author: JUSTICE LINDBERG

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HENRY GRAHAM, Defendant-Appellant.
    Second District
    No. 2—87—0369
    Opinion filed March 3, 1989.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Daniel D. Yuhas and Richard D. Frazier, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (William L. Browers, Robert J. Biderman, and Linda Cullom, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LINDBERG

delivered the opinion of the court:

Defendant, Henry Graham, was convicted of robbery and theft from a person following a jury trial in the circuit court of Lake County. Defendant was sentenced to seven years’ imprisonment on the robbery conviction. On appeal, defendant argues the following: (1) the State failed to prove him guilty of robbery beyond a reasonable doubt; (2) defendant was denied a fair trial by an impartial jury where evidence of defendant’s prior criminal history was intentionally elicited by the prosecutor; (3) defendant was denied his right to the effective assistance of counsel; (4) defendant was denied his right to due process by the exclusion of expert testimony as to the unreliability of eyewitness identification; and (5) the trial court erred in sentencing defendant to the maximum penalty.

Defendant’s first argument on appeal is that the State failed to prove his guilt beyond a reasonable doubt in that the only evidence against him was the complaining witness’ identification testimony. Defendant’s argument is based on what we perceive as two separate issues. The first is whether the identification procedures used by the police were so impermissibly suggestive as to make unreliable and, hence, inadmissible the complaining witness’, Ms. Conzelman’s, pretrial and in-court identifications of defendant. The second issue raised by defendant’s first argument is, if Ms. Conzelman’s identifications of defendant are sufficiently reliable to be admitted before the jury for its consideration, are these identifications, alone, sufficient to convict defendant beyond a reasonable doubt.

At approximately 5:30 p.m. on January 6, 1987, in Waukegan, Illinois, Leslie Conzelman was robbed in a parking lot. Ms. Conzelman testified at trial that she had just left work and had walked the couple blocks to the lot where she had parked her car. It was dark out. Her car was parked in a lot that had five to six overhead yellow lights. Each light illuminated an area of approximately six to eight cars. Her car was parked in the middle of the lot beneath one of these yellow lights. She carried in her left hand a briefcase inside of which was her purse. As she entered the parking lot, she noticed a black man wearing a navy knit cap with “scruffy” facial hair around the mustache area. She testified that she looked at this person very briefly. As she walked to the middle of the lot, she approached the left side of her car. She did not notice anyone else in the lot. She carried her briefcase in her left hand and her car keys in her right. As soon as she opened her car door, someone jumped on her back, grabbing her from behind. The attacker struck her in the face with an open hand while pushing her up against her car. The attacker was trying to pull Ms. Conzelman’s briefcase from her. Ms. Conzelman was still being pushed against the car and could not see her attacker. Ms. Conzelman then decided to let go of her briefcase and told the attacker “just take it.” At this point, she released the briefcase and turned and faced her attacker for the first time. She saw the same person she had briefly looked at when she entered the parking lot area. He was standing about one foot away, and they were face to face. Ms. Conzelman testified that he was a little taller than herself and looked scared. The attacker looked at her a few seconds and then backed away slowly to the south approximately 20 to 30 feet, the first 10 feet of which his face was illuminated by one of the parking lot lights. He then turned and continued walking south toward the back of a hot dog stand called Jordy’s. Approximately 75 feet away, the attacker again turned and stared at Ms. Conzelman for a “few minutes.” Ms. Conzelman testified that a spotlight in the back of Jordy’s allowed her to again see the attacker’s face. The attacker then turned and ran away. Ms. Conzelman further testified that she had seen her attacker at least two to three times before in the area at a nearby bus stop, the most recent time being December 1986. Ms. Conzelman returned to her office and called the police.

Approximately 10 minutes later, Officer Kevin Runyard arrived at Ms. Conzelman’s place of employment. They talked briefly, and then Officer Runyard drove Ms. Conzelman around the area to see if she could point out her attacker. After a short drive, they proceeded to the police station where Ms. Conzelman went through approximately 300 mug shots of black males in a 45-minute period. During this time, she was seated at the same table as Officer Runyard but separated by a partition. Officer Runyard wrote his report while she viewed photos. Ms. Conzelman, after viewing all the photos, picked out two photos. The first photo was of defendant, Henry Graham. The second photo was of a man named Freeman Geater. Ms. Conzelman indicated that the first photo she picked closely resembled her attacker and that the first photo was closer to her attacker than the second photo. At this point, the police brought her two more photos. Those photos were of the same two people, defendant and Freeman Geater, and were apparently taken at the same time as the previous two photos Ms. Conzelman had picked out but from different angles. Ms. Conzelman again indicated that the photo of defendant was closer to her attacker than that of Freeman Geater. While at the station, Ms. Conzelman told Officer Runyard, as best she could, everything she remembered. She testified that she gave a description of the attack itself and of her attacker to Officer Runyard after having viewed the mug shots and selecting two mug shots as resembling her attacker. She testified that she told Officer Runyard all about the attack just as she described in her trial testimony. Further, she testified that she told Officer Runyard that her attacker was a black male, 5 feet 10 inches to 5 feet 11 inches. He wore a mid-length brown jacket, knit hat and pants and was in his early to midtwenties. She testified that she told Officer Runyard that the attacker had “scruffy” facial hair in the area of the mustache and beard. She denied telling Officer Runyard that her attacker had a large “afro.” Ms. Conzelman then went home.

