’s dependants. Torres, 200 Ill. App. 3d at 267; Abrego, 142 Ill. App. 3d at 986.

Defendant’s counsel’s limited ability to present evidence in mitigation was the result of defendant’s own willful failure to appear for trial and sentencing as well as defendant’s failure to advise the court of his change in address. Such loss of the ability to challenge evidence in aggravation or provide input to his attorney is merely an additional cost of defendant’s own conduct not warranting either the trial court’s sympathy or ours. People v. Burcham (1991), 208 Ill. App. 3d 939, 941.

Having addressed the substance of each of the alleged trial errors and finding them to be without merit, we also resolve defendant’s claim of ineffective assistance of counsel. Absent error, defendant suffered no prejudice from his trial counsel’s alleged defective performance. Because resulting prejudice to a defendant is an essential element of any claimed denial of the effective assistance of counsel (Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064), defendant’s final claim as well is meritless.

The judgment of the circuit court is affirmed.

Affirmed.

UNVERZAGT and GEIGER, JJ., concur.


author: JUSTICE RARICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD LEE WALKER, Defendant-Appellant.
    Fifth District
    No. 5—90—0822
    Opinion filed April 13, 1992.
    Daniel M. Kirwan and Janet Gandy Fowler, 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 Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

Defendant, Ronald Lee Walker, appeals both his conviction for first-degree murder after a jury trial and his sentence of natural-life imprisonment imposed by the circuit court of St. Clair County. We affirm.

On the evening of May 21, 1990, the victim, Henry (Steve) Johnson, and two friends drove to Elinois from Missouri in search of a particular tavern owned by another friend of the victim. The tavern, however, was closed for the evening. The three decided to drive around the area looking for another tavern but did not find any to their liking. They then decided to buy some alcohol for the ride back and started driving around East St. Louis looking for a liquor store. Eventually, they pulled into the parking lot of a store. The victim got out and went inside while his friends waited in the car. Defendant, who had been sitting outside the store, followed the victim inside. Defendant stood by the victim’s shoulder and watched while the victim paid for his purchases. The victim was carrying a large amount of money in his wallet. After completing his purchase, the victim walked back outside and started to get inside his car. Defendant, however, stood by the car door, preventing it from closing, pulled out a gun and demanded the victim’s money. The victim asked, “Why are you messing with me?” and the defendant shot him in the chest. Defendant again demanded the victim’s money and threatened to shoot the victim’s companions. As the victim attempted to get out his money, one of his friends reached over, grabbed the steering wheel, stepped on the gas pedal and drove out of the parking lot. The door of the car was still open, however, and the victim fell out on the street. Believing defendant was following them, the victim’s friends drove on to another area to call the police. Defendant was arrested shortly thereafter. The victim died at the scene from the gunshot wound. Defendant claimed at trial that the victim approached him in order to buy drugs, and when defendant told him he could not help him, the victim grabbed him by the shoulder and started coming at him. Defendant panicked and shot the victim. The jury found defendant guilty of first-degree murder.

Defendant raises two issues on appeal. For his first issue, defendant argues he was deprived of a fair trial when the trial court gave its own instruction to the jury over his objection. The jury originally had been instructed on first- and second-degree murder and involuntary manslaughter based on instructions number 7.01A, 2.011, 26.011 and 7.06A of the Elinois Pattern Jury Instructions, Criminal (2d ed. Supp. 1989) (hereinafter IPI Criminal 2d). During deliberations, however, the jury sent a note to the court asking for an interpretation of the law. Accompanying the note were two instructions: one defining first-degree murder (IPI Criminal 2d No. 7.01A (Supp. 1989)), and the second directing the jury to deliberate on first-degree murder, and if it concluded that the elements of first-degree murder had been proved, to determine whether the offense should be reduced to second-degree murder (IPX Criminal 2d No. 7.06A (Supp. 1989)). The trial court, noting the instructions were confusing, drafted a non-IPX instruction based on IPI Criminal 2d No. 7.02A (Supp. 1989), which read:

