author: JUSTICE GREIMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FABIAN BRANDON, Defendant-Appellant.
    First District (3rd Division)
    No. 1—90—0404
    Opinion filed March 10, 1993.

      Rita A. Fry, Public Defender, of Chicago (Kim L. Sorrells and Donald S. Honchell, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Barbara Jones, and Carolyn A. Reynolds, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GREIMAN

delivered the opinion of the court:

Defendant Fabian Brandon was convicted and sentenced to concurrent terms of 54 years for murder, 30 years for attempted murder, 30 years for armed robbery and 15 years for attempted armed robbery committed on three victims in a parked car.

Defendant asserts on appeal that: (1) the trial court improperly limited defense counsel’s cross-examination of a State’s witness, which impaired defendant’s efforts to establish that defendant’s confession was false; (2) the prosecutor made improper comments during rebuttal closing argument that unduly prejudiced the jury; (3) the trial court improperly limited defense counsel’s closing arguments with respect to reasonable inferences to be drawn from the evidence; and (4) the trial court improperly weighed the facts and circumstances of defendant’s case and the statutory criteria when it imposed defendant’s sentence.

We affirm defendant’s convictions.

At approximately 1 a.m. on July 9, 1988, Ramiro Benitez, Armando Delgado and Antonio Mejia sat talking and drinking beer in a parked car outside of the house where the three lived, near the southwest corner of the intersection of Western Avenue and Wabansia Street. Benitez testified that he observed two Latino men and one black man looking at various cars on the street, and later saw one of the Latino men talking to a boy on a bicycle, James Day. The black man, identified in court as defendant, approached the driver’s side of Benitez’s car, and the third man the passenger side.

Defendant leaned into the window at the driver’s side, where Benitez sat, placed a pistol to Benitez’s temple, demanded money and struck Benitez in the head with the barrel of the gun. Defendant received $5 from Benitez, searched his pockets, then struck him twice in the head when no additional money was found. Defendant also tried unsuccessfully to yank off the gold chain that Benitez wore around his neck. Defendant then walked around to the passenger side of the car and Benitez heard two shots and immediately observed defendant and two others run west on Wabansia Street. Delgado was wounded, and Mejia later died of gunshot wounds. Benitez identified defendant from police photograph books.

James Day testified that while riding his bicycle home at approximately 3:50 a.m. on the date of the incident, he stopped to talk to a Latino man whom he knew only as “Learch.” Day testified he had previously been a member of the Maniac Latino Disciples gang and knew Learch from the gang. Learch told Day, “We’re going to make a hit,” which Day understood to mean that Learch and his companions were going to rob someone.

Day observed a car parked in the place where Benitez testified that he had parked and saw defendant approach the car from the rear while a short, stocky Latino man approached the passenger side of the car. Defendant leaned into the driver’s side window and talked to the people in the car. Learch then told Day to “pull up,” which Day knew meant that he was being ordered to leave the area. Day testified that he had seen defendant, a member of the Maniac Latin Disciples, around the neighborhood for about one year, but they were not friends.

As Day moved to leave, he saw defendant run from the driver’s side of the car to the passenger side. While defendant stood at the passenger side of the car, Day heard two shots and saw defendant and the others run away. The next morning, Day also identified defendant from a police photograph book.

Detective Dorsch testified that after defendant was identified, Calvin Brandon, defendant’s brother, was questioned at the police station in an attempt to locate defendant. Later in the day, defendant was arrested, interviewed, informed that he had been identified as the shooter, and advised of his Miranda rights. Assistant State’s Attorney Lynn Kawamoto testified that she also advised defendant of his Miranda rights, then took defendant’s court-reported statement which he reviewed, signing each page after making corrections, and which statement was received in evidence and read to the jury.

In that statement, defendant claimed that at the time of the incident, he was with “Junie,” his girlfriend’s brother, and Edwin, also known as “Learch,” and that they were approached by three men in a car seeking to purchase marijuana. Learch left and obtained a gun, giving it to defendant when he returned so that the three could rob the men. Defendant approached the driver’s side of the car while Junie approached the passenger side and Learch stood on the corner talking to a male on a bicycle. Defendant then held the gun to the driver’s head and received money from the driver. Junie then asked for the gun because the passenger in the front seat refused to give him any money. Although Junie held the gun, the passenger still refused to accede to his demands and the weapon was returned to defendant. Defendant pointed the gun at the passenger in the front seat, the passenger pushed the gun out of his face and the gun discharged, a bullet hitting the passenger in the back seat. Defendant then aimed the gun at the front seat passenger and fired again, striking the front seat passenger. All three of the defendants ran, and defendant gave the gun to Learch. This is the statement upon which defendant now wishes to cast a shadow.

Defendant first argues that the trial court improperly limited defense counsel’s cross-examination of Benitez, a State’s witness, regarding whether Benitez and the two other men asked defendant if they had any marijuana. Defendant contends that his counsel could properly question Benitez about the attempted purchase in order to impeach defendant’s statement as untrue.

The relevant portion of Benitez’s cross-examination as shown in the record:

“[Defense Counsel]: During the time that these men were around your car, did you have any conversation about marijuana?

[Benitez]: No.

[Defense Counsel]: Did any police officers ever ask you if you were there to buy any marijuana?

[Prosecutor]: Objection.

[THE COURT]: Let me have a sidebar on this. What is the objection?

[Prosecutor]: He can’t perfect it, Judge.

[Defense Counsel]: [Defendant] says in his statement they were there to buy marijuana and came to ask them about marijuana.

[THE COURT]: They who?

[Defense Counsel]: These people. So we are going to allege that part of [defendant’s] statement is incorrect. What I am trying to do with this guy is ask him whether or not the policemen asked if marijuana was involved.

[THE COURT]: That wasn’t the question.

[Defense Counsel]: I asked him whether or not marijuana was involved.

[THE COURT]: That’s not the way to do it.

[Defense Counsel]: I will have to call him back.

[THE COURT]: The last question and answer, if there was one, are struck; and the jury is instructed to disregard it.”

The record does not support defense counsel’s contention that the trial court prohibited questioning regarding a possible marijuana sale since the court allowed Benitez to answer defense counsel’s question regarding whether Benitez had talked to the defendant about marijuana.

We disagree with defendant that defense counsel was prohibited from any further examination on that point. The record demonstrates that the trial court was merely pointing out that defense counsel’s procedure in questioning the witness was improper, and even defense counsel recognized that he could recall the witness and then attempt to use the testimony then elicited to impeach the veracity of defendant’s signed statement.

We reject defendant’s contention that his constitutional rights were violated. The confrontation clause of the sixth amendment of the Constitution guarantees a defendant the right to cross-examine a witness against him for the purpose of showing the witness’ bias, interest or motive to testify falsely. People v. Harris (1988), 123 Ill. 2d 113,144, 526 N.E.2d 335.

In determining the constitutional sufficiency of cross-examination allowed in a criminal case, a reviewing court looks not merely to what defense counsel was prohibited from doing, but to what defense counsel was allowed to do; if the jury was aware of adequate factors concerning relevant areas of impeachment of the witness or, in this case, defendant’s sworn statement, no constitutional question arises merely because defendant was prohibited on cross-examination from pursuing other areas of inquiry which here were beyond the scope of direct examination. People v. Maldonado (1989), 193 Ill. App. 3d 1062, 1069, 550 N.E.2d 1011.

Once the constitutional sufficiency of cross-examination is met, the trial court, exercising its sound discretion, determines the scope of the cross-examination, and its decision will not be disturbed absent an abuse of that discretion. People v. Sandoval (1990), 135 Ill. 2d 159, 552 N.E.2d 726.

A reviewing court need not examine only the particular limitation imposed upon the cross-examination to determine whether reversible error has occurred. Rather, it must determine in each case whether defendant’s inability to make the inquiry “created a substantial danger of prejudice by depriving him of the ability to test the truth of the witness’s direct testimony.” (Harris, 123 Ill. 2d at 145.) Here, the jury was made aware of adequate factors to determine whether defendant’s charge that his confession was false was worthy of belief. Maldonado, 193 Ill. App. 3d at 1069.