On January 8, 1987, Ms. Conzelman was asked to come to the police station to identify and retrieve her briefcase and purse, which had been found. Money and several credit cards were missing from her purse. After picking up her purse, Ms. Conzelman met with Lieutenant Stevenson for approximately 20 minutes. Lieutenant Stevenson showed Ms. Conzelman the same two mug shots she had originally picked out two days earlier. According to Ms. Conzelman’s trial testimony, she thought she identified Henry Graham’s photo as that of her attacker at that time. However, on cross-examination, she said she was not certain that she identified defendant’s mug shot as that of her attacker on January 8, 1987. She also stated on cross-examination that she told Lieutenant Stevenson that she had seen her attacker several times at a bus stop in the downtown area on prior occasions, most recently in December 1986. She also testified that she described the attack and attacker to Lieutenant Stevenson but denied saying the attacker had “dread locks.” She stated she told Lieutenant Stevenson her attacker possibly had long curly hair because it was sticking out the front of the attacker’s cap.

On January 13, 1987, Ms. Conzelman was at work when Officer Marquez came by to see her. Ms. Conzelman testified that he had two photos she had never seen before. These photos were of the same two people whose mug shots she had previously picked out the night of the robbery. She testified that she told Officer Marquez that one of the photos, defendant’s, was of the robber, and the other photo, that of Freeman Geater, clearly was not. The two photos were more recent pictures of defendant and Freeman Geater. At this point, Officer Marquez had Ms. Conzelman accompany him in his car on a 15-minute drive to observe black males, none of whom she recognized. They then pulled up to the Waukegan Township office and observed six people in front of the building. Four of the people were black, and Ms. Conzelman did not recognize any of them. Officer Marquez then exited the car and went inside the township office and came out with defendant, whom he placed against the wall of the building. Ms. Conzelman testified that Officer Marquez came back to the car and asked Ms. Conzelman if this was her attacker, and she said, “Yes.” Officer Marquez called in other officers to arrest defendant.

Officer Runyard was the next witness for the State. He testified to receiving a report of a robbery over the radio. The description he received over the radio was a black male, 5 feet 10 inches to 5 feet 11 inches, with a blue knit hat, brown jacket, blue jeans and full “afro” hair. Officer Runyard responded to Ms. Conzelman’s work address, where he talked with her for 15 to 20 minutes, and then proceeded to drive the area with Ms. Conzelman before taking her to the police station. Officer Runyard testified that Ms. Conzelman’s description of the attack was brief. He testified that she described a brief struggle and that the attacker ran off to the south with her briefcase. He also recalled her saying she saw the attacker face to face. However, Officer Runyard’s report did not contain reference to the attacker backing up, any mention of Jordy’s or any face-to-face confrontation. Further, Runyard’s report did not contain any reference to a description of facial hair, nor did he recall Ms. Conzelman ever saying the attacker had facial hair. However, Officer Runyard did recall Ms. Conzelman saying the attacker had a full “afro.”

Lieutenant Stevenson testified next for the State. He testified that on January 8, 1987, he showed Ms. Conzelman the two photos she originally picked out of the mug books, and she stated again that defendant’s “is closer to the offender than any other.” He also testified that he discussed the attack and attacker with Ms. Conzelman and that she never mentioned that the attacker walked toward Jordy’s. Further, Lieutenant Stevenson testified that Ms. Conzelman told him the attacker had a mustache and “dread locks”; was 5 feet 9 inches to 5 feet 10 inches; and 150 pounds with a thin build.

Officer Marquez was the next and last witness for the State. He testified that on January 13, 1987, Lieutenant Stevenson told him to get updated photos of two “possible offenders,” defendant and Freeman Geater, the two people Ms. Conzelman had identified as resembling her attacker. Officer Marquez testified that although his report did not indicate it, he attempted to look for Freeman Geater for 15 to 20 minutes on January 13, 1987, and was unable to find him. Officer Marquez then proceeded to defendant’s residence. Defendant was not there, and Officer Marquez proceeded to the Waukegan Township office, where he found defendant. Officer Marquez informed defendant that he was doing a police investigation and asked defendant if he would accompany Officer Marquez to the station. Defendant voluntarily went to the police station, where Officer Marquez took a Polaroid snapshot of defendant and then returned defendant to the Waukegan Township office. Officer Marquez then proceeded directly to Ms. Conzelman’s place of employment with the new photo of defendant and a more recent photo of Freeman Geater, which the police already possessed.

