text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM COSTELLO, Defendant-Appellant.
    First District (3rd Division)
    No. 1—88—0505
    Opinion filed January 15, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Dennis E. Urban, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Noreen M. Daly, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Following a jury trial, defendant William Costello was convicted of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12—14) and sentenced to 15 years’ imprisonment. On appeal, defendant argues that (1) inculpatory statements made during questioning and interrogation should have been suppressed because they were given involuntarily; (2) the trial court erred when it denied his motion in arrest of judgment where the information failed to set forth all the statutory elements of aggravated criminal sexual assault; (3) the trial court erred when it prevented defense counsel from impeaching the complaining witness with a prior inconsistent statement; (4) the State failed to prove all the elements of aggravated criminal sexual assault beyond a reasonable doubt; (5) certain improper and prejudicial remarks made by the prosecutor during the rebuttal closing argument entitle him to a new trial; and (6) the sentence of 15 years’ imprisonment imposed by the trial court is excessive and should be reduced. We affirm.

In November 1985, defendant randomly dialed telephone numbers from the Chicago telephone book with the prefix 925. Mabel Geiger, a 70-year-old woman whose telephone number begins with the prefix 925, answered her telephone. Defendant identified himself as Dr. Steven Collins, and stated that he had been hired by Medicare to give Geiger a free medical examination. Geiger, believing defendant to be a doctor, scheduled an examination for herself and her mother at an undetermined date in November 1985.

On the scheduled day, defendant arrived at Geiger’s apartment and presented a badge to her with the name Dr. Steven Collins on it. Geiger admitted defendant to her home and brought him into the dining room, where her 82-year-old mother, Sarah Cox, was confined to a hospital bed. Defendant listened to Cox’s heartbeat with a stethoscope and then examined a bed sore which had developed on her buttocks. Defendant stated that the sore looked alright, took her blood pressure and completed the examination.

Defendant then told Geiger to go into an adjoining bedroom so that he could administer her medical examination. Defendant told Geiger to remove all her clothing and instructed her to lie down on the bed. Geiger complied, and told defendant that she had a growth near the entrance of her vagina that had been diagnosed by her previous doctor. Defendant knelt down at the foot of the bed and put his bare hands in Geiger’s vagina. Geiger testified that defendant had all his fingers inside her vagina and that he kept twisting and “working around in there” even after she told defendant that the growth was near the entrance of her vagina.

After completing the vaginal examination, defendant told Geiger that he wanted to examine her breasts. Geiger testified that defendant was getting rough and pinching her nipples, and asked him to stop because he was hurting her. After the breast examination, defendant told Geiger that he wanted to do another vaginal examination, and again placed his fingers inside her vagina. Upon completing the breast and vaginal examination, defendant listened to Geiger’s heart with the stethoscope and scheduled another free examination for an undetermined date in December 1985. Defendant cancelled the December 1985 appointment with Geiger, explaining that he had other sick patients to care for, but rescheduled the examination for an undetermined date in January 1986.

On the specified date in January 1986, defendant again came to Geiger’s home. At that appointment, Geiger refused to allow defendant to examine her, telling defendant that she did not want him to touch her. When defendant instructed her to get undressed, she refused. Defendant insisted that he examine her and directed her to unbutton her blouse. Geiger unwillingly agreed and removed her blouse. Defendant began to grab at her breasts. Geiger testified that defendant was breathing heavily, and insisted that defendant stop. Defendant quickly left Geiger’s apartment.

In February 1986, defendant was again randomly calling telephone numbers from the Chicago telephone book. He contacted 66-year-old Esther Aisenberg. Defendant again represented himself to be a doctor who was hired by Medicare to give free medical examinations. Defendant scheduled an appointment with Aisenberg for a free medical examination on February 24, 1986. Aisenberg, however, became suspicious and informed the police. Aisenberg agreed to cooperate with the police in their investigation and apprehension of defendant.

On February 24, 1986, defendant arrived at Aisenberg’s home to administer the examination. Chicago police officer David Leipert was hiding in the bedroom closet at the time of the attempted examination. He heard defendant identify himself as Dr. Collins, tell Aisen-berg that he was there to give her a free medical examination, and instruct her to take off all her clothes. At this point, Officer Leipert emerged from the closet, and defendant responded, “I’m no doctor, I’m not a doctor.” Defendant was placed under arrest and was transported to the 24th District police station for processing.

The following day, Assistant Public Defender Woodward Jordan was appointed by the court to represent defendant. Jordan conferred with defendant, advised him of his constitutional rights, and informed him of the difference between a felony and a misdemeanor. Assistant State’s Attorney Richard Mottweiler, who worked in the felony review unit of the Cook County State’s Attorney’s office, was assigned to the case. Mottweiler, after informing defendant of his Miranda rights, interviewed defendant in the presence of Jordan and Chicago police detective James Spencer. Defendant stated to Mottweiler that he understood his rights and wished to speak with him. Defendant proceeded to make inculpatory statements to Detective Spencer and Mottweiler. Jordan was present during the entire conversation with defendant.

Defense counsel made a motion to suppress defendant’s inculpa-tory statements given to Detective Spencer and Mottweiler. At the motion to suppress hearing, defendant testified that he was not informed of his Miranda rights by Detective Spencer and that he was told by Detective Spencer that if he did not cooperate with him that he would be charged with a Class X felony. While defendant admits that Mottweiler informed him of his Miranda rights, he testified that Mottweiler was speaking to him in a very intimidating manner.

Jordan testified that he informed defendant of his Miranda rights, and specifically told defendant that he should not say anything to any police officer or State’s Attorney. Jordan also testified that Mottweiler told defendant at least twice that he had the right to remain silent. Jordan stated that Mottweiler spoke to defendant in a serious but lawyerly tone and that Mottweiler did not say anything to defendant in a threatening manner. Finally, Jordan testified that Mottweiler told defendant that if he did not talk or cooperate with him the State was going to increase the charge to a felony.

The trial court ruled that after evaluating the totality of the circumstances, in view of the fact that defendant was represented by counsel and that counsel was present during all questioning and interrogation, defendant made the inculpatory statements to Detective Spencer and Mottweiler voluntarily and denied the motion. Defense counsel’s motion to suppress defendant’s lineup was also denied.

Following a two-day trial, the jury found defendant guilty of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12—14), a Class X felony. The trial court denied defendant’s post-trial motions for an acquittal notwithstanding the verdict, for a new trial and for an arrest of judgment. The trial court sentenced defendant to 15 years’ imprisonment in the Illinois Department of Corrections, to be followed by three years of mandatory supervised release. This appeal followed.

Defendant contends that his inculpatory statements made during questioning and interrogation to Detective Spencer and Assistant State’s Attorney Mottweiler should have been suppressed because they were given involuntarily. We disagree.

Prior to trial, a defendant in a criminal case may move to suppress evidence of a confession on the ground that it was not given voluntarily. (Ill. Rev. Stat. 1985, ch. 38, par. 114—11.) In deciding whether inculpatory statements were given voluntarily, a court will look at the totality of the circumstances in order to determine whether the statement was made freely, voluntarily, and without compulsion or inducement of any sort or whether the defendant’s will was overcome at the time he confessed. (People v. Prim (1972), 53 Ill. 2d 62, 70, 289 N.E.2d 601, 606; People v. Langlo (1987), 153 Ill. App. 3d 636, 641, 505 N.E.2d 1338, 1341.) Consideration must be given to both the characteristics of the accused and the details of the interrogation. (People v. Reid (1990), 136 Ill. 2d 27, 54-55, 554 N.E.2d 174, 187.) This determination should include an evaluation of the defendant’s age, experience, education, background, and intelligence, as well as the conditions and circumstances surrounding the interrogation when the waiver took place. People v. Smith (1990), 199 Ill. App. 3d 839, 846-47, 557 N.E.2d 596, 602-03.

In this case, the testimony at the suppression hearing supports the trial court’s ruling that defendant’s inculpatory statements to Detective Spencer and Mottweiler were given voluntarily. First, Jordan, defendant’s court-appointed attorney, was present during all questioning of defendant. Jordan testified that Mottweiler informed defendant at least twice of his right to remain silent. Jordan also testified that he warned defendant on several occasions not to say anything to either Detective Spencer or Mottweiler, and at one point told defendant to “shut up.” Second, there is no evidence of the threat or use of physical force by either Detective Spencer or Mottweiler in order to obtain the inculpatory statements. Third, evaluation of the characteristics of this particular defendant and the details of the interrogation do not support a finding that defendant’s inculpatory statements were given involuntarily. Defendant was 50 years old at the time of his arrest. He had graduated from high school, had some technical school experience, and had completed the equivalent of two years of college. While it is true that defendant had never been arrested before, there is nothing to suggest based on defendant’s intelligence, background, or the circumstances of the questioning that defendant was unaware that he was making inculpatory statements that could be used against him in a criminal trial. We, therefore, conclude that the trial court’s ruling that defendant’s inculpatory statements to Detective Spencer and Mottweiler were given voluntarily is not contrary to the manifest weight of the evidence.

Defendant contends that the trial court erred when it denied his motion in arrest of judgment where the information failed to set forth all the statutory elements of aggravated criminal sexual assault. We disagree.