Further, had the trial court erred in restricting the scope of cross-examination, such error was harmless since the evidence against defendant was overwhelming. (People v. White (1989), 192 Ill. App. 3d 55, 62, 548 N.E.2d 421.) The victim Benitez identified defendant as his attacker, and eyewitness Day identified defendant as the person who approached Benitez’s car, robbed the passéngers and ran from the car after shots were fired. Defendant’s court-reported statement corroborated the witnesses’ testimony regarding the robberies and shootings.

Defendant next contends that during closing arguments, the prosecutor prejudiced defendant by (1) stating a lesser burden of proof for the State; (2) injecting his opinion; and (3) making com-merits not based on evidence while sitting in an empty chair at the defense table addressing defendant.

Regarding his first charge, the record states:

“[Prosecutor]: Judge Neville has instructed you as to the law. It’s beyond a reasonable doubt. That’s a burden we welcome. It’s a burden we meet. It’s a burden that’s met in every courtroom in this courtroom, [sic] in every courtroom of every city of state.

[Defense Counsel]: Objection to the burden being met in every courtroom.

[THE COURT]: It’s the burden that’s required in every case.

[Prosecutor]: It’s a burden that’s met in every state, every courtroom in this building. It’s a burden that every man who has been convicted and sitting in jail is convicted by.”

We do not find the comment, “it’s a burden that’s met in every state, every courtroom in this building,” reduces the State’s burden or shifts the burden to defendant. First, the trial judge adequately apprised the jury that the burden upon the State must be beyond a reasonable doubt in every case.

Secondly, a similar comment made by the prosecutor in People v. Bryant (1983), 94 Ill. 2d 514, 523, 447 N.E.2d 301, wherein he stated that the State’s burden was “not unreasonable” and “met each and every day in courts” was not held to be prejudicial. Also, in People v. Woods (1988), 173 Ill. App. 3d 244, 250, 527 N.E.2d 485, the prosecutor’s comment was not prejudicial when he argued that the burden of proof prevailed in criminal trials “every day, all year, all the time.”

Defendant also charges that the prosecutor improperly stated his own opinion about the quality of the police investigation in rebuttal closing argument and voiced his feelings that he was “rather proud of the officers.”

The record is clear that the prosecutor’s intent in the present case was to respond only after defense counsel invited such argument regarding the quality of the police investigation in his closing argument.

In closing argument, the prosecution may base its argument on the evidence presented or its reasonable inferences, and, in addition, respond to comments by defense counsel which clearly invite or provoke response, denounce the activities of defendant and highlight inconsistencies in defendant’s argument. People v. Graca (1991), 220 Ill. App. 3d 214, 221, 580 N.E.2d 1328.

Defendant next argues that it was reversible error when the prosecutor sat in an empty chair during rebuttal closing argument and allegedly yelled at the defendant, saying:

“[Prosecutor]: All the time [the defendant has] got the gun to [Benitez’s] face. This is within — he was this far away from his face.

[Defense Counsel]: Objection, this is wrong.

[THE COURT]: [Defense Counsel], sit down. [Prosecutor], come over here and complete your argument.”

While a prosecutor may properly comment on evidence presented or make reasonable inferences based upon that evidence, the prosecutor here engaged in some unnecessary courtroom theatrics. However, the trial court cured any impropriety by quickly directing that the prosecutor discontinue such action at the defense table. We cannot say that defendant was denied a fair trial because of the prosecutor’s action, especially given the overwhelming evidence against him. White, 192 Ill. App. 3d at 62.

Nor can we say that defendant was denied a fair trial where the prosecutor ridiculed defendant, claiming that defendant attempted to blame his brother for the offense:

“You have also seen the cowardice on the part of this [defendant] that hunts in a pack like a wolf. And take the life of a human being Antonio Mejia. He even tries to blame his brother Calvin Brandon.

[Defense Counsel]: Objection.

[THE COURT]: Sustained.”

People v. Johnson (1987), 119 Ill. 2d 119, 139, 518 N.E.2d 100, states that while it was improper for the prosecutor to refer to the defendant as an “animal,” it was not prejudicial where the jury was specifically instructed that closing arguments were not evidence and to disregard any statements made during arguments which were not based upon evidence. There, the comment was an isolated remark not dwelled upon by the prosecutor, and the evidence was not closely balanced.

Similarly in the case at bar, the trial court instructed the jury that closing arguments were not evidence and any statements or argument made by the attorneys which is not based on the evidence should be disregarded. Here, too, it was an isolated remark upon which the prosecutor did not dwell and the evidence was not closely balanced against defendant and the trial court sustained defendant’s objection.

We further find no cumulative prejudicial impact from the prosecutor calling defendant a wolf and in giving his opinion that he was proud of the police work in the case. Neither separately nor together do these two comments constitute a “material factor” in defendant’s convictions. People v. Whitlow (1982), 89 Ill. 2d 322, 341, 433 N.E.2d 629.

Defendant next charges that the trial court improperly limited defense counsel’s efforts to argue to the jury: (1) that the State’s witness, Benitez, looked through only one gang photograph book before identifying defendant, but then continued to look at photographs; (2) that even though defendant, codefendant, and the State’s witness, Day, were at one time members of the same gang and lived in the same neighborhood, Day did not know defendant or his name; and (3) that police used inadequate methods of investigation and they lacked physical evidence which defendant believed should have been discovered by the State.

Defendant contends that these statements were proper inferences based upon the evidence and defendant was prevented from noting the weaknesses in the State’s case.

However, the defendant has waived these issues by failing to raise them in a post-trial motion (People v. Reid (1990), 136 Ill. 2d 27, 38, 554 N.E.2d 174), and we decline to consider these issues under the plain error rule since the evidence is not closely balanced against defendant nor do we find the error of such magnitude that defendant has been denied a fair trial. People v. Young (1989), 128 Ill. 2d 1, 47, 538 N.E.2d 453; People v. Jackson (1981), 84 Ill. 2d 350, 359-60, 418 N.E.2d 739.

Defendant next argues that the trial court erred in determining his sentence because it relied upon a fact not in evidence. The trial court observed that defendant “pistol whipped” Benitez in the car and defendant disputes that the evidence would justify such a conclusion.

While we are unsure of the defendant’s definition of “pistol whipped,” the record clearly establishes that defendant struck Benitez in the head with the barrel of his gun three or more times.

Lastly, defendant argues that the sentence of 54 years is excessive, the defendant being only 17 years old at the time of the crime with no prior convictions, although the record reveals allegations of the commission of other crimes.

A trial court’s sentencing determination is accorded great deference, absent an abuse of discretion. (People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344.) Reviewing courts consider various factors in determining whether the sentence imposed by the trial court was an abuse of discretion: the nature of the crime; protection of the public; deterrence; punishment; defendant’s rehabilitative prospects; defendant’s youth; criminal history; general moral character; mentality; social environment; and education. People v. Trimble (1991), 220 Ill. App. 3d 338, 580 N.E.2d 1209; People v. Newell (1990), 196 Ill. App. 3d 373, 553 N.E.2d 722.

A trial court may also consider in aggravation evidence of offenses which have been uncharged and for which there have been no convictions. (People v. Richardson (1988), 123 Ill. 2d 322, 528 N.E.2d 612; La Pointe, 88 Ill. 2d 482, 431 N.E.2d 344.) Thus the trial court in the present case may properly have considered defendant’s uncharged criminal conduct to be in aggravation.

The trial court in this case sentenced defendant to 54 years for murder, within the 20- to 60-year range. The trial court found that defendant was the aggressor and leader in the situation: he sent Learch to get the gun; he decided to rob three men; he physically assaulted the victims; and he received the gun from Junie who, although armed, was apparently unable to control the victims and required defendant to fire the weapon at the victims. The trial court stated that defendant poses the gravest of dangers because his conduct is unpredictable in seeking crimes of opportunity and found that the victims did nothing to justify being shot by defendant.