Although Officer Marquez’ report fails to mention a second photo, Officer Marquez testified he showed Ms. Conzelman both defendant’s and Freeman Geater’s photos. Ms. Conzelman identified the photo of defendant as that of her attacker. Officer Marquez also testified that Ms. Conzelman stated to him that she had seen defendant numerous times in the downtown area before the attack. Officer Marquez testified that he then took Ms. Conzelman to see defendant in person “for the purpose of making sure that she knew who she was talking about.” Officer Marquez drove Ms. Conzelman to a corner across from the Waukegan Township office. He told Ms. Conzelman that he took her to that area so that “she could view male blacks to see if she could identify the same individual she identified in the photos prior to going to that location.” After having Ms. Conzelman view male blacks in the area for a few minutes, Officer Marquez testified that he got out of his car, went inside and, again, found defendant. He asked defendant to step outside with him but did not tell defendant why. Defendant stood by the door to the building. Officer Marquez then returned to the car, which was parked across the street, and asked Ms. Conzelman if she recognized defendant. She responded “yes,” and Officer Marquez called in other police to arrest defendant. Officer Marquez further testified that defendant consented to a search of his residence and that no evidence of Ms. Conzelman’s property or the clothes she described the attacker as wearing were found at defendant’s place of residence.

After the State rested, defendant moved for a directed verdict, arguing that the State’s evidence was insufficient to convict, especially where Ms. Conzelman’s pretrial identification was gained by impermissibly suggestive procedures which made her in-court identification unreliable. The trial court denied defendant’s motion. Defendant proceeded to call three alibi witnesses. These witnesses were friends and relatives who testified in substance that defendant baby-sat all day on January 6, 1987, and that they had seen defendant at or near the time that Ms. Conzelman was attacked. These alibi witnesses also testified that defendant did not own or wear clothes described by Ms. Conzelman as having been worn by the attacker.

The only evidence presented by the State to prove defendant was the robber was the testimony concerning the pretrial identification by Ms. Conzelman and the testimony of police concerning that identification, along with Ms. Conzelman’s in-court identification of defendant as the robber. No other evidence connecting defendant to the crime was presented to the jury. The jury found defendant guilty.

First, we address defendant’s arguments concerning the allegedly suggestive identification procedures employed by the police. Initially, defendant asserts that Ms. Conzelman’s initial selection of defendant’s and Freeman Geater’s mug shots was somehow mistaken. Defendant does not argue and the record does not indicate that the police or the photographs used in any way influenced the witness’ selection of defendant’s mug shot. Defendant’s argument that Ms. Conzelman’s initial selection of defendant’s mug shot was mistaken goes to the weight not the admissibility of testimony concerning her selection of defendant’s mug shot as closely resembling her attacker. (People v. Johnson (1986), 114 Ill. 2d 170, 499 N.E.2d 1355; People v. Hines (1980), 85 Ill. App. 3d 1047, 407 N.E.2d 853.) Having Ms. Conzelman view over 300 mug shots of black males for 45 minutes, after which, without any prompting, she picked out two mug shots as closely resembling her attacker was not improper police procedure absent any allegation that the procedure was somehow suggestive. See People v. Kavanaugh (1980), 85 Ill. App. 3d 783, 408 N.E.2d 23 (it is proper to use photographic lineups at initial investigatory stage); People v. Wheeler (1979), 71 Ill. App. 3d 91, 388 N.E.2d 1284.

However, the actions of Officer Marquez on January 13, 1987, in which he showed defendant’s updated photo to Ms. Conzelman and then did a one-man showup of defendant were unnecessarily suggestive. The practice of showing suspects singly to persons for purposes of identification and not as part of a lineup has been widely condemned. (Stovall v. Denno (1967), 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967.) Further, where a suspect is in custody or otherwise available for a fair lineup, there is no need to resort to photo arrays. (People v. Holiday (1970), 47 Ill. 2d 300, 265 N.E.2d 634; People v. Kubat (1983), 94 Ill. 2d 437, 447 N.E.2d 247 (photo arrays should not be used unless justified by extenuating circumstances).) In the instant case, it appears a lineup was quite feasible as of January 13, 1987, after defendant had been identified as a possible offender. The police went as far as picking up defendant and taking his photo and then returning him to the township office. Why the police did not conduct a corporeal lineup at that time is not explained by the record. Further, Officer Marquez did not even do a photo lineup but showed Ms. Conzelman only two photos, defendant’s and Freeman Geater’s. While the updated photo of defendant was subsequently lost and therefore not admitted at trial, the updated photo of Freeman Geater shows a black male with a receding hairline that would not have stuck out the front of the attacker’s hat as described by Ms. Conzelman. The procedure employed in the instant case was unnecessarily suggestive. (See People v. Laurenson (1971), 131 Ill. App. 2d 2, 268 N.E.2d 183.) Additionally, immediately after this identification and the witness’ revelation that she has seen defendant in the downtown area on numerous occasions before, Officer Marquez proceeded to perform a one-person showup at the Waukegan Township office in order to make sure the witness “knows who she is talking about,” according to his testimony. This one-person showup appeared to be done in order to reinforce the witness’ prior identification, which the State argues was positive. (See People v. Goodman (1982), 109 Ill. App. 3d 203, 440 N.E.2d 345 (where witnesses identified defendant two weeks earlier from photo array, impermissibly suggestive to take witnesses to defendant’s bond hearing in another matter in order to reinforce -witnesses’ prior identifications).) However, even unnecessarily suggestive identifications or proper identifications made subsequently may be admitted if reliable. Manson v. Brathwaite (1977), 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243.