“To sustain the charge of first degree murder, the State must prove the following propositions:
FIRST: That the defendant performed the acts which caused the death of Henry Johnson; and
SECOND: That when the defendant did so,
1) he intended to kill or do great bodily harm to Henry Johnson;
or
2) he knew that his acts would cause death to Henry Johnson;
or
3) he knew that his acts created a strong probability of death or great bodily harm to Henry Johnson;
or
4) he was attempting to commit or was committing the offense of Armed Robbery.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.
The offense of second degree murder may not be based upon first degree murder under felony murder (paragraph 4).
If the second element of the first degree murder instruction is found to be based on paragraph four (4) ‘he was attempting to commit or was committing the offense of Armed Robbery’, then it is not necessary for you to consider the issue of second degree murder.
If the second element to the first degree murder instruction is found to be any one of the first three (3) paragraphs of the second element then you shall consider the issue of second degree murder, as provided in these instructions.”

Defendant believes this instruction unduly emphasized the offense of first-degree murder thereby giving the jury the impression it only had one option to consider to the exclusion of less serious alternatives in-eluding acquittal. Defendant therefore concludes he is entitled to a new trial.

We agree with the general proposition that when applicable, a trial court must use a pattern jury instruction in a criminal case if one exists, and that when there is no pattern jury instruction on a particular subject on which the court determines the jury should be instructed, the instruction given should be “simple, brief, impartial, and free from argument.” (134 Ill. 2d R. 451(a).) We also recognize, however, that the purpose of jury instructions is to guide the jury in its deliberations and to help it reach a proper verdict through application of legal principles to the evidence. (People v. Hester (1989), 131 Ill. 2d 91, 98, 544 N.E.2d 797, 801; People v. Singleton (1991), 217 Ill. App. 3d 675, 690, 577 N.E.2d 838, 848.) Consequently, when a jury raises an explicit question on a point of law, the trial court has a duty to attempt to clarify the issue in the minds of the jury even though the jury initially was given proper instructions. (See People v. Sandy (1989), 188 Ill. App. 3d 833, 842, 544 N.E.2d 1248, 1253; People v. Land (1975), 34 Ill. App. 3d 548, 550, 340 N.E.2d 44, 46.) Nothing in Rule 451(a) excuses the trial court from this obligation. See Land, 34 Ill. App. 3d at 551, 340 N.E.2d at 46.

We believe the supplemental instruction given here accurately stated the law and, contrary to defendant’s contention, did not overemphasize first-degree murder. Rather, the court’s instruction clearly delineated the choices available to the jury and alleviated confusion by informing the jurors they could not reach the issue of second-degree murder if they determined defendant was guilty of first-degree murder based on felony murder. The instruction further informed the jurors they could find the defendant not guilty if they determined the State had failed to prove any one of the elements beyond a reasonable doubt, or if they concluded the evidence established first-degree murder on a basis other than felony murder, they should consider the issue of second-degree murder. All but the last three sentences/paragraphs were from IPI Criminal 2d No. 7.02A (Supp. 1989), and the instruction as a whole was simple, brief and impartial. We therefore find no error in the trial court’s supplemental instruction given in response to the jurors’ question expressing their confusion about the instructions previously given them. (See People v. Stevenson (1990), 198 Ill. App. 3d 376, 386-87, 555 N.E.2d 1074, 1080; see also Sandy, 188 Ill. App. 3d at 842, 544 N.E.2d at 1253; cf. People v. Gathings (1981), 99 Ill. App. 3d 1135, 1137, 425 N.E.2d 1313, 1315-16 (instructions suggested defendant guilty of an offense; jury did not have acquittal as option); People v. Godbout (1976), 42 Ill. App. 3d 1001, 1009, 356 N.E.2d 865, 872 (numerous instructions calling particular attention to certain portions of evidence).) Moreover, the instructions as a whole properly instructed the jury on all theories and certainly did not emphasize first-degree murder more than a lesser offense or acquittal. (See Hester, 131 Ill. 2d at 98, 544 N.E.2d at 801; Singleton, 217 Ill. App. 3d at 690, 577 N.E.2d at 848.) Consequently, we affirm defendant’s conviction for first-degree murder.