The trial court gave a reasonable, detailed explanation of the basis for the sentence imposed and we find no abuse of discretion.

Defendant’s convictions and sentences are affirmed.

Affirmed.

TULLY, P.J., and CERDA, J., concur.


source: Caselaw Access Project

author: JUSTICE SCARIANO

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SAMUEL BANKS, Defendant-Appellant.
    First District (2nd Division)
    No. 1—91—0063
    Opinion filed March 2, 1993.

      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 Linda Woloshin, Assistant State’s Attorneys, of counsel), for the People.

      This was actually defendant’s second trial, his first having ended in a hung jury.

   JUSTICE SCARIANO

delivered the opinion ofjhe court:

Defendant Samuel Banks was indicted for the offenses of aggravated criminal sexual assault, criminal sexual assault, and attempted criminal sexual assault for events occurring on July 5, 1987. A jury convicted him of criminal sexual assault and attempted criminal sexual assault, and he was sentenced to an extended term of 16 years in the custody of the Illinois Department of Corrections.

The following evidence was adduced at trial. On July 4, 1987, Ellen Puff (Ellen), a student at Northwestern University, and her roommate, Michelle Conway (Michelle), hosted a party at their apartment. The victim, J.J., and her fiance, Rito, were invited to the party and arrived about 10 p.m. During the party, between the hours of 9 p.m. and 3 a.m., J.J. consumed about 10 glasses of beer.

The party broke up some time after 3 a.m., and about an hour later, Ellen suggested to the remaining guests that they go to the beach for a swim. Ellen, J.J., and Ellen’s friend, Mike Gallagher (Mike), ultimately decided to go to the beach, which was about a 10-minute walk away. As they approached the beach, Ellen and Mike ran far ahead of J.J. and decided to skinny dip, so they took off their clothes and swam far into Lake Michigan. When J.J. finally arrived at the beach, she heard Ellen and Mike in the lake; however, as the two swam farther out, she lost contact with them. J.J. then took off her sandals and walked along the beach and into the water. At some point, she decided to go a bit farther into the water to try to reach Ellen and Mike. In order to keep her dress dry while doing so, J.J. took it off and put it on the beach. Wearing only her underwear and brassiere, she waded into the water until it was slightly above her knees, but when she still could not see or hear Ellen and Mike, J.J. decided to get out of the lake and try to find her way back to Ellen’s apartment.

As J.J. turned back toward the beach, she saw defendant between her and the place where her clothes were located on the beach. J.J. began to run towards the beach, but defendant grabbed her by the arm and she fell into the water. She tried to resist defendant, but he repeatedly dunked her head under the water so that she was unable to breathe. Fearing for her life, J.J. decided to stop resisting defendant. She asked him what he wanted, and he told her to “love me or suck me.” Defendant then opened his pants, pushed J.J.’s head down, and forced her to perform fellatio on him. After J.J. performed oral sex on defendant, he removed her underwear and tore off her bra, scraping her skin. Defendant then performed oral and vaginal sex on her. All the while, J.J. tried to calm defendant by talking to him, and he told her that his name was Carl, that he was a drummer, and that he had three children.

After the assault, J.J. exited the water and dressed. As she walked back to Ellen’s home with defendant at her side, J.J. saw two police cars in the distance, and she subtly waved her left arm up and down in an attempt to signal them. Defendant, however, grabbed her arm and pulled her to the other side of the street. Eventually, J.J. could no longer see the police cars, and she began to yell at defendant, asking him “how could you do this?”

Meanwhile, Michelle and others back at the apartment became worried as to the whereabouts of Ellen, Mike and J.J.; therefore, Michelle, Rito and two others, Dora and Claudio, began to search for the three. They found Ellen and Mike, who were walking back from the lake. Ellen and Mike told them, however, that they did not know where J.J. was. The group then returned to the apartment and split up to search for her.

As Michelle and Claudio drove south on Foster Avenue, Michelle saw police cars near a light pole which had been knocked down. Claudio asked the officers if they had seen J.J., and they replied that she might be east on Sheridan Road near the lake. Michelle drove in that direction and saw J.J. and defendant from about 200 yards away. As Michelle drove up to the two, she heard defendant say to J.J., “I love you. I’ll never forget you.” Defendant then walked quickly through the Northwestern University campus.

J.J. entered the back seat of Michelle’s car and immediately curled up in a fetal position and began to cry. Michelle asked her what was wrong, and J.J. told her, “I’ve been raped.” Soon thereafter, a police car pulled around the corner, and Michelle sounded the car horn. Because J.J. had not yet composed herself, Michelle explained to the police officer what had happened to J.J. Michelle also told the officer that the man she had seen next to J.J. was 5 feet 5 inches to 5 feet 6 inches, 150 pounds, had short hair and a short beard, and was wearing blue jeans and an open, short-sleeved blue shirt. After the officer helped J.J. into the back seat of the squad car, she described her attacker as about 5 feet 5 inches and 150 pounds.

The officer then took J.J. to the emergency room at Evanston Hospital, where she was treated by Bonnie Rich, R.N. J.J. told her that she had been forced to engage in oral and vaginal intercourse with defendant and that he had dunked her repeatedly in the lake. J.J. had abrasions on the side of her neck and on her knees, a bruise on her arm, mottled skin, and was pale with blue blotches.

After being treated at the hospital, J.J. went to the police station where she spoke with detectives to whom she repeated her description of the assailant, adding that he had a medium to dark complexion. The detectives showed her a series of photographs, and she immediately picked defendant’s photo from the array, indicating that his beard was shorter than shown in the picture. Michelle also selected defendant’s picture from that same array of photographs. Based on that information, the detectives obtained a warrant for defendant’s arrest and apprehended him in January of 1988.

As noted above, the jury found defendant guilty of criminal sexual assault and attempted criminal sexual assault, but not guilty of aggravated criminal sexual assault. The order entered by the trial court, however, states that the defendant was found guilty of all three offenses.

In his post-trial motion, defendant argued, inter alia, that the prosecutor used his peremptory challenges purposefully to exclude African-Americans as jurors in violation of Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712. After hearing oral argument on the Batson issue, the court denied defendant’s motion, finding that the prosecutor did not exercise his peremptory challenges in a racially discriminatory manner. Finally, after hearing testimony on aggravation and mitigation, the court sentenced defendant to 16 years in the custody of the Illinois Department of Corrections.

Defendant appeals his conviction, claiming that his right to equal protection under the law under Batson was violated because the State intentionally used its peremptory challenges to exclude African-Americans from the jury, and that the prosecutor, during his rebuttal argument, improperly commented on his failure to testify.

I

As to his Batson claim, the State asserts that defendant waived this issue for purposes of appeal because he did not object to the jurors’ having been excluded by the prosecutor before they were sworn, and that even if the issue was not waived, the trial court correctly determined that the prosecutor did not exclude potential jurors on the basis of race.

A

The State’s waiver argument is unavailing. It is true that our supreme court has repeatedly held that a defendant’s failure to object to a prosecutor’s use of peremptory challenges before the jury is sworn results in a waiver of that claim. (People v. Pecor (1992), 153 Ill. 2d 109, 118-119; People v. Henderson (1990), 142 Ill. 2d 258, 283, 568 N.E.2d 1234, 1246; People v. Andrews (1989), 132 Ill. 2d 451, 458, 548 N.E.2d 1025, 1028; People v. Evans (1988), 125 Ill. 2d 50, 61-62, 530 N.E.2d 1360, 1364.) The cited cases reason that requiring a timely objection before the jury has been sworn and the venire dismissed allows a trial court to conduct a hearing while the chosen and stricken venirepersons are still present and before trial has begun. See e.g., Andrews, 132 Ill. 2d at 458, 548 N.E.2d at 1028.