Reliability has been held to be the linchpin in determining the admission of identification testimony. (Manson v. Brathwaite (1977), 432 U.S. 98, 114, 53 L. Ed 2d 140, 154, 97 S. Ct. 2243, 2253.) The reliability and, hence, the admissibility of allegedly suggestive identifications must be judged by the totality of the circumstances to determine whether admission of such evidence meets the fairness standard of the due process clause of the fourteenth amendment. (Manson v. Brathwaite (1977), 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243.) The elements to be considered in determining reliability include: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated at the time of the confrontation; (5) the length of time between the crime and the confrontation; and (6) any acquaintance with the criminal prior to the crime. (People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313; People v. Morissette (1986), 150 Ill. App. 3d 431, 501 N.E.2d 781.) Under the totality of the circumstances, we find Ms. Conzelman’s identification of January 13, 1987, sufficiently reliable to be admissible under the due process clause of the fourteenth amendment.

Ms. Conzelman had an excellent opportunity to view her attacker at the time of the robbery. She viewed her attacker “face to face” from about one foot away directly beneath one of the parking lot lights and was able to view the attacker’s face again as he left the parking lot.

As to Ms. Conzelman’s degree of attention, it is apparent she had no forewarning of the attack and was only able to focus her attention on the attacker’s face after she let go of her briefcase. However, Ms. Conzelman’s degree of attention was acute enough to remember what the man she saw when she entered the lot was wearing and to realize that her attacker was the same person. See People v. Neal (1987), 155 Ill. App. 3d 340, 346, 508 N.E.2d 452, 456.

Regarding the accuracy of the prior description of defendant, a general description was received over the radio by Officer Runyard. This description could have only come from Ms. Conzelman when she phoned the police. The description was detailed as to clothing and general as to facial characteristics. However, there was nothing about defendant’s facial characteristics that stood out other than his facial hair. The discrepancy as to when Ms. Conzelman first told the police her attacker had facial hair or whether she described her attacker’s hair as being an “afro,” in “dread locks,” or long and curly is particularly a matter of credibility for the jury and does not alone require exclusion of Ms. Conzelman’s identification testimony. People v. Frisby (1987), 160 Ill. App. 3d 19, 34, 512 N.E.2d 1337, 1346; People v. Neal (1987), 155 Ill. App. 3d 340, 346, 508 N.E.2d 452, 456.

Ms. Conzelman and Officer Marquez testified that Ms. Conzelman positively identified defendant from his updated photo as well as at the show up. Further, only seven days had elapsed since the robbery. While Ms. Conzelman failed to mention in her initial descriptions that she had seen defendant several times before the robbery in the downtown area, she did mention this fact either on January 8 or January 13, 1987, and this fact alone does not require exclusion of her testimony. Under the totality of the circumstances, the identification testimony was sufficiently reliable, and the suggestive procedures employed on January 13, 1987, did not create a very substantial likelihood of irreparable misidentification. Accordingly, Ms. Conzelman’s in-court identification was also admissible at trial. People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313; People v. Neal (1987), 155 Ill. App. 3d 340, 508 N.E.2d 452 (in-court identification made in wake of admissible out-of-court identification is admissible).

Having found Ms. Conzelman’s out-of-court and in-court identifications admissible, we next address whether Ms. Conzelman’s identification of defendant, alone, is sufficient to convict beyond a reasonable doubt. It is well established and often stated that identification of the accused by a single eyewitness is sufficient to sustain a conviction, provided the witness viewed the accused under circumstances permitting a positive identification. (People v. Johnson (1986), 114 Ill. 2d 170, 499 N.E.2d 1355.) Further, it is well established that alleged discrepancies or omissions in identification testimony go to the credibility and weight of the testimony, a function properly left to the jury. (People v. Johnson (1986), 114 Ill. 2d 170, 499 N.E.2d 1355.) However, it is equally well established that a conviction cannot be sustained beyond a reasonable doubt solely by an identification of the accused which is vague, doubtful or uncertain. (People v. Ash (1984), 102 Ill. 2d 485, 468 N.E.2d 1153.) In the instant case, Ms. Conzelman had an excellent opportunity to view her attacker and positively identified defendant seven days after the attack. Further, the testimony of defendant’s three alibi witnesses, although uncontradicted by the State, was vague and inconsistent on many details and was of a type which a reasonable jury could have chosen to disregard. (See People v. Clarke (1971), 50 Ill. 2d 104, 277 N.E.2d 866 (rejected argument that victim’s identification testimony in face of uncontradicted alibi testimony created reasonable doubt of the defendant’s guilt).) We find Ms. Conzelman’s identification testimony sufficient to convict defendant beyond a reasonable doubt. See People v. Clarke (1972), 50 Ill. 2d 104, 277 N.E.2d 866; People v. Frisby (1987), 160 Ill. App. 3d 19, 512 N.E.2d 1337; People v. Neal (1987), 155 Ill. App. 3d 340, 508 N.E.2d 452. But see People v. Gardner (1966), 35 Ill. 2d 564, 221 N.E.2d 232; People v. Byas (1983), 117 Ill. App. 3d 979, 453 N.E.2d 1141; People v. King (1973), 10 Ill. App. 3d 652, 295 N.E.2d 258; People v. Laurenson (1971), 131 Ill. App. 2d 2, 268 N.E.2d 183; People v. Martin (1968), 95 Ill. App. 2d 457, 238 N.E.2d 205; People v. Marshall (1966), 74 Ill. App. 2d 483, 221 N.E.2d 133.