Defendant next asserts his sentence of natural-life imprisonment is excessive and an abuse of the court’s discretion. Defendant believes the court, in fashioning his sentence, was primarily concerned with the seriousness of the offense and gave little credence to his rehabilitative potential in spite of his young age and lack of prior violent criminal record.

As we have stated before: “[T]he imposing of punishment is one of the most important and sensitive of judicial responsibilities and we, as a reviewing court, must give great weight to the judgment of the trial court. [Citation.] We therefore will modify a sentence only when ‘the punishment clearly departs from the spirit and purpose of fundamental law ***.’” (People v. Generally (1988), 170 Ill. App. 3d 668, 677, 525 N.E.2d 106, 111, quoting People v. Treadway (1985), 138 Ill. App. 3d 899, 904, 486 N.E.2d 929, 933.) The rationale for such a position is that the trial court is in a superior position to consider the particular factual circumstances of each case as well as the defendant’s credibility, demeanor, general moral character, mentality, social environment, habits and age. (See People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 884; People v. Singleton (1983), 124 Ill. App. 3d 386, 397-98, 464 N.E.2d 624, 631.) Age and rehabilitative potential are not the sole factors to be considered (see Generally, 170 Ill. App. 3d at 677, 525 N.E.2d at 111), nor is the court required to find a defendant has no rehabilitative potential before sentencing him to a term of natural life. People v. Chambers (1990), 200 Ill. App. 3d 538, 549, 558 N.E.2d 274, 282.

Here, defendant followed the victim inside the liquor store and watched him pay for his purchases. Observing the fact the victim had a large amount of cash in his wallet, defendant followed the victim back outside the store and demanded the money be turned over to him. When the victim questioned defendant, defendant shot him and then threatened to do the same to his friends. The victim handed over some money, but defendant still was not satisfied. After the companions fled, defendant threatened to kill anyone who revealed that he was the one who killed the victim. Clearly defendant’s actions were cold-blooded. After having already shot the victim, defendant showed no compassion and instead demanded more money and threatened others. Under such circumstances, the trial court was more than justified in believing defendant is a dangerous individual. We also find no error in the trial court stating it believed defendant had lied while testifying. Moreover, a sentencing court properly may consider what it believes to have been perjury committed by a defendant during trial as a factor affecting potential for rehabilitation. (Singleton, 124 Ill. App. 3d at 399, 464 N.E.2d at 632.) Finally, defendant has a lengthy criminal record and already has failed at several opportunities for rehabilitation. In view of the evidence at trial and defendant’s history and character, we cannot say the trial court abused its discretion in sentencing defendant to natural-life imprisonment. We reiterate it is not the province of this court to reduce a sentence merely as an act of judicial clemency. People v. Barber (1983), 116 Ill. App. 3d 767, 779, 452 N.E.2d 725, 733.

For the aforementioned reasons, we affirm the judgment of the circuit court of St. Clair County.

Affirmed.

GOLDENHERSH, P.J., and HARRISON, J., concur.


author: JUSTICE CHAPMAN

text:
    GLENN M. TWENHAFEL et al., Plaintiffs-Appellants, v. MISSOURI PACIFIC RAILROAD COMPANY, Defendant-Appellee.
    Fifth District
    No. 5—91—0230
    Opinion filed April 13, 1992.