The State’s argument is untenable, however, because our supreme court has consistently held in the Batson context that the doctrine of waiver applies to the State as well as to the defendant (see, e.g., Andrews, 132 Ill. 2d at 458, 548 N.E.2d at 1028), and that, therefore, where the defendant raises a Batson claim at the trial level, and the State argues the merits of the claim without objecting to its timeliness, the State cannot assert that the Batson claim is waived on appeal. Henderson, 142 Ill. 2d at 283, 568 N.E.2d at 1246-47; Andrews, 132 Ill. 2d at 458, 548 N.E.2d at 1028; People v. Harris (1989), 129 Ill. 2d 123, 171, 544 N.E.2d 357, 378.

In the case at bar, the State did not object to the timeliness of defendant’s Batson claim before arguing its merits at the post-trial stage. Accordingly, we find that the State waived its waiver argument; we thus reach the merits of defendant’s Batson claim.

B

Prior to the United States Supreme Court’s decision in Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, a defendant could obtain a reversal of his conviction because of a racially discriminatory jury selection only by establishing a systematic and purposeful pattern of excluding venire members on the ground of race in “case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be.” (Swain v. Alabama (1965), 380 U.S. 202, 223, 13 L. Ed. 2d 759, 774, 85 S. Ct. 824, 837.) Batson, however, expressly overruled Swain and held that a defendant could establish a case of racial discrimination in the selection of his jury solely on evidence concerning the prosecutor’s use of peremptory challenges at the defendant’s trial. Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1723.

Batson established a two-step procedure for the resolution of a defendant’s claim that the prosecution used its peremptory challenges in a discriminatory manner. First, the defendant must establish a prima facie case of purposeful discrimination in the selection of his jury, and if he or she succeeds in presenting such a case, the burden then shifts to the State to come forth with a race-neutral explanation for challenging each of the venirepersons. Batson, 476 U.S. at 96-97, 90 L. Ed. 2d at 87-88,106 S. Ct. at 1723.

C

In the case at bar, defendant first raised the Batson issue in his post-trial motion. The State led off in oral argument on the issue, in which it contended that defendant could not make out a prima facie case of racial discrimination. Defense counsel then responded:

“We have three persons who are in the venire who share racial identity with that of the defendant. And of those two of them are excluded from the jury.
The State has taken the position that they don’t [sic] have to provide us with a racially neutral reason for them having been excluded. And therefore the Court is left with no racially neutral reason for them having done that.”

The trial court then stated:

“While I always presume everybody, lawyers on both sides are acting properly within the appropriate guidelines of the law, I believe that the dictates of Batson pursuant to the facts in this case requires [sic] the State to give a racially neutral reason. So I will invite the State to do so at the present time before you go on.”

The State, in response to this “invitation” by the trial court, proceeded to articulate race-neutral explanations for its exclusion of the potential jurors in question, but before doing so, the prosecutor stated for the record that he felt that it was unnecessary for him to do so because no ruling had been made on the prima facie showing. Nevertheless, the court heard argument from both sides regarding the State’s race-neutral explanations for excluding the African-American venirepersons. The court accepted those reasons and held that no Bat-son violation occurred.

The trial court clearly did not follow the proper procedure for making a Batson inquiry. Our supreme court has consistently held that a trial court may not “telescope” the two phases of the Batson inquiry indiscriminately instead of first expressly determining whether defendant has made a prima facie showing of racial discrimination before requiring the State to come forward with race-neutral explanations for its peremptory challenges of African-Americans. (People v. Garrett (1990), 139 Ill. 2d 189, 201, 564 N.E.2d 784, 789-90; People v. Hope (1990), 137 Ill. 2d 430, 456, 560 N.E.2d 849, 860, vacated on other grounds (1991), 501 U.S. 1202, 115 L. Ed. 2d 966, Ill S. Ct. 2792, vacated & remanded (1992), 147 Ill. 2d 315, 589 N.E.2d 503; accord People v. Coulter (1992), 230 Ill. App. 3d 209, 223.) By “collapsing what ought to be a methodical Batson hearing procedure into an undifferentiated review of defense and State contentions” (Garrett, 139 Ill. 2d at 201, 564 N.E.2d at 789-90), the trial court in this case plainly failed to determine expressly whether defendant had made out a prima facie case of discrimination.

Defendant, however, argues that the question of whether he has established a prima facie case in this instance is moot because the prosecutor offered race-neutral explanations for his peremptory challenges before the court made a finding on the prima facie question. We agree. The United States Supreme Court has recently pronounced that “[o]nce a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.” (Hernandez v. New York (1991), 500 U.S. 352, 359, 114 L. Ed. 2d 395, 405, Ill S. Ct. 1859, 1866; accord People v. Mitchell (1992), 152 Ill. 2d 274, 289, 604 N.E.2d 877, 886; People v. Banks (1993), 241 Ill. App. 3d 966, 972.) Accordingly, we proceed to review the trial court’s determination that the prosecutor provided sufficient race-neutral explanations for his peremptory challenges.

D

Once a defendant has established a prima facie case of racial discrimination, the burden shifts to the State to articulate a race-neutral explanation for each peremptory challenge to which the defendant objects. (Batson, 476 U.S. at 93-94, 90 L. Ed. 2d at 85-86, 106 S. Ct. at 1721; Hope, 137 Ill. 2d at 453, 560 N.E.2d at 865.) Although the prosecutor’s race-neutral explanations must be clear, reasonably specific, and legitimate (Mitchell, 152 Ill. 2d at 291, 604 Ill. 2d at 887), they need not rise to the level of a challenge for cause. (Mitchell, 152 Ill. 2d at 291, 604 N.E.2d at 887; Harris, 129 Ill. 2d at 174, 544 N.E.2d at 379.) Furthermore, the prosecutor’s explanations must be subjectively neutral, since any other conclusion would render the peremptory challenge meaningless. (People v. Kindelan (1991), 213 Ill. App. 3d 548, 555, 572 N.E.2d 1138, 1142, appeal denied (1991), 141 Ill. 2d 552, 580 N.E.2d 126.) However, a mere assertion by the prosecution that it acted in good faith or without discriminatory motive is insufficient. Mitchell, 152 Ill. 2d at 291, 604 N.E.2d at 887; Harris, 129 Ill. 2d at 174, 544 N.E.2d at 379.

Once the State has offered its race-neutral explanations, it is incumbent on the trial court to make a sincere and reasoned attempt to evaluate whether those explanations are genuine, legitimate and race-neutral. (Hope, 137 Ill. 2d at 454, 560 N.E.2d at 859; People v. Bais ten (1990), 203 Ill. App. 3d 64, 77, 560 N.E.2d 1060, 1068.) A trial court’s determination as to the validity of the State’s race-neutral explanations is a matter of fact, involving an evaluation of credibility, and will thus be entitled to great deference on appeal; accordingly, a trial court’s decision will only be reversed if it is against the manifest weight of the evidence. (Mitchell, 152 Ill. 2d at 288-89, 604 N.E.2d at 886.) The State’s explanation for its challenge of each African-American venireperson must be reviewed because the exclusion of even one venireperson on the basis of race is constitutionally infirm. Harris, 129 Ill. 2d at 175, 544 N.E.2d at 380.

In the case at bar, the trial court accepted the prosecutor’s race-neutral explanations for his excluding the African-American venirepersons in question, Katherine Wallace (Wallace) and Josephine McCarthy (McCarthy), thus rejecting defendant’s Batson claim. Defendant complains that this determination was against the manifest weight of the evidence.

The prosecutor’s proffered reasons for excluding Wallace were that: (1) her son had been shot when he was 13 years old; (2) she belonged to a citizens alert group which advocates for victims of alleged police misconduct; and (3) her responses to questions during voir dire indicated that because of the aforementioned factors, she would have some difficulty being fair to the State. Defendant argues that these were illegitimate justifications for excluding Wallace because other potential jurors who were not challenged by the State also expressed some distrust or ill will toward the police.