Defendant’s next contention on appeal is that he was denied a fair trial by an impartial jury where evidence of his prior criminal activity was erroneously admitted before the jury. Specifically, defendant argues that: (1) the trial court erred in failing to grant defendant’s motion in limine to delete the number “1364” from the border of defendant’s mug shot; (2) the prosecutor prejudiced the jury when he elicited from the State’s witness the fact that defendant’s photo was contained in a “mug book” of “known criminals, [and] arrestees”; and (3) it was plain error, or ineffective assistance of counsel, for the prosecutor and defense counsel to repeatedly refer throughout the whole trial to defendant’s photo as a “mug shot” and to the book in which it was contained as a “mug book,” thereby alerting the jury to defendant’s prior criminal record and/or arrests which were totally unrelated and irrelevant to defendant’s trial on the robbery charge.

As to defendant’s arguments concerning the identification number on the border of defendant’s photo admitted at trial, the record clearly shows defendant was objecting to admission of other photos in which defendant and Freeman Geater had police department identification signs hanging from their necks. These photos were never admitted at trial. The photo of defendant admitted at trial was not a typical “mug shot” from which a jury would necessarily infer prior convictions or arrests. (See People v. Wheeler (1979), 71 Ill. App. 3d 91, 388 N.E.2d 1284 (involved admission of mug shots in which suspect was shown in frontal and profile view or on which police department legend or arrest date was indicated).) Defendant’s photo admitted at trial showed defendant facing forward from the waist up and standing against a plain white brick wall. Any argument that the number “1364” stuck on the bottom border of this photo led the jury to infer defendant’s prior convictions or arrests is vague and speculative and does not require reversal. People v. Loggins (1985), 134 Ill. App. 3d 684, 693-94, 480 N.E.2d 1293,1300.

It is not disputed that the photo of defendant which Ms. Conzelman initially picked as resembling her attacker was probative and admissible on the issue of identification. (People v. Wheeler (1979), 71 Ill. App. 3d 91, 388 N.E.2d 1284.) Defendant argues that since the photo was probative on the issue of identification but did not carry with it the prejudical inference of prior criminal activity often found in other “mug shots,” the repeated reference of both the prosecutor and defense counsel to “mug books” and “mug shots” along with Officer Runyard’s testimony that defendant’s photo was picked out of a “mug book” of “known criminals, [and] arrestees” was prejudicial and denied him a fair trial where the evidence was closely balanced, and he was convicted solely on the basis of Ms. Conzelman’s identification testimony. Defendant did not testify in his own defense.

Evidence that tends to show an accused has committed crimes or acts of misconduct which are distinct or entirely unrelated to the ones for which he is being tried are generally both incompetent and prejudicial. (People v. Eliason (1983), 117 Ill. App. 3d 683, 453 N.E.2d 908; People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238 (erroneous admission of evidence of other crimes carries high risk of prejudice and ordinarily calls for reversal).) Where incompetent evidence of other offenses, unrelated to the current offense, is contained in otherwise competent evidence, such irrelevant material should be deleted unless to do so would seriously impair its evidentiary value. People v. Oden (1960), 20 Ill. 2d 470,170 N.E.2d 582.

In the instant case, the prosecutor had already elicited the fact that Ms. Conzelman viewed “photos [of male blacks] in books in the detective bureau.” The prosecutor then asked Officer Runyard what these books are commonly called, and Officer Runyard responded “mug books.” Defense counsel’s objection to this answer was sustained. The prosecutor then asked what was contained in these books. Officer Runyard responded “current mug shots of known criminals, [and] arrestees.” Defense counsel again objected. The trial court sustained the objection, struck the answer and stated “the jury is instructed to disregard it.” Defense counsel approached the bench and moved for a mistrial, and the trial court denied the motion but warned the prosecutor, “Don’t ever pull that again in my courtroom.” The State argues that the prosecutor did not intentionally elicit Officer Runyard’s improper testimony. Whether the prosecutor’s elicitation of such testimony was accidental does not answer the question of whether such testimony was prejudicial to defendant’s right to a fair trial in the instant case. The State also argues that any error was harmless because defense counsel also used the terms “mug shot” and “mug book” and failed to object at other times when the prosecutor used those terms. We note that the prosecutor has a duty to ensure a fair trial for defendant and a failure by defense counsel to object does not alleviate that duty. See People v. Oden (1960), 20 111. 2d 470, 170 N.E.2d 582.