Section 111 — 3(a) of the Code of Criminal Procedure of 1963 sets forth the requirements for the form of the charge against a defendant. (Ill. Rev. Stat. 1985, ch. 38, par. 111—3.) The statute requires the charge against a defendant to specifically include the name of the offense, the statutory provision alleged to have been violated, the nature and elements of the offense, the date and county where the offense took place, and the name of the accused. (Ill. Rev. Stat. 1985, ch. 38, par. 111—3(a).) The purpose of this requirement is to ensure that a defendant will be informed with reasonable certainty of the offense with which he is charged so that he can prepare his defense. People v. Hall (1982), 96 Ill. 2d 315, 319-20, 450 N.E.2d 309, 311.

Defendant argues that count I of the information fails to allege the essential statutory element of knowledge as set forth in section 12 — 13 of the Criminal Code. (Ill. Rev. Stat. 1985, ch. 38, par. 12—13.) This contention is without merit. It is a well-established rule in Illinois that all counts of a multicount indictment or information should be read as a whole and that elements missing from one count of an indictment or information may be supplied by another count. People v. Morris (1990), 135 Ill. 2d 540, 544, 554 N.E.2d 150, 152; People v. Hall, 96 Ill. 2d at 320, 450 N.E.2d at 311.

An accused commits aggravated criminal sexual assault if he or she commits criminal sexual assault as defined in section 12 — 13 of the Criminal Code and any one of the aggravating circumstances enumerated in section 12 — 14 of the Criminal Code existed during the commission of the offense. (Ill. Rev. Stat. 1985, ch. 38, pars. 12—13, 12—14.) In this case, count I of the information set forth the aggravated criminal sexual assault charge and counts II and III set forth the criminal sexual assault charges. Knowledge, an essential element of aggravated criminal sexual assault, is clearly set forth in counts II and III of the information. Count II charges defendant knew Geiger was unable to understand the nature of the act, and count III charges defendant knew Geiger was unable to give her knowing consent. While the element of knowledge should have been set forth within count I of the information, we conclude that all the essential elements of aggravated criminal sexual assault were sufficiently set forth in the multicount information to inform defendant with reasonable certainty of the offense with which he was charged. We, therefore, conclude that the trial court did not err when it denied defendant’s motion in arrest of judgment.

Defendant contends that the trial court erred when it prevented defense counsel from impeaching the complaining witness with a prior inconsistent statement. We disagree.

Section 115 — 10.1 of the Code of Criminal Procedure permits the introduction of otherwise inadmissible hearsay testimony if a witness’ statement is inconsistent with an earlier statement given at a prior hearing or trial. (Ill. Rev. Stat. 1985, ch. 38, par. 115—10.1.) The determination of whether a witness’ prior testimony is inconsistent with present testimony is left to the sound discretion of the trial court. People v. Flores (1989), 128 Ill. 2d 66, 87-88, 538 N.E.2d 481, 489.

On direct examination, Geiger testified that defendant placed his hand in her vagina. On cross-examination, defense counsel attempted to impeach Geiger with prior testimony which she gave at a preliminary hearing in April 1986. At trial, defense counsel attempted to ask Geiger whether she gave this response to the following question at the preliminary hearing:

“Q. And [defendant] did not attempt at anytime to sexually assault you?

A. No.”

The prosecutor objected to the attempted introduction of this prior testimony. The trial court sustained the objection, stating that the question requires an answer that only the jury could decide after hearing all the evidence of the case. We agree.

First, the trial court’s refusal to admit Geiger’s prior statement made at the preliminary hearing was proper because the answer itself called for a legal conclusion which would have invaded the province of the jury. See Ferry v. Checker Taxi Co. (1987), 165 Ill. App. 3d 744, 748-49, 520 N.E.2d 733, 736; People v. Panczko (1980), 86 Ill. App. 3d 409, 412, 407 N.E.2d 988, 991; People v. Millet (1965), 60 Ill. App. 2d 22, 34, 208 N.E.2d 670, 677.

Second, Geiger’s prior testimony was not inconsistent for the purposes of section 115 — 10.1 of the Code of Criminal Procedure. (Ill. Rev. Stat. 1985, ch. 38, par. 115—10.1.) The question asked to Geiger at the preliminary hearing was attempting to determine whether Geiger had been sexually assaulted by defendant with his penis, and it is clear that Geiger answered the question in that context. Defense counsel’s attempt to introduce Geiger’s prior testimony out of context does not render that statement inconsistent for the purposes of section 115 — 10.1 of the Code of Criminal Procedure. (See People v. Davis (1982), 106 Ill. App. 3d 260, 263-64, 435 N.E.2d 838, 842; People v. Brown (1980), 91 Ill. App. 3d 582, 584-86, 414 N.E.2d 1165, 1167-68.) We, therefore, conclude that the trial court’s exclusion of defense counsel’s attempted impeachment of the complaining witness with the alleged prior inconsistent statement was proper and not an abuse of discretion.

Defendant contends that the State failed to prove all the elements of aggravated criminal sexual assault beyond a reasonable doubt. We disagree.

The reviewing court must determine, after viewing the evidence in a light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Schott (1991), 145 Ill. 2d 188, 206 (applying the same standard for reviewing the sufficiency of the evidence on appeal in sex-offense cases as in all other criminal cases).) On review, the trial court’s judgment will not be set aside unless the proof is so unsatisfactory, improbable or implausible as to justify a reasonable doubt as to the defendant’s guilt. People v. Slim (1989), 127 Ill. 2d 302, 307, 537 N.E.2d 317, 319.

Defendant argues that the State failed to prove beyond a reasonable doubt that he knew that Geiger did not give knowing consent to the act of sexual penetration. Our review of the record reveals that there is nothing unsatisfactory, improbable or implausible about the jury’s finding of defendant’s guilt.

At trial, Geiger set forth in explicit detail the circumstances of her initial and follow-up telephone conversations with defendant, her medical examinations, and her reaction to learning that defendant was not a doctor. Her testimony was corroborated by the testimony of Officer Leipert, who heard defendant exclaim “I’m no doctor, I’m not a doctor,” after telling Esther Aisenberg that he was a doctor hired by Medicare and directing her to take off her clothes. Additionally, Geiger’s testimony was further corroborated by Detective Spencer and Mottweiler, who testified about inculpatory statements made by defendant of his actions during questioning and interrogation. There is no evidence to suggest that Geiger would have consented to defendant’s acts of sexual penetration if she had been aware that defendant was not the doctor he represented himself to be. Geiger’s age and financial position made her susceptible to predators like defendant. Defendant used deception to gain the confidence of his victim in order to get her to submit to his acts of sexual penetration, and undoubtedly this deception took away Geiger’s ability to give knowing consent to these acts. We, therefore, conclude that after viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found the State proved all the elements of aggravated criminal sexual assault beyond a reasonable doubt.

Defendant contends that certain improper and prejudicial remarks made by the prosecutor during the rebuttal closing argument entitle him to a new trial. We disagree.

The State is permitted wide latitude during closing arguments and may argue to the jury facts and legitimate inferences drawn from the evidence. (People v. Thompkins (1988), 121 Ill. 2d 401, 445, 521 N.E.2d 38, 57.) In reviewing allegations of prosecutorial misconduct, the closing arguments of both the State and the defendant must be examined in their entirety and the complained-of comments must be placed in their proper context. People v. Cisewski (1987), 118 Ill. 2d 163, 175-76, 514 N.E.2d 970, 976.

In this case, defense counsel failed to make a contemporaneous objection to the prosecutor’s rebuttal closing argument at trial. A defendant’s failure to make a contemporaneous objection to any allegedly improper statement by the prosecutor operates as a waiver of any error in relation to the statements unless the comments were so improper that they constituted plain error. (People v. Gonzalez (1991), 142 Ill. 2d 481, 491, 568 N.E.2d 864, 868; 134 Ill. 2d R. 615(a).) A prosecutor’s comments will be deemed plain error when the evidence is closely balanced, or if the error is of such a magnitude that the accused is denied a fair and impartial trial. (People v. Turner (1989), 128 Ill. 2d 540, 555, 539 N.E.2d 1196, 1202.) We conclude that these statements, examined in their proper context and reviewed with the remainder of the closing statement in its entirety, were not so improper as to constitute plain error. Accordingly, any objections to the prosecutor’s comments are waived on appeal.

Defendant contends that his sentence of 15 years’ imprisonment is excessive and should be reduced. We disagree.

Aggravated criminal sexual assault is a Class X felony, carrying a sentence of not less than six years and not more than 30 years’ imprisonment. (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—1(a)(3).) The sentencing judge is in the best position to consider matters relating to sentencing determinations and is vested with wide discretion in making a reasoned judgment as to the penalty appropriate to the particular circumstances of each case. (People v. O’Neal (1988), 125 Ill. 2d 291, 297, 531 N.E.2d 366, 368.) A sentence within the statutory guidelines that is alleged to be excessive will not be disturbed on review unless it is manifestly disproportionate to the nature of the offense. People v. Cabrera (1987), 116 Ill. 2d 474, 493-94, 508 N.E.2d 708, 716.

Defendant argues that the trial court erred by not giving greater weight to defendant’s absence of a prior adult criminal record or to the lack of physical violence surrounding the facts and circumstances of the crime. This contention is without merit. The fact that defendant was a first-time offender is merely another mitigating factor which is to be considered by the trial court along with all the other mitigating and aggravating factors. (People v. Tatum (1989), 181 Ill. App. 3d 821, 826, 537 N.E.2d 875, 878.) A defendant’s lack of a prior record is not necessarily the most persuasive consideration at sentencing, and the seriousness of the crime has been called the most important factor to be considered in imposing the sentence. People v. Hernandez (1990), 204 Ill. App. 3d 732, 740, 562 N.E.2d 219, 225.