Defendant’s argument is unpersuasive. First, it is clear that none of the other venirepersons to which defendant makes reference had anywhere near the potential bias against police officers as did Wallace. Second, and even more conclusively, our supreme court has rejected defendant’s precise argument, stating:

“The defendant argues that because the prosecutor did not exercise peremptory challenges to excuse white jurors on the same basis that he exercised them against black jurors, it must be assumed that the prosecution’s explanations were merely a pretext to hide a racial motivation for the strikes. What the defendant argues should not be lightly dismissed. We must keep in mind, however, the nature of the peremptory challenge and the inherent problems involved in a hearing of this character. If a prosecutor excused one person and not another it does not follow that this in itself shows that the prosecutor’s explanations were pretextual.
Though a part of the prosecutor’s explanations may have been applicable to white jurors who were not challenged, the white jurors may have, in some other respect, exhibited a trait which the prosecutor reasonably could have believed would , make him or her desirable as a juror.” People v. Young (1989), 128 Ill. 2d 1, 23-24, 538 N.E.2d 453, 459.

Accord Harris, 129 Ill. 2d at 179-80, 544 N.E.2d at 382.

With respect to McCarthy, the State offered the following reasons for excluding her: (1) she was employed at a religious institution, namely the Moody Bible Institute; (2) she may have been a party to a lawsuit at the time of the trial; and (3) she lacked eye contact with the prosecutor and gave casual responses to questions asked. Although defendant asserts that these explanations are pretextual, the trial court determined otherwise, and courts in this State have found the above-mentioned reasons for excluding potential jurors to be valid race-neutral ones. See Young, 128 Ill. 2d at 22, 538 N.E.2d at 458 (juror’s demeanor proper basis for challenging juror); Baisten, 203 Ill. App. 3d at 79-80, 560 N.E.2d at 1070 (same); People v. Mack (1989), 128 Ill. 2d 231, 538 N.E.2d 1107 (concern with employment position valid race-neutral reason for excluding potential juror); Kindelan, 213 Ill. App. 3d at 557, 572 N.E.2d at 1143 (same).

In sum, we conclude that defendant has failed to establish a Bat-son violation for the reason that the trial court’s acceptance of the State’s race-neutral explanations for its peremptory challenges was not against the manifest weight of the evidence.

II

Defendant next maintains that the prosecutor violated his right not to testify by improperly commenting during his rebuttal argument on the fact that defendant did not take the witness stand at his trial. The State counters that the comments to which the defendant objects were invited by defense counsel’s closing argument.

Defense counsel made the following comments during his closing argument:

“We all know that of all those [State] witnesses only one person has firsthand knowledge of what happened in the early morning hours. That person of course is [J.J.].

* * *

When we get to [J.J.], all of the State’s witnesses — she is the only person that can provide you with first-hand information about what happened in the early morning hours of July 5, 1987.”

In response to these comments, the assistant State’s Attorney argued:

“I disagree with one other thing she [defense counsel] said. [That] [t]here was only one person who knows what took place on the beach in the morning hours. Two people, Mr. Banks knows what took place.”

A defendant has the right not to testify as a witness in his own behalf, and, in order to ensure the efficacy of this right, the prosecutor is forbidden to make direct or indirect comment on the exercise of it. (Griffin v. California (1965), 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229; People v. Arman (1989), 131 Ill. 2d 115, 126, 545 N.E.2d 658, 663.) In determining whether a prosecutor has improperly commented on a defendant’s failure to testify, a court must consider “whether ‘the reference [was] intended or calculated to direct the attention of the jury to the defendant’s neglect to avail himself of his legal right to testify’ ” (People v. Dixon (1982), 91 Ill. 2d 346, 350, 438 N.E.2d 180, 183, quoting People v. Hopkins (1972), 52 Ill. 2d 1, 6; accord Arman, 131 Ill. 2d at 126, 545 N.E.2d at 603.) In making that determination, a reviewing court should examine the challenged comments in the context of the entire proceeding. Arman, 131 Ill. 2d at 126, 545 N.E.2d at 603.

We agree with defendant that comments similar to those made by the prosecutor have been held to be improper under certain circumstances. (People v. Thomas (1980), 89 Ill. App. 3d 592, 601-02, 411 N.E.2d 1076, 1084; People v. Connors (1980), 82 Ill. App. 3d 312, 321, 402 N.E.2d 773, 780; People v. Edwards (1979), 77 Ill. App. 3d 237, 242-44, 395 N.E.2d 1095, 1098-99.) Those instances are inapplicable here, however, since it is well settled that a defendant cannot claim error where the prosecutor’s remarks are invited by defense counsel’s closing argument. (People v. Richardson (1988), 123 Ill. 2d 322, 356, 528 N.E.2d 612, 625; People v. Johnson (1986), 114 Ill. 2d 170, 201, 499 N.E.2d 1355, 1369; Dixon, 91 Ill. 2d at 350-51, 438 N.E.2d at 183, see People v. Moore (1991), 215 Ill. App. 3d 836, 843, 576 N.E.2d 900, 905.) It is also well established that the prosecutor may comment on the uncontradicted nature of the evidence. People v. Howard (1991), 147 Ill. 2d 103, 147, 588 N.E.2d 1044, 1062; People v. Barrow (1989), 133 Ill. 2d 226, 268, 549 N.E.2d 240, 259.

The case at bar is on all fours with People v. DeHoyos (1988), 172 Ill. App. 3d 1087, 527 N.E.2d 319, appeal denied (1988), 122 Ill. 2d 582, 530 N.E.2d 253. In that case, the defendant complained that the prosecutor’s comment that not a single witness testified that the vietim consented to have sex with the defendant was improper. The court rejected this argument, stating:

“In considering the remarks as to whether the victim consented to engage in sexual acts, we note no testimony was admitted during the trial which established that the victim did, in fact, consent. Accordingly, we find the reference to this fact by the prosecutor was permissible to emphasize the uncontradicted nature of the State’s case. Further, from our review of the record, we find that in defense counsel’s closing argument, he suggested to the jury that defendant had talked the victim into engaging in several sex acts. Clearly this argument was premised on the basis that the victim consented. As such, we deem the prosecutor’s remarks on consent were in response to defense counsel’s statement and constituted invited reply. [Citation.]” DeHoyos, 172 Ill. App. 3d at 1095-96, 527 N.E.2d at 325.

We find defendant’s claim of error to be baseless because the prosecutor’s comment was clearly invited by defendant’s attorney’s closing argument. Defense counsel, in trying to establish defendant’s consent defense, plainly attempted to discredit J.J.’s testimony by arguing that she was the only one who knew what had occurred on the beach. The prosecutor simply corrected this misstatement by pointing out that the defendant was also at the scene of the crime, a fact defense counsel admitted in her argument, and thus that he knew as well what actually had happened that night. Accordingly, we find no error in the prosecutor’s rebuttal argument.

Ill

Both parties agree that the trial court’s judgment order erroneously states that defendant was convicted of aggravated criminal sexual assault. Therefore, we vacate defendant’s conviction for aggravated criminal sexual assault, and we affirm his convictions for criminal sexual assault and attempted criminal sexual assault.

Affirmed in part; vacated in part.

HARTMAN and DiVITO, JJ., concur.


author: JUSTICE RIZZI

text:
    J.C. DAVIDSON, Plaintiff, v. WILLIAM F. DAVIDSON et al., Defendants-Appellees (Neil F. Hartigan, Attorney General, Intervenor-Appellant).
    First District (3rd Division)
    No. 1-90-3092
    Opinion filed March 10, 1993.
    Roland W. Burris, Attorney General, of Springfield (Daniel N. Malato, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Schreiber, Mack & Postweiler, of Orland Park (Thomas L. Murphy, of counsel), for appellees.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff J.C. Davidson brought this action in the circuit court seeking injunctive relief, monetary damages and other equitable relief against defendants William E Davidson, James F. Davidson, Thomas Davidson, Scott Davidson and T.H. Davidson Co., Inc. Plaintiff, who is 77 years old, filed a motion to set preference for trial pursuant to section 2 — 1007.1(a) of the Code of Civil Procedure, which states:

“Preference in setting for trial, (a) A party who is an individual and has reached the age of 70 years shall, upon motion by that party, be entitled to preference in setting for trial unless the court finds that the party does not have a substantial interest in the case as a whole.” Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1007.1.