The issue is whether evidence of defendant’s prior criminal activity, whether as a result of plain error, the ineffective assistance of counsel or deliberate acts of the prosecutor, was harmless error or prejudiced defendant’s right to a fair trial. Where other properly admitted evidence is not so overwhelming that no fair-minded jury could have voted for acquittal, improperly admitted evidence is reversible error. (People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238.) Further, the trial court’s sustaining of an objection to improper testimony and a general instruction to disregard does not necessarily eradicate the effect of improper evidence upon the minds of a jury. (People v. McCray (1978), 60 Ill. App. 3d 487, 377 N.E.2d 46.) In the instant case, the trial of defendant could have been conducted without improper reference to prior criminal convictions or arrests. Defendant chose not to testify to avoid being impeached by his prior crimes. The mug shot introduced at trial was not the type which necessarily would lead to an inference of prior arrests or crimes. Although we have determined the evidence was sufficient to convict beyond a reasonable doubt, defendant is entitled to have his guilt or innocence determined by the jury without improper and prejudicial matters being erroneously interjected. (People v. Popely (1976), 36 Ill. App. 3d 828, 345 N.E.2d 125; see People v. Emerson (1983), 97 Ill. 2d 487, 455 N.E.2d 41. (where guilt or innocence depends entirely upon testimony of the accuser and defendant, no error should be permitted to intervene).) Here, the record fails to affirmatively show that the repeated and improper references to mug shots and mug books along with the improper testimony elicited from Officer Runyard by the prosecutor were not prejudicial to defendant’s right to a fair trial, and, therefore, the judgment must be reversed and the cause remanded to the circuit court for a new trial. (People v. Emerson (1983), 97 Ill. 2d 487, 455 N.E.2d 41.) In light of our disposition of this appeal, we need not address defendant’s other arguments on appeal.

The judgment of the circuit court of Lake County is reversed, and the cause is remanded for a new trial.

Reversed and remanded.

UNVERZAGT, RJ., and INGLIS, J., concur.


source: Caselaw Access Project

author: JUSTICE REINHARD

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMIE LEE TURNER, Defendant-Appellant.
    Second District
    No. 2—87—0988
    Opinion filed February 1, 1989.
    Rehearing denied March 8, 1989.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Robert Agostinelli and Thomas A. Lilien, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers, John X. Breslin, and Nancy Rink Carter, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Jamie Lee Turner, following a jury trial in the circuit court of Du Page County, was found guilty of forgery (Ill. Rev. Stat. 1985, ch. 38, par. 17 — 3(a)(1)) and illegal use of a credit card (Ill. Rev. Stat. 1985, ch. 17, par. 5921) and was sentenced to concurrent terms of imprisonment of 364 days on the illegal use of credit card conviction and three years on the forgery conviction, with credit for 69 days served on the forgery conviction. The forgery conviction also was to be served concurrently with three other separate felony convictions.

Defendant appeals the forgery conviction only and raises the following issues: (1) whether the State proved venue in Du Page County beyond a reasonable doubt and, alternatively, whether the jury should have been instructed that the State must prove venue; (2) whether the State proved beyond a reasonable doubt that the check was apparently capable of defrauding another; (3) whether the trial court erred in failing to instruct the jury that the State must prove the check was a document apparently capable of defrauding another, an essential element of the offense of forgery; (4) whether the trial court erred by permitting the admission of hearsay evidence, by prohibiting a defense witness from testifying for failure to disclose the witness in discovery, by prohibiting defendant from testifying to a relevant conversation, and by overruling objections to the prosecutor’s improper final arguments; and (5) whether a new sentencing hearing on the forgery conviction should be granted where the prosecutor breached a plea agreement regarding credit for time served made in conjunction with dispositions in other charges against defendant.

The following relevant facts were adduced at trial. On November 26, 1986, at approximately 8 p.m., Terry Foote, a limousine driver, picked up defendant in a limousine at the comer of Bloomingdale and Army Trail Roads. Foote believed the person he picked up was a Mr. Oldham. Shortly after picking up defendant, Foote asked him how he was going to pay for the limousine service to which defendant answered that he was going to pay with a check. Foote then requested a driver’s license as identification, but defendant said he did not have one. Foote then asked for a credit card for purposes of identification, and defendant gave him a credit card. The evidence establishes that the credit card belonged to William Oldham. Foote made an impression of the card, retained the receipt, and returned the card to defendant.

According to Foote, he drove to Aurora, where defendant went into a house, entered several different bars, brought people out and went for rides in the limousine, then he and defendant drove back to Route 59. At around 11 p.m., he drove defendant to a mall with a restaurant which is located along Route 59. Foote testified, over hearsay and foundational objections, that while defendant was in a rest room he radioed his dispatcher to check the validity of the credit card which defendant had given him. After defendant had reentered the limousine and Foote was again driving northbound on Route 59, the dispatcher responded that Foote should confiscate the card because it was bad. Defendant asked what credit card they were talking about to which Foote responded that it was a previous customer’s card.

Foote continued to drive north on Route 59, but stopped again, and defendant entered another bar. At that point, Foote requested that the dispatcher have the police respond because he did not think he was going to be paid. Before the police could respond, defendant reentered the limousine and requested Foote to continue north on Route 59. According to Foote, they continued to go from one establishment to another and were never in one place long enough for the police to arrive.

As Foote drove north on Route 59 near Joliet Road, he observed a squad car involved in a traffic stop, pulled the limousine in behind the squad car, exited the limousine, and asked the police officer for help. Another officer arrived shortly thereafter.

Defendant told the officers that he was William Oldham, but one of them recognized defendant and told him that he knew he was Jamie Turner and not William Oldham. Defendant told the officers that William Oldham was a friend of his and that he had given him permission to use his . credit card. The police dispatcher then attempted to telephone Oldham to verify defendant’s story but was unable to contact him.