      Terry N. Brown, of Brown & Gavin, of Belleville, for appellants.
    Thomas E. Jones and Leslie G. Offergeld, both of Walker & Williams, P.C., of Belleville, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

An automobile being driven by Mark Twenhafel collided with a Missouri Pacific freight train at a railroad crossing located in Gorham, Illinois. Twenhafel was severely injured. Mark Twenhafel and his parents filed a complaint against the defendant, Missouri Pacific Railroad Company, alleging that the following acts of negligence were the proximate cause of the collision:

“(a) Failed to provide warning of the presence of a train passing along the track, at a time reasonably sufficient for motorists approaching the grade crossing, at night, to stop prior to reaching the grade crossing;
(b) Failed to keep its right-of-way free from brush and trees that obstructed the presence of trains and their lights from the view of approaching motorists;
(c) Failed to construct and maintain the railroad right-of-way at grade, to Sandridge Township Road 281, so as to allow motorists, traveling at night, to view a train at the instant grade crossing;
(d) Failed to adequately inspect the grade crossing to discover its lack of continued safety for approaching and crossing motorists; and
(e) Failed to install crossing signals, lighting, or any device to adequately warn motorists, traveling at night, of the approach and presence of trains.”

The trial court granted the defendant’s motion for summary judgment, and plaintiffs appeal. Plaintiffs argue that the trial court erred because there were special circumstances requiring the defendant to erect additional warnings or signs at the railroad crossing in question.

The purpose of a summary judgment proceeding is to determine whether there are any genuine issues of material fact. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871.) A motion for summary judgment may be granted when the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005; In re Estate of Whittington (1985), 107 Ill. 2d 169, 483 N.E.2d 210.

Summary judgment is both “an aid in the expeditious disposition of a lawsuit” and “a drastic means of disposing of litigation.” (Purtill, 111 Ill. 2d at 240, 489 N.E.2d at 871.) When considering the pleadings, depositions, admissions, exhibits and affidavits on file, a court “must construe them strictly against the movant and liberally in favor of the opponent” and enter a summary judgment “only when the right of the moving party is clear and free from doubt.” Purtill, 111 Ill. 2d at 240, 489 N.E.2d at 871.

An examination of the record reveals that the collision occurred on a rainy and foggy night at a grade crossing located on Sand Ridge Township Road 281 (Township Road), about one-half mile west of Illinois Route 3. The Township Road generally runs in an east and west direction at the grade crossing. The railroad track generally runs north and south at the crossing. At the time of the collision the crossing had a cross-buck warning sign, but it was without flashing lights. There was no advance railroad-crossing traffic-warning sign, nor were there any warning signs painted on the pavement. The crossing at Illinois Route 3 immediately north of the Township Road crossing was posted with flashing lights.

John Schoonover’s deposition revealed that he was working as the brakeman in the caboose of the 52-car Missouri Pacific train. Schoonover had traversed this crossing hundreds of times during his career. He testified that at several times during the year the area would be foggy. On the night of the incident at bar it was foggy, rainy, and dark in the area of the crossing.

John Wesley Lambert was the engineer, and he testified that several times a year it is foggy and it can be difficult to see in the area of the crossing. Lambert testified that on the evening in question the train’s fireman sounded the train whistle as the train approached the crossing, just as he always did. Lambert testified that no extra precautions were taken when approaching crossings in foggy areas.

John Henry Moore was conductor that night, and he testified that he had traveled the same route that the train took that night thousands of times. Moore testified that the fog gets very thick at times in the area where the accident occurred. He did not find, however, that the fog is any thicker at that crossing than it would be in many other areas that he had traveled on this route. He testified that the engineer is not told to operate the train any differently when there is heavy fog or rain as opposed to when the weather is clear. Whether it is foggy or clear, the engineer “ring[s] the bell and blow[s] the whistle at all road crossings or any other time he deems necessary.”