Defendants filed a motion to set aside the statute on the grounds that it is unconstitutional, and intervenor Neil H. Hartigan, Attorney General of Illinois, filed a memorandum in opposition to defendants’ motion. The trial court entered an order declaring section 2 — 1007.1(a) of the Code of Civil Procedure unconstitutional. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1007.1.) Upon motion of the intervenor, the circuit court certified the following question of law for interlocutory appeal pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308):

“Whether paragraph 2 — 1007.1(a) of the Civil Practice Act which states that ‘A party who is an individual and has reached the age of 70 years shall, upon motion by that party, be entitled to preference in setting for trial unless the court finds that the party does not have a substantial interest in the case as a whole’ is unconstitutional as conflicting with the Supreme Court’s rule making powers and whether the statute impermissibly interferes with a trial court’s ability to control its own calendar.”

This court granted intervenor’s application for leave to appeal. We reverse and remand.

The separation of powers clause of the Illinois Constitution provides: “The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another.” (Ill. Const. 1970, art. II, §1.) Thus, the judicial branch of government possesses the constitutional authority to promulgate procedural rules to facilitate the discharge of its constitutional duties. (County of Cook, Cermak Health Services v. Illinois State Local Labor Relations Board (1991), 144 Ill. 2d 326, 332, 579 N.E.2d 866, 870.) The legislature, however, may enact laws governing judicial practice, so long as the laws do not unduly infringe upon the inherent powers of the judiciary. DeLuna v. St. Elizabeth’s Hospital (1992), 147 Ill. 2d 57, 73, 588 N.E.2d 1139, 1146.

Here, plainly the statute does not conflict with any supreme court rule or interfere with the ability of the trial court to control its own calendar. Under the circumstances, the statute implements a legislative intent to advance for trial the cases of senior citizens who might otherwise not be able to have their cases heard, without infringing upon the inherent powers of the judiciary. The trial court therefore erred in holding the statute unconstitutional.

Accordingly, we hold, in answer to the certified question, that section 2 — 1007.1(a) of the Code of Civil Procedure is constitutional. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1007.1.) The order of the trial court is reversed and the case remanded for further proceedings.

Reversed and remanded.

TULLY, P.J., and CERDA, J., concur.


author: PRESIDING JUSTICE McNAMARA

text:
    STANLEY SOKOLOWSKI, Plaintiff-Appellee, v. ALL POINTS DISTRIBUTION SERVICE, INC., et al., Defendants-Appellants.
    First District (6th Division)
    No. 1 — 91—3912
    Opinion filed March 12, 1993.

      John D. Daniels, of Sanchez & Daniels, of Chicago, for appellants.
    Robert A. Rosin & Associates, Ltd., of Chicago (Robert A. Rosin, of counsel), for appellee.
   PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Stanley Sokolowski, filed a personal injury action against defendants All Points Distribution Service, Inc., and Continental Can Co., Inc., after sustaining an injury to his back and hip. Following a jury trial, judgment was entered against Continental in the amount of $2 million for damages sustained as a proximate result of the occurrence; however, plaintiff’s award was reduced by 75% for negligence attributable to him. (After the jury found that plaintiff was a loaned employee of All Points at the time of the accident, a directed verdict was entered in favor of All Points and against plaintiff. That ruling is not on appeal.) Continental appeals, contending that the trial court erred in denying its motions for a directed verdict and judgment notwithstanding the verdict (judgment n.o.v.) because there was insufficient proof of proximate cause to support submitting the case to the jury.

On January 30, 1986, plaintiff, age 32, worked for Transportation Personnel Services, Inc., as a leased employee to All Points. Plaintiff was operating a semi-tractor and trailer owned by Continental, and was ordered to pick up a cargo shipment designated as a “hot load,” which is considered a priority shipment. He picked up the semitrailer, which was loaded with nine skids of sheet steel, in St. Louis, Missouri. Five skids were placed inside the nose of the trailer, and four skids were loaded toward the rear of the trailer. The semitrailer was loaded by employees of Continental. As he observed Continental’s employees load the vehicle, plaintiff inquired as to the weight of the skids. According to plaintiff, the skids appeared larger than those he customarily hauled. Prior to signing the bill of lading, plaintiff again questioned an employee loading the truck about the weights. He assured plaintiff that he knew what he was doing. Plaintiff then telephoned Bob Culp, a dispatcher for All Points. Plaintiff informed Culp that the skids looked larger than usual and that the weights did not appear correct. After Culp assured plaintiff that the weight distribution was normal, plaintiff proceeded to Indiana.

While en route to his destination plaintiff passed through a weigh station in Illinois and was cited for being overweight on the rear axles. He called an All Points dispatcher, Dave Fredricks, who became angry at plaintiff for being ticketed as overweight. Plaintiff told Fredricks that there was no way he could take the weight off the rear axle without moving the skids forward. Plaintiff understood his obligation to be to “make the load right.” Fredricks did not offer to send a tow truck, nor did he allow plaintiff the opportunity to explain anything to him before hanging up the telephone. Plaintiff testified that State law prohibited him from moving the vehicle and leaving the weigh station until the load distribution was corrected.

Continental provided a 41/2-foot steel pry bar in the rear of the truck to be used as a lever. Although plaintiff had never previously used a pry bar to shift a load, he had seen other drivers do so on numerous occasions. Plaintiff believed that he would lose his job or that he would be reprimanded if the company incurred the expense of a tow truck. Utilizing the pry bar, plaintiff attempted to move the skids inch by inch to redistribute the weight. Plaintiff succeeded in moving the corner of the skid approximately one foot before sustaining serious injuries to his back and hip. He then went inside the scale house, called the dispatcher, and explained that he had hurt himself. The dispatcher called a tow truck; however, it was unable to move the pallet. Finally, a semi-tractor tow truck was called and was able to shift the load and redistribute the weight so that plaintiff could leave the scale. As a result of the injury, plaintiff experienced multiple hospitalizations and four operative procedures, including a hip replacement and three spinal surgeries.

On appeal, Continental contends that the trial court erred in denying its motion for a directed verdict and post-trial motion for judgment n.o.v. The correct standard to apply in determining whether a motion for a directed verdict or judgment n.o.v. should be granted was developed in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504. The Pedrick standard holds that verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. Pedrick, 37 Ill. 2d at 510, 229 N.E.2d at 513.

Continental asserts that an act or omission which merely furnishes a condition which makes an accident possible is not, as a matter of law, a proximate cause of an occurrence which results from the independent intervening acts of another. Continental cites Quintana v. City of Chicago (1992), 230 Ill. App. 3d 1032, 596 N.E.2d 128, for the proposition that if the negligence charged does nothing more than furnish a condition by which the injury is made possible and that condition causes an injury by the subsequent, independent act of a third person, the creation of the condition is not the proximate cause of the injury where the subsequent act is an intervening efficient cause which breaks the causal connection between the original wrong and the injury, and itself becomes the proximate or immediate cause. See also Novander v. City of Morris (1989), 181 Ill. App. 3d 1076, 537 N.E.2d 1146.

In the present case, Continental argues that the injury did not result from the condition presented to the plaintiff and his dispatcher, namely, a very heavy skid of sheet tin which needed to be moved within a trailer. Rather, it asserts that the injuries were a result of the decision of plaintiff or the All Points dispatcher (or both) to attempt to move the load manually. We do not agree.