We conclude that the 15-year term of imprisonment imposed by the trial court was not excessive. This sentence is well below the 30-year maximum set by the legislature for a Class X felony. Although no violence was employed in this sexual assault, the fact that defendant was preying on those most vulnerable in our society and his use of trickery and deceit illustrates the heinous nature of this crime. The record reflects that the trial court took into consideration defendant’s age, background, employment status, family status, support for his children after his separation from his wife and lack of any prior criminal record when determining defendant’s sentence. We find no basis to conclude that the trial court abused its discretion in sentencing defendant to a term of 15 years’ imprisonment.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

TULLY and CERDA, JJ., concur.

      Justice White heard oral arguments in this appeal prior to his retirement. Justice Tully was designated the third member of the panel and has read the briefs and listened to the tapes.


source: Caselaw Access Project

author: JUSTICE MURRAY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SEAN A. SMITH, Defendant-Appellant.
    First District (5th Division)
    No. 1—89—1842
    Opinion filed January 17, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Robert T. Fox and Jeffrey M. Howard, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Kenneth T. McCurry, Assistant State’s Attorneys, and Roger A. Malavia, law clerk, of counsel), for the People.
   JUSTICE MURRAY

delivered the opinion of the court:

Sean Smith (Smith), defendant, was charged with one count of unlawful firearm possession (Ill. Rev. Stat. 1987, ch. 38, par. 83—2(a)) and unlawful use of a weapon (Ill. Rev. Stat. 1987, ch. 38, par. 24—1(a)(4)). Prior to trial, Smith filed a motion to quash his arrest and suppress evidence seized pursuant to a search. The motion to suppress was denied. On May 24, 1989, after a stipulated bench trial, Smith was found guilty of one count of unlawful use of a weapon, a Class A misdemeanor. (Ill. Rev. Stat. 1987, ch. 38, pars. 24—1(a)(4), 24—1(b).) Based on this conviction, Smith was sentenced to 79 days time considered served, and one year’s conditional discharge.

This appeal concerns the admissibility of evidence obtained during the police “stop and frisk.”

At the hearing on the motion to quash arrest and suppress evidence, Detective Patrick Fitzgerald of the Park Forest police department was the sole witness. He testified to the following facts.

On April 30, 1988, Detective Fitzgerald was patrolling the area around Central Park in an unmarked squad car. He saw Smith and a companion, Curt Rodenberg (Rodenberg), coming out of a park. Detective Fitzgerald made eye contact with Smith and recognized him from previous encounters. Smith was wearing a sweatshirt which was cut off at the sleeves, and he was carrying a large portable radio in one hand and a stick or a cane in the other. At the time, the men were not committing any criminal offenses, the officer was not responding to any crime reports, and he did not have an arrest warrant for Smith.

Smith and Rodenberg were walking westbound. Detective Fitzgerald then turned his squad car around and drove in the direction of Smith and Rodenberg. At that point he noticed Smith and Ro-denberg turned around and started walking in the opposite direction. Subsequently, Rodenberg ran away and Smith quickened his pace.

When Detective Fitzgerald first spoke with Smith, he was in his car. He got out of the vehicle, approached Smith and asked him what he was doing. Smith responded, nothing. Smith then stated that he was just walking. There was no reason for Detective Fitzgerald to ask Smith questions, such as what his name was, because he knew who Smith was. Detective Fitzgerald then asked Smith where he was coming from. Smith responded that he was coming from McDonald’s. Detective Fitzgerald testified that the only McDonald’s in Park Forest was located in the opposite direction from which Smith came. However, Smith never specified which McDonald’s he came from.

Detective Fitzgerald did not know what Smith was doing prior to coming out of the woods at Central Park. While speaking with Smith, Detective Fitzgerald observed a belt wrapped around Smith’s neck that extended down underneath Smith’s sweatshirt. The belt was the type of belt worn around people’s pants.

Detective Fitzgerald stated that he did a Terry frisk for his own protection. The frisk was of the outer clothing of the defendant. He felt it was necessary to do a frisk because he had information that both Smith and Rodenberg had been carrying guns. He had received that information from another police officer approximately one month prior.

When doing the Terry frisk, Detective Fitzgerald recovered a .32 caliber revolver. This was located in a shoulder holster under Smith’s armpit. Subsequently, Smith was placed under arrest.

In denying defendant’s motion to suppress, the trial judge stated:

“Taken in totality, one party takes off, the other quickens his pace, all of a sudden that cannot be ignored if you are a policeman on the street; particularly, when he says he knows him and he knows that — he has been told that he was carrying a gun. Albeit thirty days ago, but he was carrying a gun. For that reason he made the stop. * * *
He gets out of the car and he sees a strap around his neck. What would a reasonable person do at that point but conduct a search? This is the reason that I am going to deny your motion.”

The evidence presented at the suppression hearing was later stipulated at a bench trial. No other evidence was presented at the trial. Defendant was found guilty of unlawful use of a weapon and sentenced to 79 days time considered served and one year’s conditional discharge.

The only questions before us are (1) whether Detective Fitzgerald was justified in stopping Smith, and (2) if so, whether he had adequate grounds to frisk Smith’s clothing for weapons.

The State defends the arrest and seizure on the theory that no stop within the meaning of Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, of Smith ever occurred, and even assuming arguendo a stop did occur, it was supported by specific and articulable facts. Smith urges this court to find that the initial stop of Smith was invalid.

The Illinois Supreme Court has made it clear that a trial court’s determination on a motion to suppress will not be overturned unless it is manifestly erroneous. (People v. Galvin (1989), 127 Ill. 2d 153, 162, 535 N.E.2d 837; see also People v. Winters (1983), 97 Ill. 2d 151, 158, 454 N.E.2d 299; People v. Holloway (1981), 86 Ill. 2d 78, 91, 426 N.E.2d 871.) It is the function of the trial court on a motion to suppress to determine the credibility of the witnesses, the weight to be given to their testimony and the inferences to be drawn from the evidence. People v. Galvin, 127 Ill. 2d at 163.

In appropriate circumstances, and in an appropriate manner, a police officer may approach an individual for purposes of investigating possible criminal behavior even without probable cause for arrest, provided that the officer’s decision to stop is based on specific and articulable facts which, when taken with rational inferences from those facts, reasonably warrant the investigative intrusion. Terry v. Ohio (1968), 392 U.S. 1, 20-21, 20 L. Ed. 2d 889, 905-06, 88 S. Ct. 1868, 1879-80; Galvin, 127 Ill. 2d at 163.

Illinois has codified the holding in Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, and Sibron v. New York (1968), 392 U.S. 40, 20 L. Ed. 2d 917, 88 S. Ct. 1889, in sections 107—14 and 108—1.01 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, pars. 107—14, 108—1.01). (People v. Lee (1971), 48 Ill. 2d 272, 278-79, 269 N.E.2d 488.) Sections 107-14 and 108 — 1.01 provide as follows:

“§107 — 14. Temporary Questioning without Arrest. A peace officer, after having identified himself as a peace officer, may stop any person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person is committing, is about to commit or has committed an offense as defined in Section 102 — 15 of this Code, and may demand the name and address of the person and an explanation of his actions. Such detention and temporary questioning will be conducted in the vicinity of where the person was stopped.” Ill. Rev. Stat. 1989, ch. 38, par. 107—14.
“§108 — 1.01. Search During Temporary Questioning. When a peace officer has stopped a person for temporary questioning pursuant to Section 107 — 14 of this Code and reasonably suspects that he or another is in danger of attack, he may search the person for weapons. If the officer discovers a weapon, he may take it until the completion of the questioning, at which time he shall either return the weapon, if lawfully possessed, or arrest the person so questioned.” Ill. Rev. Stat. 1989, ch. 38, par. 108-1.01.

The officer testified he stopped Smith after recognizing him in a public place and considering the circumstances of Smith’s change of directions and quickened pace. The officer also testified that he had information that Smith and his companion were carrying weapons. These facts were sufficient to establish that the initial contact with Smith was not an arrest, but did meet the requirements of a justifiable “stop” within the meaning of Terry v. Ohio, Illinois statutes and case law.

The initial stop was a valid stop under the statute if the testimony of the officer is believed. The trial judge had the opportunity to observe the witness, determine his credibility and to determine the weight to be given the testimony of the witness. Obviously, the trial judge believed the officer. We find nothing in the record to support a finding that the trial court’s determination was manifestly erroneous; thus, we must affirm the trial court’s decision that the stop was valid.

The right to frisk does not automatically follow the right to stop. The Illinois Supreme Court has also articulated that the question of whether a stop is valid is a distinct and separate inquiry from whether the frisk is valid. (Galvin, 127 Ill. 2d at 163.) In Terry the United States Supreme Court stated:

“[T]here must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. [Citations.] And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch’, but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” Terry, 392 U.S. at 27, 20 L. Ed. 2d at 909, 88 S. Ct. at 1883.

In order to determine whether the frisk in this case was valid, we must look to whether the police officer’s belief that he was in danger when he noticed the belt on Smith’s shoulder was a reasonable belief. If the belief was not reasonable, the frisk was invalid trader Illinois case law; however, if the belief was reasonable, the frisk of Smith’s outer clothing was valid.