One of the officers then asked defendant for the credit card, but defendant responded that he had given it to the limousine driver. Defendant consented to a search of his pockets which produced several credit card receipts with William Oldham’s name imprinted on them. The officers also found a credit card invoice in the front of defendant’s pants. A search of the area around the limousine failed to produce the missing credit card.

At around 7 a.m. that morning, the officers returned to the scene to search for the credit card. They discovered a credit card in the grass with William Oldham’s name on it as well as three checks in the area where the credit card was found with William Oldham’s name printed on them.

One of the checks found at the scene was made out for $265, dated November 27, 1986, signed as William R. Oldham, but had no payee’s name on it. The State and defendant stipulated to the expert opinion of a handwriting analyst that the handwriting on that check, which defendant is charged with forging, is that of defendant.

William Oldham testified that he knew defendant for several weeks prior to defendant’s arrest. Defendant had been in Oldham’s home three or four times. According to Oldham, his Master Card and approximately five checks were stolen from his home. He never gave defendant permission to use the credit card or to sign his name on the check found at the scene. Nor did he sign the check.

Oldham stated that on November 12, 1986, he and defendant went to East Aurora and picked up a guy and two girls and they all returned to Oldham’s home. He noticed his credit card missing several days later and reported it missing about one week later. He later notified the police.

Defendant took the stand in his own behalf and attempted to testify only to a conversation he had with Oldham on November 28, 1986, the day after the limousine incident. The State’s objection on relevancy grounds was sustained, however, and defendant did not testify further or offer any other witnesses or evidence.

We shall address first defendant’s contention that he should be granted a new trial because the trial court, sua sponte, failed to instruct the jury that the check allegedly made by defendant was a document apparently capable of defrauding another, an essential element of the offense of forgery. The State responds initially that the issue is waived by defendant’s failure to object to the issues instruction submitted by it and given by the trial court, by defendant’s failure to offer an instruction including this element, and by defendant’s failure to include this issue in his written post-trial motion. The State also maintains that the issues instruction given by the trial court, although not including this element, was sufficient, and the jury, by necessary implication, concluded that the check in question was apparently capable of defrauding another. The State further argues that any error in failing to include this element in the issues instruction was harmless.

As the State correctly points out, defendant failed to object to the issues instruction tendered by the State, to offer an alternative instruction, or to include the issue in his post-trial motion. Generally, a defendant who fails to object or to proffer an alternative instruction at trial, or to raise the issue in a post-trial motion, waives any error contained in the jury instructions. (People v. Reddick (1988), 123 Ill. 2d 184, 198, 526 N.E.2d 141.) If the interests of justice require, however, substantial defects in jury instructions in criminal cases may be considered, even though the defendant failed to make timely objections. (107 Ill. 2d R. 451(c); Reddick, 123 El. 2d at 198, 526 N.E.2d at 147.) This exception applies to correct grave errors or to correct errors in cases where the evidence is closely balanced that fundamental fairness requires instruction of the jury. (Reddick, 123 Ill. 2d at 198, 526 N.E.2d at 147.) Instruction to the jury on the elements of an offense is essential to a fair trial, and the failure to give such instruction constitutes grave error when, viewing the record as a whole, it appears that the jury was not apprised of the State’s burden of proof, and, therefore, the waiver rule does not apply. (Reddick, 123 Ill. 2d at 198, 526 N.E.2d at 147; see also People v. Ogunsola (1981), 87 Ill. 2d 216, 222-23, 429 N.E.2d 861.) Here, defendant argues that an essential element of forgery, as charged in the information and contained in the forgery statute, is that the forged instrument is apparently capable of defrauding another.

Section 17 — 3(aXl) of the Illinois Criminal Code of 1961 states:

“Sec. 17 — 3. Forgery, (a) A person commits forgery when, with intent to defraud, he knowingly:
(1) Makes or alters any document apparently capable of defrauding another in such manner that it purports to have been made by another or at another time, or with different provisions, or by authority of one who did not give such authority ***.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 38, par. 17— 3(a)(l).

The appellate court has held that it is an element of the offense of forgery that the document made or altered be apparently capable of defrauding another. (People v. Toolen (1983), 116 Ill. App. 3d 632, 654, 451 N.E.2d 1364; People v. Tarkowski (1982), 106 Ill. App. 3d 597, 601, 435 N.E.2d 1339; People v. Kent (1976), 40 Ill. App. 3d 256, 261, 350 N.E.2d 890.) Here, the information, in pertinent part, charges that defendant “with the intent to defraud, knowingly made a document apparently capable of defrauding another.” However, neither the instruction defining the offense of forgery nor the issues instruction listing the elements of the offense on which the State had the burden of proof contained the element that the document was apparently capable of defrauding another. Accordingly, because the trial court did not instruct the jury regarding the element that the document was apparently capable of defrauding another and the jury was not otherwise so informed by the court or counsel, this constitutes grave error, and defendant was denied a fair trial.