The question of proximate cause is ordinarily one of fact for the jury; however, this rule is subject to the limitation that if on all the evidence reasonable men could come to only one conclusion, the question of proximate cause is to be decided as a matter of law. (Lane v. City of Harvey (1988), 178 Ill. App. 3d 270, 275, 533 N.E.2d 75, citing Vest v. City of Granite City (1982), 106 Ill. App. 3d 36, 435 N.E.2d 755.) Under Illinois law, a distinction is made between the proximate cause of an injury and a condition which provides an opportunity for the causal agency to act. Where a negligent act or omission does nothing more than furnish a condition which makes an injury possible, but the injury is caused by the subsequent independent act of a third person, the two acts are not concurrent and the condition is not the proximate cause of the injury. (Storen v. City of Chicago (1940), 373 Ill. 530, 27 N.E.2d 53.) It is well recognized that proximate cause exists when the injury is the natural and probable result of the negligent act or omission, and is of such a character as an ordinarily prudent person ought to have foreseen it as likely to occur as a result of the negligence, although it is not essential that the person charged with negligence should have foreseen the precise injury which resulted from his act. Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, 50 N.E.2d 497; Greene v. City of Chicago (1978), 73 Ill. 2d 100, 382 N.E.2d 1205.

The record reveals that Continental operated 150 production and warehousing facilities and had its own internal trucking department. Continental exchanged inventory between its various plants in order to complete its ultimate commercial objectives. It was foreseeable that when the employees of Continental loaded plaintiff’s truck, the weight distribution in the semitrailer would have to comply with applicable State regulations as it passed through weigh stations. Plaintiff expressed his concern that the skids appeared larger than usual and inquired about the weight of the load to employees of Continental as they loaded the truck. When plaintiff was stopped at the weigh station and received little, if any, direction from the All Points dispatcher, he was placed in a situation where immediate action was required. Continental anticipated that loads would shift and, therefore, equipped the trucks with a 41/2-foot pry bar to assist drivers in moving loads.

We find that Continental’s conduct consisted of more than merely furnishing a condition which made it probable that plaintiff would try to redistribute the weight upon the rear axles. In light of the fact that Continental’s employees loaded the semitrailer in a disproportionate manner and provided a pry bar to assist the drivers in remedying these types of situations, and the fact that plaintiff was placed in the precarious position of acting quickly so that he could cure his overweight status and deliver his priority shipment, we find that plaintiff’s injuries were foreseeable.

Accordingly, we find that the judge did not err in denying Continental’s motions for a directed verdict and judgment n.o.v. Sufficient evidence was produced under the standard enunciated in Pedrick to support allowing the jury to decide the proximate cause issue. We also note that the jury, after hearing all the evidence, decreased plaintiff’s award by 75% for his negligence.

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

Judgment affirmed.

EGAN and GIANNIS, JJ., concur.


author: PRESIDING JUSTICE JIGANTI

text:
    THE PEOPLE ex rel. NEIL F. HARTIGAN, Attorney General, et al., Plaintiffs-Appellees, v. ILLINOIS COMMERCE COMMISSION et al., Defendants-Appellees (Rose Edelson et al., Indiv. and as Representatives of a Class of Persons Similarly Situated, Petitioners and Intervenors-Appellants).—ROSE EDELSON et al., Indiv. and as Representatives of a Class of Persons Similarly Situated, Plaintiffs-Appellants, v. COMMONWEALTH EDISON COMPANY, Defendant-Appellee.
    First District (4th Division)
    Nos. 1—89—3477,1—90—0198 cons.
    Opinion filed March 11, 1993.

      Aaron S. Wolff, Arnold M. Flamm, of Orlikoff & Flamm, and Arthur T. Susman and Jeffery H. Fradkin, both of Susman, Saunders & Buehler, all of Chicago, for appellants.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Lawrence Rosenthal and Jean Dobrer, Assistant Corporation Counsel, of counsel), for appellee City of Chicago.
    Kevin M. Forde and Mary Anne Mason, both of Kevin M. Forde, Ltd., and Howard J. Trienens and Michael I. Miller, both of Sidley & Austin, both of Chicago, for appellee Commonwealth Edison Company.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiffs, Rose Edelson and Sheldon Kamin (Edelson), sought leave to intervene in a pending rate case against Commonwealth Edison (Edison). Edelson also brought a class action suit which sought to compel Edison to institute tax refund procedures against the State and certain municipalities for utility and franchise taxes which were imposed and collected upon electricity charges subsequently found by the circuit court to be illegal. The trial court denied the petition for leave to intervene because Edelson had been adequately represented by consumer and governmental bodies in the rate case and because Edelson’s motion for intervention was not timely. The trial court also dismissed Edelson’s suit because Edelson failed to name the necessary taxing authorities as parties in the suit and, further, Edelson’s claim was precluded by the judgment in the rate case.

We begin by summarizing the pertinent procedural background. In October 1985, Edison was granted a $495 million rate increase by the Illinois Commerce Commission (Commission). Twelve governmental bodies and public interest groups appealed the Commission’s order to the circuit court of Cook County and their appeals were consolidated. In April 1986, the circuit court reversed the Commission’s order and remanded the cause to the Commission for a new rate-making proceeding. On May 16, 1986, upon emergency motion by Edison, the circuit court stayed enforcement of its judgment pursuant to Supreme Court Rule 305(b). (134 Ill. 2d R. 305(b).) The stay order enabled Edison to continue to collect the $495 million annual rate increase throughout the appellate process. However, since the circuit court had held that the rate increase was illegal, the court predicated its stay order on various conditions. One condition imposed a requirement that Edison keep records which reflected the difference between rates collected after April 29, 1986 (the date of the circuit court’s judgment reversing the rate order), and the rates which would have been collected without the costs which the court ruled should be excluded from Edison’s final rate-base determination. The stay order also provided that if the circuit court’s reversal of the rate increase were affirmed, Edison would pay refunds of the illegal portion of the rates it collected, and the circuit court would retain jurisdiction to enforce the order.

The provision of the stay order which is the subject of this appeal is paragraph 7, which reads as follows:

“Such refunds shall not include state and municipal utility and franchise taxes paid after April 29, 1986, by Edison on any amount ultimately refunded ***.”

Throughout the appellate process, Edison acted in accordance •with the May 16, 1986, stay order and collected the challenged rates which were subject to a refund and paid the taxes which were owed on those monies to the various bodies which impose taxes upon utility revenues. In the interim, all parties appealed the circuit court’s April 1986 decision directly to the supreme court. No party, however, appealed the circuit court’s May 1986 stay order.

In June 1987, the supreme court affirmed the circuit court’s reversal of the Commission’s rate order and remanded the cause to the Commission for further rate-making proceedings consistent with its decision. (People ex rel. Hartigan v. Illinois Commerce Comm’n (1987), 117 Ill. 2d 120, 510 N.E.2d 865 (Hartigan I).) In September 1989, the Commission issued a supplemental order which set forth, among other parameters, the amount of the refund. At this time, the circuit court retained jurisdiction over the refund process and the various terms necessary to implement and administer a refund as outlined in its May 1986 stay order. In October 1989, the circuit court issued a refund methodology order (RMO) based upon the 1986 stay order. The RMO reaffirmed paragraph 7 of the stay order and protected from recapture the utility and franchise tax revenues which were paid during the refund period.

In November 1989, Edelson sought leave to intervene in the rate-refund litigation for the limited purpose of clarifying and amending the RMO as to the tax consequences. The circuit court denied Edelson’s petition to intervene in the rate case, reasoning that the consumer and governmental parties who appeared in the rate case had fully and adequately represented all of the interests of Edison consumers. The court also stated that Edelson’s petition was not timely.

Intervention may be permissive or as a matter of right. A party is allowed to intervene as of right when a statute confers the unconditional right to intervene, when a party who will be bound by an order or judgment in the action will not be adequately represented by existing parties, or when a party will be adversely affected by the disposition of property subject to the control of the court. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 408(a).) Permissive intervention is subject to the court’s discretion and may be allowed when a statute confers a conditional right to intervene or when an applicant’s claim and the main action concern a common question of law or fact. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 408(b).) In the case of both permissive intervention and intervention as of right, the application to intervene must be made in a timely manner. (Moran v. Commonwealth Edison Co. (1979), 74 Ill. App. 3d 964, 393 N.E.2d 1269.) Absent a clear abuse of discretion, the trial court’s judgment in these matters will not be reversed on appeal. Waters v. City of Chicago (1981), 95 Ill. App. 3d 919, 420 N.E.2d 599.