Although this is admittedly a close case, we feel that the trial court’s denial of the motion to suppress the weapon was justified by the officer’s explanation that he made the frisk for his own protection. The officer testified that he saw a belt, the type normally worn around people’s pants, around Smith’s shoulder. The officer further testified that he felt it was necessary to frisk the defendant because he had information that Smith had been carrying a weapon. Nothing in the record suggests the police officer lied about his fear. Further, we find nothing in the record to suggest that the finding of the trial court was manifestly erroneous.

Accordingly, based on the above reasoning and the Illinois Supreme Court’s decision in People v. McGowan (1977), 69 Ill. 2d 73, 370 N.E.2d 537, we affirm the trial court’s decision.

Judgment affirmed.

McNULTY, P.J., and GORDON, J., concur.


author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GERALD WILLIAMS, Defendant-Appellant.
    First District (6th Division)
    No. 1—89—3134
    Opinion filed January 17, 1992.
    Michael J. Pelletier and Manuel S. Serritos, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Brian Clauss, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Following a jury trial, defendant, Gerald Williams, age 19, was found guilty of the murder of Ronnell Robinson, age 17. Defendant was sentenced to a term of 30 years. On appeal, defendant contends that the trial court erred in failing to examine defense counsel’s performance at trial upon learning at the post-trial motion that defense counsel had certain alibi witnesses whom he failed to call at trial. Defendant also contends that the sentence was excessive.

The pertinent facts are as follows. James Moore, age 17, testified for the State that the deceased was his cousin. On the evening of November 21, 1987, Moore was driving his uncle’s 1979 black Pontiac Grand Prix. At approximately 11:30 p.m., he picked up the deceased, George Jones, and Andre Spencer. The group drove to the Factory, a teen-age dance hall in Chicago.

Moore further testified that his group became involved in an argument when the deceased accused another youth, later identified as Travis Johnson, age 12, of taking his jacket. A heated argument ensued, but no blows were exchanged. Afterward, Moore saw Johnson approach several youths in the dance hall. Moore advised the deceased that they should leave, and began walking toward the door. En route to the exit, Moore and the deceased were approached by defendant and Johnson. Johnson indicated that he wanted to fight the deceased.

After Johnson’s threats, the deceased and Moore resumed walking to the exit when they were again approached by defendant and Johnson. After Moore used expletives, defendant struck Moore in the face. The deceased struck defendant, and Moore joined in the melee. Security guards broke up the fight and ordered the parties to leave the hall.

Afterward, Moore met with Jones and Spencer in his car, and drove around the block a few times. The deceased entered Moore’s car. Moore was in the driver’s seat, the deceased sat in the middle, and Jones was in the seat next to the window. Spencer and two other youths were in the back seat.

Moore drove west on Madison Street and turned on Cicero Avenue, proceeding southbound. While stopped at a traffic light, Moore noticed an automobile he had seen near the Factory, a brown Chevrolet Citation, touching the back tires of his car. After the light turned green, Moore turned left on Lexington Avenue and travelled eastward. Moore was advised by his passengers that the Chevrolet was still behind him.

As Moore drove under a viaduct and placed the gas pedal to the floor, he heard a gunshot and the sound of breaking glass. The back of his head was showered with glass, and the deceased slumped on top of him. Moore observed that the deceased had been shot in the back of the head, and he immediately proceeded to the hospital.

George Jones testified for the State that he had known the deceased for approximately three years. Jones essentially corroborated Moore’s version of the group’s arrival at the Factory, and the subsequent argument between defendant, Moore, the deceased and Johnson. Jones also stated that during the time Moore was circling the block, Jones noticed the Chevrolet behind their car and that it continued to follow them to the comer of Lexington and Cicero. Defendant was the only person Jones could clearly see inside the car. Once Moore drove under the viaduct, Jones heard one gunshot which fatally wounded the deceased. Jones spoke with the police once they arrived at the hospital. On December 6, 1987, Jones identified defendant from a photo array, and later in a lineup.

On cross-examination, Jones testified that he had never seen defendant prior to the night of the altercation. Somewhere near Cicero and Adams, Jones looked at the Chevrolet for a second time and saw defendant stiH in the front passenger seat. Jones never saw defendant in the back seat of the Chevrolet.

Derrick Baugh testified for the State that he was presently incarcerated because he had also been charged with the deceased’s murder. Baugh had known defendant for about four years. On the evening in question, Baugh borrowed a brown Chevrolet Citation from a friend. Earlier that evening, Baugh had dropped his cousin off at the Factory, and returned to pick her up at 2 a.m. After he was unable to locate his cousin, Baugh picked up defendant, Johnson, Allen Williams, Donald Tankston, and Thaddeus Scott at the Factory. According to Baugh, he drove, defendant sat next to the window, and Scott was seated between them in the front seat. Allen Williams, Tankston and Johnson shared the back seat. Defendant asked Baugh to take him home.

After leaving the Factory, Baugh saw a black car. Defendant asked Baugh to follow that car because someone inside it had taken his jacket. Baugh was not aware that anyone in his car had a gun. Baugh began following the car south on Cicero and turned onto Lexington. As they approached the viaduct, he saw defendant fire a gunshot out the car window in the direction of the black car. After the shooting, Baugh dropped defendant and the others at a food stand.

Baugh testified he did not leam until later that someone in the black car had been shot. Baugh did not speak to the police about the incident because he was scared. Baugh was arrested for his involvement in the murder several months later. Baugh indicated that the State’s Attorney had not made any promises to him in exchange for his testimony.

Thaddeus Scott testified for the State that he is also currently incarcerated after being charged with the deceased’s murder. In return for Scott’s testimony, the State’s Attorney recommended that he receive a lesser sentence.

On November 21, 1987, Scott went to the Factory alone. After he arrived, Scott met Allen Williams and Tankston. At approximately 1:30 a.m., defendant asked Scott to watch his back during a fight because he had angered some youths who had tried to take Johnson’s jacket. Around 2 a.m., Scott, Allen Williams and Tankston left the Factory and began to walk home when they met with defendant and Johnson. A car pulled up and a group of people began chasing the men through the alley behind the Factory. Scott and his group saw Baugh drive by in a Chevrolet and entered his car. Scott sat between Baugh and defendant in the front seat; the others sat in the rear of the car.

Scott further testified that defendant pointed at a black car and stated that “they had his jacket.” Defendant told Baugh to follow the car. Baugh did so, and defendant asked Scott to pass him the gun located under the seat. Scott stated that he handed defendant a 9-milli-meter pistol. Defendant rolled down the window and fired several shots at the car as it approached the viaduct. After the shooting, Baugh dropped the group off at a food stand.

Scott first learned on the following day that someone had been killed. Scott did not report the incident to the police because he was scared. Approximately 60 days later, Scott was arrested for his role in the crime. Later that day, Scott confessed his involvement in the murder and identified defendant as the shooter.

Travis Johnson testified for the State that he was 12 years old at the time of the incident. On the evening in question, Johnson was at the Factory. At approximately 1 a.m., he had an argument with the deceased over a jacket. No blows were exchanged. Johnson informed defendant that he needed his support. Defendant approached the deceased, and asked him why he wanted to fight Johnson. At that point, a fist fight erupted between defendant, Scott, the deceased and Tank-ston. The fight was broken up by security. Johnson then left the Factory with defendant and proceeded home alone, while defendant walked north on Van Burén Street.

Johnson was then impeached with his grand jury testimony, wherein he testified that after he left the Factory both he and defendant rode in the car driven by Baugh, and that Scott, Allen Williams and Tankston were also in the car. Johnson stated that he fabricated the grand jury testimony from the story the police had told him during his interrogation. After spending the previous night in the police station, Johnson stated that he was scared and afraid that he was going to jail, and that the police had threatened him.

Assistant State’s Attorney Frank Zelezinski testified for the State that in December 1987 he was assigned to felony review, and that he interviewed Johnson on December 9, 1987. Zelezinski related that Johnson appeared relaxed and made no complaints concerning his treatment by the police.

Chicago police officer Greg Bronsberg testified for defendant that he interviewed Jones, Spencer and Moore in the hospital emergency room shortly after the shooting, and that none of them recognized any of the individuals in the other car. Officer James Capesius testified for the defense concerning certain inconsistencies found within Scott’s and Baugh’s statements.

After the testimony of the two officers, the defense rested, and the jury found defendant guilty of murder.

Thereafter, defendant presented a motion for a new trial, at which time the following colloquy occurred:

“THE COURT: What have you to say on behalf of the motion?

DEFENSE COUNSEL: I have two witnesses reflected in the motion, Anthony Jones—

THE COURT: This is a witness?

DEFENSE COUNSEL: Yes, Judge. Judge, before you is Anthony Jones. He is an individual placed on the defense amended answer to discovery] prior to trial as a witness for Gerald Williams in this regard.

Judge, on the date that the matter was set for trial, Mr. Jones was here on the first day. However, the State concluded their case in chief. *** On the day that the defense was to present their case, Mr. Jones was unavailable and we were unable to locate him. Subsequently^] in our [zeal], his telephone was not operating at that time and we did not have contact with him.

THE COURT: State *** Counsel says he has a witness who wasn’t available at the time of trial because he was sick or something.

PROSECUTOR: Okay. He has some newly discovered information.

THE COURT: So he wants to put him on. Let’s put him on and see what he would say just for the sake of the record.”