None of the train crew witnessed the collision. Other than Mark Twenhafel, the driver of the automobile, there were no surviving eyewitnesses to the accident. The Missouri Pacific train stopped about 16 miles from the Township Road crossing because the crew was informed that one or more of the train cars had a hot axle, wheel or bearing. Upon inspection the crew discovered that the ninth car from the end of the train had been damaged in the collision. Debris attached to the train car indicated that an automobile had struck the train.

A train, either moving or standing upon a railroad crossing, is generally held to be adequate notice and warning of its presence to any traveler who is in the exercise of ordinary care for his own safety, and the railroad is under no duty to give additional signs, signals, or warnings. (Dunn v. Baltimore & Ohio R.R. Co. (1989), 127 Ill. 2d 350, 357, 537 N.E.2d 738, 741; Petricek v. Elgin, Joliet & Eastern Ry. Co. (1959), 21 Ill. App. 2d 60, 65, 157 N.E.2d 421, 423.) Illinois courts recognize that the exception to the general rale is that more warnings may be required if “special circumstances” are present. Dunn, 127 Ill. 2d at 357, 537 N.E.2d at 741.

Plaintiffs argue that this case presents special circumstances which cry out for it to be classified as an exception to the general proposition. Plaintiffs contend that the train crew members each testified that the area of the crossing frequently became very foggy. Plaintiffs argue that it is clear that the low visibility at the crossing prevented the crew from seeing the Twenhafel vehicle that night, and as such it is similarly clear that Twenhafel would have been prevented from seeing the train. There is no evidence that plaintiff stopped or slowed his vehicle upon approaching the crossing. Plaintiffs further argue that because flashing railroad-crossing lights were visible at another crossing located in the vicinity, flashing lights at the Township Road crossing would have alerted the plaintiff of the presence of the train.

While there is no fixed rule as to what constitutes “special circumstances,” in applying an exception to the general rule that a train is adequate notice of its presence, perceptibility is an important element to consider. (Petricek, 21 Ill. App. 2d at 65, 157 N.E.2d at 423.) Circumstances which courts have recognized as “special” or “extraordinary” include a blinding snowstorm (Petricek, 21 Ill. App. 2d 60, 157 N.E.2d 421) and malfunctioning warning lights which indicated that the crossing was clear when in fact it was not (Langston v. Chicago & North Western Ry. Co. (1947), 398 Ill. 248, 75 N.E.2d 363). In Petricek the plaintiff was familiar with the railroad crossing, and as he approached it he stopped, rolled down his car window, and looked and listened. Notwithstanding such precautions, the snowstorm prevented the plaintiff from seeing the standing train. The evidence in Langston was that the night was foggy; lights could be seen for about 50 feet, and unlighted objects about 10 feet. The plaintiff was familiar with the crossing and the method in which the warning lights were operated at that place. When plaintiff’s car reached the intersection the warning lights indicated that no train was approaching or was upon the crossing.

Neither the blinding snow storm of Petricek nor the invitation to cross of Langston is present in this case. Here, the evidence is that Twenhafel approached the crossing at night under circumstances of extremely poor visibility due to fog. We are aware that Bachman v. Illinois Central R.R. Co. (1971), 132 Ill. App. 2d 277, 268 N.E.2d 42, approved a directed verdict in a case involving a foggy crossing. In Bachman, however, there was evidence that the plaintiff approached the crossing at speeds of 45 to 50 miles per hour under foggy conditions. There is no evidence of such speed in this case. In addition, Schott v. Atchison, Topeka & Santa Fe R.R. (1968), 91 Ill. App. 2d 135, 234 N.E.2d 414, affirmed a plaintiff’s verdict even though the plaintiff ran into the defendant’s train when there was no foggy condition present.

Having examined the record, we conclude that the pleadings, deposition, and affidavits on file show that there is a genuine issue of material fact as to whether special circumstances exist. We find that the trial court erred in granting summary judgment. We reverse the judgment of the circuit court and remand for further proceedings.

Reversed and remanded.

WELCH and LEWIS, JJ., concur.