Certain factors are considered in determining the timeliness of a petition to intervene. The factors include when the intervenors became aware of the litigation, the amount of time that elapsed between the initiation of the action and the filing of the petition to intervene, as well as the reason for the party’s failure to seek intervention at an earlier date. Schwechter v. Schwechter (1985), 138 Ill. App. 3d 602, 486 N.E.2d 340; Moran v. Commonwealth Edison Co. (1979), 74 Ill. App. 3d 964, 393 N.E.2d 1269.

Edelson’s primary support for the timeliness of her petition is that she did not know that the May 1986 order would interfere with her right to a tax refund until October 1989 when the court entered its rate methodology order. In support of this, Edelson points to excerpts from the hearings to illustrate that the intent of paragraph 7 in the May 16, 1986, order was not clear to her until October 1989. Therefore, Edelson concludes that her petition was timely, as it was filed shortly after the October 1989 hearing.

We do not believe that Edelson’s explanation for her failure to seek intervention at an earlier date has merit. We rely upon the plain language of paragraph 7 of the May 16, 1986, order. The order specifically states that if a refund were provided, that refund would not include State and municipal utility and franchise taxes which Edison paid after April 29, 1986. We do not agree that this language was confusing. Moreover, in light of the number of intervening consumer and governmental groups, we cannot say that Edelson was not adequately represented for purposes of clarifying whether paragraph 7 precluded Edison consumers from obtaining refunds on the taxes. As we have discussed, timeliness is a requirement for both permissive intervention and intervention as of right. We thus conclude that the court did not abuse its discretion in denying Edelson’s petition to intervene in the rate case because the petition was not timely.

Edelson has also appealed the court’s dismissal of her complaint. On October 11, 1989, Edelson filed a class action asking the court to require Edison to promptly file claims for a refund with each taxing authority to which Edison had paid taxes on the portion of the receipts from electricity charges found to be improper and excessive. Edison moved to dismiss the complaint based upon Edelson’s failure to name the necessary taxing bodies and also based upon res judicata because Edelson’s claims constituted a collateral attack on the circuit court’s order in the rate case. The court granted Edison’s motions to dismiss the complaint.

Edelson contends that the court incorrectly concluded that res judicata applies to bar her lawsuit. Edelson argues that the judgment in the rate case is not a final judgment; the court in the rate case lacked the authority to resolve the tax issues; taxpayers were not represented in the rate case; the trial court did not adjudicate the tax claims which were raised in her complaint; and because Edelson was not given notice and the opportunity to be heard, barring her suit on the basis of res judicata violates her due process rights.

Under the doctrine of res judicata, a final judgment on the merits rendered by a court of competent jurisdiction is conclusive as to the rights of the parties and their privies. (Kinzer v. City of Chicago (1989), 128 Ill. 2d 437, 539 N.E.2d 1216; People v. Kidd (1947), 398 Ill. 405, 75 N.E.2d 851.) That judgment is an absolute bar to subsequent actions by the same parties or their privies which involve the same claims or demands decided in the original action as well as matters which could have been decided in that suit. (La Salle National Bank v. County Board of School Trustees (1975), 61 Ill. 2d 524, 337 N.E.2d 19.) The essential elements of res judicata are: (1) a final judgment on the merits rendered by a court of competent jurisdiction; (2) an identity of cause of action; and (3) an identity of the parties or their privies. People ex rel. Burris v. Progressive Land Developers, Inc. (1992), 151 Ill. 2d 285, 294, 602 N.E.2d 820, 825.

As to the first requirement, Edelson argues that the trial court lacked jurisdiction to decide the tax refund issue and the judgment was not final because it was not rendered by a court of competent jurisdiction. We do not agree with Edelson’s assertion. As discussed by our supreme court in People ex rel. Hartigan v. Illinois Commerce Comm’n (1992), 148 Ill. 2d 348, 403, 592 N.E.2d 1066, 1091 (Hartigan II), the circuit court was authorized by Supreme Court Rule 305(b) to grant its May 1986 stay order and to condition that order upon “such terms as are just.” (134 Ill. 2d R. 305(b)(3).) Noting that all of the parties benefited from the refund-related conditions of the stay order, the court concluded that the circuit court’s retention of jurisdiction over the terms and implementation of the refund was just and equitable. (Hartigan, 148 Ill. 2d at 404, 592 N.E.2d at 1092.) The court also reviewed portions of the order and noted that the terms of the order would be affirmed unless the circuit court abused its discretion. (Hartigan, 148 Ill. 2d at 405, 592 N.E.2d at 1092.) In light of Hartigan II, we find that the court did have jurisdiction to set forth the terms of the stay order and the judgment of the circuit court was clearly a final judgment.

The second requirement, identity of causes of action, is also met. A cause of action consists of a single core of operative facts which gives the plaintiff a right to relief. (Morris v. Union Oil Co. (1981), 96 Ill. App. 3d 148, 421 N.E.2d 278.) If the same facts or evidence is essential to both proceedings, then identity exists between them and the latter action is barred by res judicata. (People ex rel. Burris v. Progressive Land Developers, Inc. (1992), 151 Ill. 2d 285, 295, 602 N.E.2d 820, 825.) Edelson contends that when the court issued its stay order, the issue before the court was not whether Edison and its consumers would ultimately be entitled to a tax refund from the taxing authorities, but rather that Edison would not be liable for tax refunds. However, we do not find the fact that the issue which is now being raised was not raised earlier to be conclusive as to whether the causes of action have sufficient identity to satisfy res judicata. The single group of operative facts which are common to both cases is the underlying appeal of the Commission’s rate increase and, ultimately, the stay order. Since the same facts are necessary for the maintenance and proof in both cases, the causes of action are identical.

The final requirement for res judicata to apply is that there be identity of the parties or privity. In other words, we must ask whether Edelson’s interests were adequately represented when the May 1986 stay order was entered. Edelson argues that the “taxpayer class” was not represented in the rate case. Further, Edelson contends that many of the intervenors in the rate case had conflicts of interest with the taxpayer because in other contexts they represent the taxing bodies.

We do not find Edelson’s argument persuasive. The Attorney General, the State’s Attorney, and various other governmental and consumer groups appealed the rate increase on behalf of the People. We find no distinction between the consumer and the taxpayer, as they are one and the same. We further note that when issuing its rate methodology order, the court noted that the May 1986 order was essentially a refund guarantee which would never have been bestowed upon them absent the provision in paragraph 7 of the stay order. The court stated:

“[T]he paragraph 7 provision assures government, state and local, that there would be no risk in planning, appropriating and spending electric utility tax funds during the months or years of appellate review and that governmental services in future years would not be faced with cut-backs because utility taxes collected and spent in prior years must be refunded out of some future year’s receipts.”

In exercising its equitable jurisdiction, the court essentially guaranteed the consumer’s refund throughout the appellate process. As noted in Hartigan II, “Without the circuit court’s condition retaining jurisdiction over a potential refund, consumers may have been required to pay improper rates throughout the appellate process without a remedy.” (Hartigan, 148 Ill. 2d at 404, 592 N.E.2d at 1092.) However, the court would not have protected the consumer’s interest in a refund without also assuring that the taxing bodies’ interests were also protected. The consumer benefited in the form of a guaranteed refund and the taxpayer had to pay the price, albeit a small one. Their interests were intertwined and their interests were both adequately represented in the May 1986 order.

We conclude that the elements of res judicata are present in the instant matter and Edelson’s complaint was barred by the judgment in the rate case and properly dismissed. We further conclude that since the court’s finding of res judicata was proper, Edelson’s due process rights were not violated because her interests were adequately represented, and since the rate case was not a class action suit, there was no requirement of notice to each individual consumer.

In light of our findings, we need not address Edelson’s arguments that her complaint properly stated a cause of action and that the taxing bodies were not necessary parties in her suit. The judgment of the circuit court is affirmed.

Affirmed.

CAHILL and JOHNSON, JJ., concur.