Anthony Jones testified that defendant was with him at the time the deceased was murdered. Jones testified that he left the Factory with Johnson at 1 a.m. and walked to his home. Approximately 10 minutes later, defendant appeared at his door. A few minutes after that, another friend, a youth known to Jones only as Rickey, came to the door. Defendant and Rickey stayed for about 45 minutes, at which time Jones went to bed.

During cross-examination, Jones testified that he did not see defendant while at the Factory. Jones did not mention that defendant was with him the morning he spoke with the investigating officers following the shooting because they failed to pose any questions regarding defendant.

Defense counsel also argued that the testimony of Allen Williams would have indicated that “he didn’t know anything about anybody having been shot *** on that particular day.” At that point, the following dialogue transpired:

“THE COURT: Anything else?

DEFENSE COUNSEL: Just those, your Honor.

THE COURT: What’s that got to do with the motion, counsel? * * *

DEFENSE COUNSEL: It’s other information or testimony that would have been brought out at trial.

THE COURT: What do you think, you try it once, you [lose] and you *** say wait a second, I *** got more evidence. I have never heard of anything more ridiculous in my life. That’s not newly discovered evidence.

DEFENSE COUNSEL: Judge, the State indicated that they believed the evidence was hearsay. There was a mistaken belief I was under at the time of trial and I have since discovered it.

And it’s newly discovered to me that the police officer had investigated this and had a conversation involving such matters which are hearsay and not admissible.

PROSECUTOR: Judge, counsel had the reports at trial. He knew of the testimony and he knew the people that spoke those words and that was not presented by him.

THE COURT: And it would be hearsay, everything testified to. He could have called the witness and didn’t.

DEFENSE COUNSEL: Judge, the witnesses themselves, Allen Williams and Donald Tankston were [una]vailable to my knowledge, unable to be found at the address. I have been through the process of trying to seek out those individuals.”

After further argument, the trial judge found that there was no showing that there was any newly discovered evidence and denied defendant’s motion for a new trial. After hearing factors in aggravation, the court sentenced defendant to a 30-year prison term.

On appeal, defendant contends that he was denied effective assistance of counsel. Defendant asserts that the trial court failed to examine the readily apparent ineffective assistance when defense counsel, at the post-trial hearing, revealed that he had additional witnesses who were not called at trial. Defendant contends that the trial court erred by not conducting an examination of trial counsel’s performance sua sponte, as required by People v. Krankel (1984), 102 Ill. 2d 181, 464 N.E.2d 1045. In Krankel, defendant filed a pro se motion for a new trial which repeated the assertions of defense counsel’s motion, but added the issue of ineffective assistance of counsel based on defense counsel’s alleged refusal to set forth the defense of alibi and alleged failure to investigate defendant’s whereabouts at the time of the offense. Our supreme court held that defendant should have had counsel, other than his originally appointed counsel, to represent him at the post-trial hearing in regard to his pro se motion for a new trial.

Defendant also relies upon People v. Jackson (1985), 131 Ill. App. 3d 128, 474 N.E.2d 466, wherein defendant wrote the trial judge a letter before the post-trial hearing in which he complained of his private trial counsel’s ineffectiveness. The Jackson court stated that the trial court should first examine the factual matters underlying defendant’s claim. If the claim goes to matters of trial tactics or strategy, defendant’s claim should be found spurious and his request for new counsel denied. However, if the factual matters show possible neglect of defendant’s case, the court should appoint new counsel who can undertake an independent evaluation of defendant’s claim and present the matter to the court from a detached, yet adversarial position. (Jackson, 131 Ill. App. 3d at 139, 474 N.E.2d at 474.) In Jackson, the court concluded that defendant’s attorney, upon questioning by the court after trial, offered a valid explanation concerning his decision not to call defendant’s doctor because he could not be used as an effective alibi witness.

We agree with defendant that in accordance with Krankel and Jackson and in view of what transpired at the post-trial motion here, this case must be remanded for a hearing on the possible ineffective assistance of counsel. At the post-trial motion, counsel revealed that he had additional witnesses who were not called at trial and who would have provided critical support to defendant’s alibi defense. Counsel stated that the witnesses had been unavailable, but the record is silent as to what efforts counsel had made to present them. Indeed, it appears that counsel made only a perfunctory effort to secure the testimony of Jones. He made only a vague comment that Jones’ telephone was not working. Counsel was even less specific about his failure to locate Tankston and Allen Williams. At the post-trial motion, counsel offered Jones’ testimony as newly discovered evidence, but the trial court correctly pointed out that the testimony was not and could not be considered newly discovered.

Defendant did not file a pro se petition or write to the judge claiming ineffective assistance of counsel. Nevertheless, the trial judge’s strong comments to counsel at the hearing indicate that he was made aware of counsel’s possible neglect. Where there is a clear basis for an allegation of ineffectiveness of counsel, a defendant’s failure in explicitly making such an allegation does not result in a waiver of a Krankel problem. (People v. Jameson (1987), 155 Ill. App. 3d 650, 508 N.E.2d 267.) Defendant’s best possible defense consisted of the alibi testimony of Jones, and possibly that of Tankston and Allen Williams. Fundamental fairness requires a further investigation of counsel’s performance.

Accordingly, we remand the cause to the trial court with directions to conduct a preliminary investigation of the matter of defense counsel’s performance. If the court determines that the charges lack substance or pertain only to trial tactics, no new counsel need be appointed to represent defendant. If, however, it is indicated that trial counsel may have neglected defendant’s case, the court should appoint new counsel to argue defendant’s claim of ineffective assistance of counsel. See People v. Nitz (1991), 143 Ill. 2d 82, 572 N.E.2d 895.

In view of our holding, we must comment on defendant’s contention that the sentence of 30 years was excessive in light of his age, his insignificant criminal record and the circumstances surrounding the offense. Defendant was 19 years old and had only one previous misdemeanor conviction for which he received a six-month term of supervision.

A trial court is in a better position to determine the punishment to be imposed than is a court of review. (People v. Jackson (1986), 140 Ill. App. 3d 318, 488 N.E.2d 1056.) A trial court’s sentence may not be altered on appeal absent an abuse of discretion. People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.

Despite defendant’s youth and his minimal criminal record, we do not believe that the trial court abused its discretion in the imposition of sentence. Defendant was convicted of the senseless and brutal killing of a youth after a brief altercation in a dance hall. The trial judge characterized the crime as an execution. We will not disturb the sentence.

For the foregoing reasons, the judgment of the circuit court of Cook County is remanded for further proceedings consistent with the holdings of this opinion.

Remanded.

EGAN, RJ., and LaPORTA, J., concur.


author: JUSTICE RAKOWSKI

text:
    BEVERLEE MOZER, Plaintiff-Appellant, v. JACK KERTH, Defendant-Appellee (Northwestern Memorial Hospital, Defendant-Appellant).
    First District (6th Division)
    Nos. 1—90—1412, 1—90—3411 cons.
    Opinion filed January 17, 1992.

      Arnstein & Lehr, John J. Henely, Ltd., and Michael W. Rathsack, all of Chicago (Arthur L. Klein, Eugene J. Kelley, Jr., and David B. Goodman, of counsel), for appellants.
    Wildman, Harrold, Allen & Dixon, of Chicago (Ruth E. VanDemark, Francine J. Aren, and Aaron T. Shepley, of counsel), for appellee.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

This appeal involves a medical malpractice and products liability action brought by plaintiff Beverlee Mozer against defendants Northwestern Memorial Hospital (Northwestern), Dr. Jack Kerth (Kerth) and Bristol Meyers Laboratories (Bristol) wherein plaintiff alleges she suffered a grand mal seizure and myocardial infarct resulting from an overdose of the drug Stadol, which was administered at Northwestern at Kerth’s direction. Plaintiff brought suit on January 10, 1984, and on December 4, 1984, Bristol was dismissed from the lawsuit pursuant to a settlement agreement with plaintiff. On February 9, 1989, plaintiff voluntarily dismissed Northwestern pursuant to section 2— 1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2-1009).

On February 2, 1990, plaintiff filed an amended complaint which purported to reinstate Northwestern as a defendant. Northwestern moved to dismiss the amended complaint, alleging that it could not be rejoined in this manner, but rather plaintiff must refile the complaint as a separate action. The trial court denied Northwestern’s motion, but certified the issue for appeal pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308). This court allowed the appeal.

In January of 1990, Dr. Kerth filed a motion for summary judgment, which was heard on February 8, 1990. The trial court granted Kerth’s motion for summary judgment, while at the same time denying plaintiff’s motions for a continuance and to name an additional expert witness. Plaintiff’s motion to vacate was subsequently denied as well, and plaintiff appeals the entry of judgment against her. We have jurisdiction on plaintiff’s appeal pursuant to Illinois Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). Both appeals have been consolidated, and we affirm in both cases.

The facts relevant to case number 1 — 90—3411, plaintiff’s appeal, are as follows. On January 8, 1986, following a pretrial conference, the trial court ordered plaintiff to identify her experts by July 15, 1986. Again, on December 29, 1986, the court ordered plaintiff to identify her experts by May 15, 1987. At the final pretrial conference on December 22, 1987, the court ordered plaintiff to disclose and produce all experts by December 31,1988.

On February 11, 1986, Dr. Kerth propounded Rule 220 interrogatories to the plaintiff, seeking the identity of plaintiff’s experts. These interrogatories were answered in February of 1989, naming James O’Donnell, a pharmacist, as plaintiff’s expert witness. The responses to the interrogatories included the allegations that: (1) Dr. Kerth failed to follow a caution in the administration of the drug Stadol “for use in hypertension”; and (2) the dosage of Stadol should have been decreased when used with a tranquilizer. The interrogatories further indicated that the package insert of the drug Stadol would be relied upon at trial. At his deposition in December of 1989, O’Donnell testified that he was unqualified to render testimony relating to whether Dr. Kerth had deviated from the standard of care in treating plaintiff. O’Donnell did testify, however, that the drugs used by Dr. Kerth were not used correctly.

On December 9, 1989, defendant’s attorney informed plaintiff’s counsel that as a result of O’Donnell’s qualifications as a pharmacist, as opposed to being a physician, O’Donnell could not testify as an expert on liability. Then, on January 18, 1990, Dr. Kerth brought a motion for summary judgment which was based on plaintiff’s inability to make out a prima facie case of medical negligence against Kerth due to the insufficiency of O’Donnell as an expert witness. The motion was heard on February 8, 1990, which was the day before the case was scheduled to appear on the trial assignment call.

Before the motion was heard, on February 2, 1990, plaintiff filed a first amended complaint, which renamed defendant Northwestern as a defendant, but simply repeated the same allegations of medical negligence against Kerth and did not allege that Kerth was negligent in failing to follow the drug manufacturer’s warning. At the hearing on the motion for summary judgment, plaintiff presented a motion to continue the trial based on the fact that Northwestern had not yet appeared.

The hearing on the motion for summary judgment took place on February 8 and 9, 1990. At the hearing, plaintiff also sought leave to identify a new expert witness. The trial court denied both plaintiff’s request for a continuance and leave to identify a new expert, and, after argument, the trial court further granted defendant Kerth’s motion for summary judgment.

Plaintiff subsequently filed a motion to vacate the trial court’s ruling, and tendered an amended complaint which alleged that no expert was needed due to Dr. Kerth’s violation of the drug manufacturer’s instruction. In support of this motion to vacate, plaintiff attached a product information profile on the drug Stadol, which profile was gathered by a physician. Kerth, in response, filed the actual product insert from the manufacturer and the operation report which indicated the manner in which the drug had been prescribed. The trial court denied plaintiff’s motion to reconsider.

The facts relevant to the consolidated action, No. 1 — 90—1412, are as follows. Defendant Northwestern was named in plaintiff’s original complaint. On February 9, 1989, plaintiff voluntarily dismissed Northwestern from the case. The action continued against Dr. Kerth. Within one year, on February 2, 1990, plaintiff was given leave of court to amend her complaint; the effect of this amendment was to rename Northwestern as a defendant.

Northwestern filed a motion to dismiss the amended complaint, claiming that plaintiff had failed to comply with section 13 — 217 of the Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 13—217.) On July 10, 1990, the trial court denied Northwestern’s motion to dismiss, but agreed to certify the issue for appeal pursuant to Rule 308.

APPEAL NO. 1-90-1412

The first issue we address is whether the trial court erred when it granted defendant’s motion for summary judgment. Due to the nature of the action below, a review of the complaint on file when summary judgment was granted is necessary. That complaint, both at the time the motion for summary judgment was filed and upon hearing on the motion, alleged improper and negligent treatment of plaintiff as the proximate cause of her injury; the complaint did not mention anything about the failure to follow manufacturer’s instructions, and in fact did not mention manufacturer’s instructions at all. In his motion for summary judgment, Dr. Kerth asserted only that plaintiff could not establish a prima facie case of medical negligence against Kerth due to the fact that O’Donnell, a pharmacist, was unable to testify regarding the appropriate standard of care of Dr. Kerth, a licensed physician.

Plaintiff contends that her allegations of negligence as against Dr. Kerth “stand as true because defendant has not contravened them by way of affidavit.” In so contending, plaintiff relies on the testimony of O’Donnell that the drug Stadol should not have been used on plaintiff, or that the drug should have been prescribed in a lower dosage, given plaintiff’s particular history. At the time of the summary judgment proceeding, however, plaintiff’s theory that defendant had failed to follow instructions had not been pleaded, no motion to amend the complaint appears of record, and the manufacturer’s instructions were not presented to the court.

Plaintiff also contends that O’Donnell was qualified to testify as an expert in this case, a proposition for which plaintiff cites no case law or other authority. The standards within which we address this issue are laid out in the case of Novey v. Kishwaukee Community Health Services Center (1988), 176 Ill. App. 3d 674, 677, 531 N.E.2d 427. There the court observed:

“To establish negligent medical malpractice, the plaintiff must prove the proper standard of care to measure the defendant practitioner’s conduct, a negligent breach of that standard, and a resulting injury proximately caused by the practitioner’s lack of skill or care. [Citations.] Except where the negligence is so grossly apparent or within the everyday knowledge of a lay person, expert testimony is required to establish the standard of care applicable to the defendant practitioner and breach of that standard. [Citations.] Our supreme court adopted the ‘school of medicine’ doctrine with respect to medical experts and the standard of care in Dolan v. Galluzzo (1979), 77 Ill. 2d 279, 396 N.E.2d 13. [Citation.] Under the ‘school of medicine’ doctrine, the expert who establishes the practitioner’s deviation from the pertinent standard of care must be both a licensed member of the school of medicine about which he opines and familiar with the ordinary methods, procedures and treatments of practitioners in the actual or a similar community unless certain uniform standards apply regardless of either locality or available conditions and facilities. [Citation.] Once the requirement of a license to practice in the school of medicine to which the witness seeks to testify is satisfied, it lies within the sound discretion of the trial court to determine if the witness is qualified and competent to state his opinion as an expert regarding the standard of care. [Citation.] The rationale behind the licensing requirement of Dolan is that the legislature has recognized different schools of medicine but does not favor one school over another, and since different schools have different methods of treatment and practice, it would be inequitable to have the conduct of a duly licensed practitioner of one school judged by the standards of a different school of medicine. [Citation.]”

In this case, while defendant Kerth is a licensed physician, plaintiff’s expert O’Donnell is a pharmacist. The Illinois legislature has chosen to separately regulate and license these professions. (See Ill. Rev. Stat. 1985, ch. 111, pars. 4001 through 4053, 4401 through 4478.) Thus, under Dolan’s school of medicine doctrine, O’Donnell was unqualified to testify as to the standard of care in the instant case, and the granting of summary judgment on this basis was not improper.

Plaintiff alternatively argues that granting summary judgment on this basis was improper because she did not, at the time of the hearing, need to establish the standard of care and the alleged breach thereof by the use of expert testimony. Plaintiff argues that it was established in this case that Dr. Kerth failed to follow the warnings and instructions of the drug manufacturer. Plaintiff seeks to bring the case within our supreme court’s holding in Ohligschlager v. Proctor Community Hospital (1973), 55 Ill. 2d 411, 303 N.E.2d 392. There, the court held that a plaintiff could establish a prima facie case of medical negligence on a manufacturer’s recommendations and warnings. In Ohligsehlager, “the manufacturer’s instructions contained specific instructions for the use of [the drug] and warned of the hazards that could result from its improper administration.” (55 Ill. 2d at 418.) In interpreting Ohligsehlager, one appellate court has indicated that the case applies to instances where the “manufacturer’s recommendations setting forth explicit instructions on the proper dosage and method of administration accompanied by warnings of an undesirable result should a physician deviate from the precise instructions.” (Young v. Cerniak (1984), 126 Ill. App. 3d 952, 971, 467 N.E.2d 1045.) Here, in response to the motion for summary judgment, plaintiff did not supply the court with the drug manufacturer’s instructions. Plaintiff asserts that O’Donnell opined that “[t]he Stadol package insert warning of its use where the patient has hypertension was not followed.” However, a review of the deposition reveals that O’Donnell was unsure as to whether plaintiff was diagnosed as hypertensive before administration of the drug (which according to O’Donnell would indicate the need for caution), or after the drug was administered (which according to O’Donnell would indicate that the elevated blood pressure reading was caused by the drug). The actual product insert, provided by defendant in response to plaintiff’s motion to vacate, only provides under the heading “Contraindication” that “Stadol should not be administered to patients who have been shown to be hypersensitive to it.” (Emphasis added.) There was no testimony that plaintiff had been shown to be hypersensitive to the drug Stadol, and at oral argument, plaintiff’s counsel was unable to point to any place in the record where competent evidence showed that plaintiff was known to Dr. Kerth to be hypertensive. The insert states only that an increase in blood pressure is an adverse reaction to the drug. O’Donnell opined that the dosage of Stadol should have been reduced when concomitantly used with a tranquilizer, which observation is borne out by the actual product insert. Yet, the only competent evidence on this issue in the record, the operation report, states that “slightly less than 1 mg. of Stadol was given,” while the insert’s recommended dosage was a full one milligram of the drug. O’Donnell, of course, not being qualified to give an opinion on the applicable standard of care, could not raise a question of fact as to how much less Stadol should have been administered, and the product insert did not specify what amount less should have been administered. Thus, even assuming Ohligschlager applied to this case, at the time of the hearing on the motion for summary judgment, plaintiff did not show by competent evidence that Dr. Kerth failed to follow explicit instructions of the manufacturer, or that the treatment of plaintiff by Dr. Kerth was in violation of the instructions. The granting of summary judgment was therefore proper.

The next issues we address are whether the trial court erred when it denied plaintiff’s motion for leave to file an amended complaint and whether the trial court erred in denying plaintiff’s motion to vacate summary judgment in this case. The issues are interrelated.

Plaintiff’s amended complaint included allegations of failure to follow the manufacturer’s instructions. In making the argument that it was error for the trial court to deny plaintiff leave to file an amended complaint, plaintiff presupposes that the aforementioned evidence was sufficient to bring the case within the parameters of Ohligschlager. As indicated, the evidence was not. Plaintiff contends, however, that her motion to amend was erroneously denied because section 2— 1005(g) of the Code of Civil Procedure provided plaintiff an “absolute right to file such amendment even after the entry of summary judgment.”

In two recent cases, which were both decided after the trial court’s ruling on plaintiff’s motion to amend, the First District Appellate Court addressed the propriety of amending a complaint after the entry of summary judgment. In Loyola Academy v. S & S Roof Maintenance, Inc. (1990), 198 Ill. App. 3d 799, 556 N.E.2d 586, the court held that a trial court has the power to allow a plaintiff to amend a complaint pursuant to section 2 — 1005(g), and a plaintiff is not limited in its ability to do so by conforming the pleadings to the proofs. (198 Ill. App. 3d at 802.) The court, however, stressed that motions to amend the pleadings after summary judgment typically are made much later in the proceedings and are viewed with less liberality than those made at the “pleading stage.” (198 Ill. App. 3d at 803.) The court concluded:

“In the instant case Loyola [plaintiff] proposes amendments of potentially significant impact to the case. The facts Loyola alleges in the amended complaint were known at the inception of this litigation. The trial court noted that Loyola could have filed its amended complaint before the court granted summary judgment ***. Loyola offered no justification for its lack of alacrity, and the trial court was within its discretion when it denied Loyola’s motion to amend the pleadings.” 198 Ill. App. 3d at 803-04.

In Hill v. Jones (1990), 198 Ill. App. 3d 854, 556 N.E.2d 613, the court observed that “[presumptively, at the time of the hearing on the motion for summary judgment, the parties are aware of the significant facts and law which apply to the case. The hearing on the motion is an important, potentially dispositive stage of the proceeding.” (198 Ill. App. 3d at 858.) The court concluded: “As the plaintiff has offered no justification for failing to propose her alternative theories at a more appropriate stage of the proceedings, we do not believe the trial court abused its discretion in denying the plaintiff leave to amend.” 198 Ill. App. 3d at 858-59.

Application of Loyola and Hill to the facts of the instant case leads to the conclusion that the trial court did not abuse its discretion in denying plaintiff leave to amend her complaint after the entry of summary judgment. The case was filed in 1984. The hearing on the motion for summary judgment was not held until February 8 and 9, 1990. This was, respectively, the day before and the day when the case was set to be assigned for trial. Thus, the case was at the trial stage, rather than at the pleading stage. While O’Donnell was not produced for deposition until December of 1989, he had been revealed as a witness in February of 1989, and at this time his qualifications were known to plaintiff. Plaintiff does not dispute that she was informed by defense counsel in December of 1989, shortly after the deposition, that O’Donnell would not suffice as a testifying expert. At his deposition, he repeatedly acknowledged that he was not giving opinions as to deviation from the standard of care, although he attempted to opine regarding a school of medicine other than his. Plaintiff’s proposed amendment sought to include allegations to take the case out of the usual medical malpractice case, and institute an action whereby expert testimony would be unnecessary. The proposed amendment did not simply “clarify” the allegations of the complaint, as plaintiff contends in her brief, but rather sought to change the nature of the action. Given that plaintiff has offered no justification for her lack of alacrity, we hold that the trial court did not abuse its discretion in denying plaintiff leave to amend her complaint pursuant to section 2 — 1005(g).

As to the motion to vacate the entry of summary judgment, which included an affidavit of a physician, Dr. Zsigmond, criticizing Dr. Kerth’s treatment, the record reveals that plaintiff’s counsel had obtained Zsigmond’s opinion at least the night before the first day of the hearing on the motion for summary judgment. Our supreme court has held that “[t]he submission of a new matter on [a motion for reconsideration] after a motion for summary judgment has been granted lies in the discretion of the trial court [citation], but it should not be allowed in the absence of a reasonable explanation of why it was not available at the time of the original hearing [citations]. In the absence of any such valid explanation, there was no reason to change the ruling.” (Delgatto v. Brandon Associates, Ltd. (1989), 131 Ill. 2d 183, 195, 545 N.E.2d 649.) There is no valid explanation for the lack of the Zsigmond affidavit at the time summary judgment was granted on the 9th of February, 1990, and thus the trial court did not abuse its discretion in denying the motion to vacate.

Finally, the trial court’s decision is supported by an examination of the effect that granting plaintiff’s motions would have had on Supreme Court Rule 220 (134 Ill. 2d R. 220). Rule 220(b)(1) provides in relevant part:

“[T]he identity of an expert who is retained to render an opinion at trial on behalf of a party must be disclosed by that party either within 90 days after the substance of the expert’s opinion first becomes known to that party or his counsel or, if the substance of the expert’s opinion is then known, at the first pretrial conference in the case, whichever is later. In any event, as to all expert witnesses not previously disclosed, the trial court, on its own motion, or on the motion of any party after the first pretrial conference, shall enter an order scheduling the dates upon which all expert witnesses, including rebuttal experts, shall be disclosed. *** All dates set by the trial court shall be chosen to insure that discovery regarding such expert witnesses will be completed not later than 60 days before the trial will commence. *** Failure to make the disclosure required by this rule or to comply with the discovery contemplated herein will result in disqualification of the expert as a witness.” 107 Ill. 2d R. 220(b).

The court in Mitchell v. Wayne Corp. (1989), 180 Ill. App. 3d 796, 800-01, 523 N.E.2d 241, observed:

“The purpose of Rule 220 is to facilitate trial preparation by eliminating last-minute disclosure of expert -witnesses. [Citation.] The reason for Rule 220 is that adequate trial preparation requires timely disclosure of expert witnesses. Time is needed prior to trial to investigate and discuss the substance of the testimony of an opponent’s expert with one’s own experts in order to prepare for cross-examination. [Citation.] Rule 220 was therefore adopted in an attempt to establish a uniform, but not inflexible, framework for the timely revelation of the identity of expert witnesses and the subject matter of their testimony. [Citation.] The rule authorizes the establishment of deadlines and requires that the parties act in good faith to ascertain the identity of expert witnesses they reasonably anticipate using. [Citation.]”

In the instant case, plaintiff was initially ordered to disclose her expert witness in January of 1986. Three separate orders were entered at the pretrial stage ordering plaintiff to disclose the identity of her expert, and Dr. Kerth propounded Rule 220 interrogatories on February 11, 1986, seeking to learn the identity of the expert. It was not until February of 1989 that the identity of O’Donnell was disclosed, and O’Donnell was deposed in December of 1989. Before the deposition of O’Donnell, as the trial court noted, plaintiff had agreed to the setting of the action on the trial assignment call in February of 1990. Before that time, plaintiff had not sought leave of court to secure additional time in order to name a different expert. It was only after the motion for summary judgment was filed and O’Donnell was deposed that plaintiff sought the court’s permission to retain a new expert.

The trial court was clear in holding that if a new expert was to be disclosed at this late stage of the proceeding, or a continuance granted so that plaintiff could secure a new expert, Rule 220 would in effect be circumvented. Plaintiff cites the case of Cometo v. Foster McGaw Hospital (1988), 167 Ill. App. 3d 1023, 522 N.E.2d 117, in support of her argument that the trial court erred in granting and refusing to vacate summary judgment. Cometo, however, is clearly distinguishable. There, the plaintiff had in fact complied with a discovery order in identifying his expert — only the expert initially refused to testify. Then, the expert decided that he would testify. In response to a motion for summary judgment, the plaintiff offered the expert’s affidavit, and the Cometo court held that this change in circumstance, as well as a continuation of the trial date, constituted a “sufficient change in circumstances from those that existed when the Rule 220 sanctions were imposed to require the trial court, in the interests of justice, to reopen discovery and reject the harsh penalty of summary judgment.” (167 Ill. App. 3d at 1029.) Here, there was no change of heart on the part of a competent, disclosed expert, but rather plaintiff sought additional time to secure a new expert at the latest stages of the proceedings. It is clear that, as the trial court reasoned, Rule 220 would have been eviscerated had plaintiff been granted the relief plaintiff sought. We therefore conclude that the trial court did not abuse its discretion in granting the motion for summary judgment or in denying plaintiff’s motion to vacate.

APPEAL NO. 1-90-3411

The question certified by the trial court reads as follows:

“Whether a plaintiff who has dismissed a defendant pursuant to Ill. Rev. Stat., ch. 110, par. 2—1009, by an order which did not grant plaintiff leave to reinstate that defendant may subsequently reinstate the defendant in the litigation by filing an amended complaint, or whether the plaintiff must commence a new action against that defendant and consolidate the actions.”

In resolving the questions the certified question presents, we will first discuss the reasons why the issues have been made somewhat more complex than necessary. We will then detail the pertinent facts, comment on the split of authority which has developed on the issue and discuss generally the procedures by which a voluntarily dismissed defendant may be brought back into a case. Next, we will resolve the instant case, and finally, we will make a few pertinent observations on the subject.

The issue before us has been made somewhat more complex than necessary for several reasons. First, as will be discussed in greater detail, plaintiff employed a very unusual method of “reinstating,” or, perhaps more accurately, refiling the case against Northwestern. Second, the certified question is posed in a way that, when the question is answered, the outcome of the case does not flow from the answer to the question. Third, the arguments of the parties in their briefs do not necessarily conform to the certified question.

A brief recitation of the essential facts and the procedure plaintiff used below is as follows. Plaintiff voluntarily dismissed Northwestern from the action on February 9, 1989. Plaintiff did not seek leave of court at that time to subsequently reinstate Northwestern, and the order simply provided that Northwestern was dismissed from the action pursuant to section 2 — 1009 of the Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 2—1009.) On February 2, 1990, plaintiff appeared, pursuant to notice given, on the trial court’s routine motion call. No objection to plaintiff’s motion appears of record. The notice of this motion stated that plaintiff was presenting her “Motion [for] Leave to File First Amended Complaint at Law, refiling charges against the Defendant, Northwestern Memorial Hospital.”

The motion read simply that plaintiff “moves this Honorable Court for leave to file Amended Complaint at Law with Summons to issue instanter.” The first amended complaint at law repeated the same allegations in the original complaint. The first paragraph of the amended complaint read as follows:

“That this Complaint is a refiling of a previously dismissed cause of action under the Illinois Code of Civil Procedure, section 2 — 1009, as against the Defendant, NORTHWESTERN MEMORIAL HOSPITAL only; said defendant was voluntarily dismissed on February 9, 1989. This refiling is within one year of said dismissal.”

An order was entered giving plaintiff leave to file the amended complaint which stated that plaintiff was “granted leave to file her First Amended Complaint at Law adding Defendant, NORTHWESTERN MEMORIAL HOSPITAL, with Summons to issue instanter.” Service was in fact had upon Northwestern. Thus, plaintiff did not present a motion to vacate the voluntary dismissal, and we view plaintiff’s action of “reinstating” Northwestern as in effect a refiling of the action without paying the filing fee, getting a new case number, and necessitating consolidation of the cases.

As indicated, Northwestern filed a motion to strike and dismiss the amended complaint, which the trial court denied, and the issue was subsequently certified pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308). In denying Northwestern’s motion to strike and dismiss, the court relied on the case of Kalalinick v. Knoll (1981), 97 Ill. App. 3d 660, 422 N.E.2d 1011. There, the court reviewed a situation where plaintiff had previously voluntarily dismissed a defendant, while another defendant remained in the action, and later filed a motion to reinstate the dismissed defendant. The trial court granted plaintiff’s motion, and plaintiff subsequently amended his complaint. The dismissed defendant in Kalalinick sought to dismiss the amended count against it, arguing that the trial court had been without jurisdiction to set aside the voluntary dismissal, because the order granting voluntary dismissal did not include leave to reinstate. The Kalalinick court cited a number of cases which held that a trial court has no power to allow the reinstatement of suit against a dismissed defendant in the absence of leave given to reinstate at the time the voluntary dismissal was granted. The cases the Kalalinick court cited included fact patterns both where the dismissed defendant was the only defendant in the case and where other defendants remained in the action. The court, however, also cited a case which held that where the dismissed defendant was the only defendant in the case, the rule did not apply. (See Thompson v. Otis (1936), 285 Ill. App. 523, 2 N.E.2d 370.) The split of authority Kalalinick discussed included cases from before both the adoption of the Civil Practice Act, and after, and from both before and after the adoption of Supreme Court Rule 304(a). 134 Ill. 2d R. 304(a).

The Kalalinick court held that where defendants other than the voluntarily dismissed defendant remained in the action the rule that requires securing prior leave of court to reinstate did not apply. Central to the reasoning of Kalalinick was that Supreme Court Rule 304(a) changed the rule in the multiple-defendant situation. Rule 304(a), according to the court, governs the situation because that rule, which applies to orders and judgments alike, allowed for the reinstatement of a complaint “involuntarily dismissed against one party as long as there are claims pending against other parties in the same action. [Citations.]” (Emphasis added.) Nothing in the supreme court rule limits its application to only involuntary, and not voluntary, dismissals, and in the absence of a Rule 304(a) finding in the order granting the voluntary dismissal, a trial court would retain jurisdiction over the matter. See Kalalinick, 97 Ill. App. 3d at 662-64.

Contrary to Kalalinick, in Herman v. Swisher (1983), 115 Ill. App. 3d 179, 450 N.E.2d 28, the court affirmed the trial court’s denial of plaintiff’s motion to reinstate the action against a voluntarily dismissed defendant. There was in Herman, as in Kalalinick and the instant case, another defendant in the action. The Herman court, however, cited only one case on the general rule, and did not cite Kalalinick at all or discuss Rule 304(a).

A few observations about the methods in which a voluntarily dismissed defendant may be brought back into a case are in order. First, the legislature has provided plaintiffs with the right to refile against a voluntarily dismissed defendant. Section 13 — 217 of the Code of Civil Procedure provides that plaintiffs have one year in which to do so, and whether any other defendants remain in the action is irrelevant.

The case law makes it clear that plaintiffs also have the option of securing leave to reinstate a dismissed defendant at the time the voluntary dismissal is granted. We think it self-evident that in order for “reinstatement” to be the method of bringing a defendant back into the action, leave to reinstate must have been granted at the time of dismissal. Again, if leave to reinstate is given at that time, it is irrelevant whether there are multiple defendants.

The effect of Rule 304(a), however, provides plaintiffs with the option of vacating a voluntary dismissal. Rule 304(a) provides in pertinent part as follows:

“(a) Judgments As To Fewer Than All Parties or Claims— Necessity for Special Finding. If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. *** In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.” (134 Ill. 2d R. 304(a).)

Implicit in the reasoning of Kalalinick is the result that the order granting the voluntary dismissal as to one defendant (where there are multiple defendants and there is no Rule 304(a) language) is subject to revision and thus may be vacated by the trial court upon the proper motion.

Finally, we observe that the simple amending of a complaint is not a proper method of bringing a voluntarily dismissed defendant back into a case. No statutory or judge-made authority has been brought to our attention which authorizes the simple amendment of a complaint in the situation discussed herein. We note that in Thompson v. Otis (1936), 285 Ill. App. 523, 2 N.E.2d 370, the court held that bringing the previously dismissed defendant back into case by the service of summons and by the filing of an amended complaint was as efficacious as filing a new, independent action against the defendant.

Having provided a background, we move on to answering the certified question. It is clear that the question is worded so as to present two separate issues. The first is whether the plaintiff who has voluntarily dismissed a defendant “by an order which did not grant plaintiff leave to reinstate that defendant may subsequently reinstate the defendant in the litigation by filing an amended complaint.” The answer to this part of the question is clearly that, in the situation where the dismissed defendant is the only defendant, plaintiff may not do so. His only recourse, under the cases, is to file a new action against the defendant subject to the terms of section 13 — 217 of the Code of Civil Procedure. The answer to this part of the question is still no where there is more than one defendant. This is so because the only time a plaintiff should be allowed to reinstate a defendant is where leave to reinstate is granted. In the absence of leave to reinstate, reinstatement is improper, and the plaintiff must bring the dismissed defendant back into the case by the use of a different procedure than simply amending the complaint.

The answer to the second part of the question, whether a plaintiff must commence a new action and consolidate the actions, is no as well. Clearly, the Code of Civil Procedure gives plaintiffs the option of refiling an action against a voluntarily dismissed defendant. Where there are multiple defendants, the cases may then be consolidated. As we have discussed, however, where there are multiple defendants, the reasoning of Kalalinick leads to an alternative method.

In fact, what the plaintiff did here was “refile” in an amended complaint, albeit in such a way as to avoid the customary filing fee and the need to consolidate. This is evidenced by the fact that summons was served upon Northwestern. The amended complaint even included the language “this complaint is a refiling of a previously dismissed cause of action.” This procedure occurred within the one-year period section 13 — 217 allows. Moreover, under Thompson v. Otis, such a procedure is in effect sanctioned. Without sanctioning this procedure ourselves, and with the caveat that in future cases we may not sanction such a hybrid procedure and confusion of labeling, we do not agree that Northwestern should be dismissed.

In this case, Northwestern’s position appears to be that the only way in which it could have been brought back into the case was via a proper refiling. We have refuted that contention. Northwestern has not urged, as a ground for dismissal of plaintiff’s claim against it, that plaintiff improperly refiled its case. In fact, Northwestern’s briefs assume that plaintiff moved to vacate the voluntary dismissal order, which plaintiff did not. An appellate court should not expand upon a certified question to answer questions not included therein. (See Williams v. Chicago Osteopathic Medical Center (1988), 173 Ill. App. 3d 125, 527 N.E.2d 404.) Because we view plaintiff’s actions below as more like a refiling than any other method of bringing Northwestern into the case, because authority exists to sanction such a procedure as plaintiff employed and because Northwestern has not argued that the improper method of refiling warrants dismissal, we refuse to dismiss plaintiff’s action against Northwestern.

Likewise, because we should not expand upon the certified question, we need not reach defendant’s contention that it was an abuse of discretion in this case for the trial court to allow the refiling against defendant in this case. That issue assumes that the voluntary dismissal was vacated. However, as we have stated, what occurred here was more akin to a refiling. Moreover, even if we were to consider that vacature occurred, in the absence of any indication that defendant was prejudiced (i.e., that defendant would have been forced to go to trial unprepared), we question whether the trial court would have abused its discretion, given that plaintiff refiled her action within one year of dismissal, as section 13 — 217 allows.

Affirmed and remanded.

EGAN, P.J., and LaPORTA, J., concur.