The State relies, however, on People v. Kent (1976), 40 Ill. App. 3d 256, 350 N.E.2d 890, where the appellate court found that, although the trial court refused to instruct on the element that the document was apparently capable of defrauding another, any possible error was harmless because the jury found the defendant guilty of delivery of a forged check, which by implication indicated the document was apparently capable of defrauding. Kent is distinguishable from the instant case, as in Kent the defendant was charged with delivery of a forged instrument, not making the check as in the instant case. More importantly, recent Illinois Supreme Court cases have held that certain instructions such as the instruction setting forth the elements of the offense are essential to a fair trial and the failure to give such an instruction constitutes grave error (see, e.g., People v. Reddick (1988), 123 Ill. 2d 184, 198-99, 526 N.E.2d 141; People v. Ogunsola (1981), 87 Ill. 2d 216, 222-23, 429 N.E.2d 861), which we find control over the decision in Kent.

Finally, we note that the most recent version of the IPI Criminal Jury Instructions defines forgery, in part, as:

“A person commits the offense of forgery when he, with intent to defraud, knowingly
[ 1 ] makes or alters a_apparently capable of defrauding so that it appears to have been made [(by another) (at another time) (with different provisions) (by authority of one who did not give such authority)].” (Emphasis added.) (Illinois Pattern Jury Instructions, Criminal, No. 13.25 (2d ed. Supp. 1987).)

The issues instruction further states:

“To sustain the charge of forgery, the State must prove the following propositions:
First: That the defendant knowingly made or altered a _so that it appeared to have been made [(by another) (at another time) (with different provisions) (by authority of one who did not give such authority)]; and
Second: That the defendant did so with intent to defraud _; and
Third: That the _ was apparently capable of defrauding.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.” (Emphasis added.) (Illinois Pattern Jury Instructions, Criminal, No. 13.26 (2d ed. Supp. 1987).)

The language “apparently capable of defrauding” was not contained in the prior version of these instructions and was apparently added in response to People v. Kent (1976), 40 Ill. App. 3d 256, 350 N.E.2d 890. (See Illinois Pattern Jury Instructions, Criminal, Nos. 13.25, 13.26, Committee Note (2d ed. Supp. 1987).) Understandably, the trial judge did not instruct on this element, as the IPI issues instruction for forgery then in existence did not contain this element as a part of the State’s burden of proof. Nevertheless, the forgery statute and existing case law clearly indicate that one of the elements of forgery by making is that the check was apparently capable of defrauding another and provide the basis for instruction on this issue even before the recent supplement to the IPI Criminal Jury Instructions.

Although this error is a basis for reversal of the forgery conviction and remandment for a new trial, we must also examine defendant’s contentions that he was not proved guilty beyond a reasonable doubt. (See People v. Taylor (1979), 76 Ill. 2d 289, 309, 391 N.E.2d 366.) Defendant maintains that the State failed to prove him guilty beyond a reasonable doubt of forgery because the check, which does not include a payee, is not an instrument apparently capable of defrauding another. Specifically, defendant argues the check in this case was not apparently capable of defrauding another because without a payee’s name it lacked legal efficacy or the capacity to affect the rights of another. The State responds that the check was apparently capable of defrauding another because a reasonable and ordinary person might be deceived into accepting it as a true and genuine document even though it did not have the name of the payee on it.

Section 17 — 3(c) states in pertinent part:

“A document apparently capable of defrauding another includes, but is not limited to, one by which any right, obligation or power with reference to any person or property may be created, transferred, altered, or terminated.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 38, par. 17 — 3(c).)

The test of whether a forged instrument is apparently capable of defrauding another is whether a reasonable or ordinary person might be deceived into accepting the document as genuine. (People v. Bokuniewicz (1987), 160 Ill. App. 3d 270, 274, 513 N.E.2d 138; People v. Tarkowski (1982), 106 Ill. App. 3d 597, 601, 435 N.E.2d 1339.) An instrument need not be in “due legal form” or so skillfully prepared that it requires an expert to detect the forgery to be found capable of defrauding another. Tarkowski, 106 Ill. App. 3d at 601, 435 N.E.2d at 1343.

Here, the only part of the check that was incomplete was the name of the payee. Defendant completed the date, signature, and amount portions of the check. Such an instrument may be capable of deceiving an ordinary and reasonable person into accepting it as genuine, if so found by the trier of fact. For instance, it is common knowledge that under some circumstances checks are accepted that have the payee portion blank, which will be then filled out or stamped by the person receiving the check. Thus, there was sufficient evidence for the jury to find that the check made out for $265 and signed “William R. Oldham” was apparently capable of defrauding an ordinary and reasonable person even though the payee portion remained blank.

Defendant relies on People v. Nickols (1945), 391 Ill. 565, 63 N.E.2d 759, and People v. Moats (1972), 8 Ill. App. 3d 944, 291 N.E.2d 285. Both of those cases, however, addressed the sufficiency of the charging instrument. In Nickols, the supreme court found the indictment to be deficient because the purport clause stated that defendant had committed a forgery by making a check payable to a specific person, but the tenor clause, which set forth the check, did not name a payee. (Nickols, 391 Ill. at 568-70, 63 N.E.2d at 761-62.) The court emphasized that the purport and tenor clauses were inconsistent in that the purport clause set forth that defendant made a check payable to a specific person, whereas the tenor clause did not specify a payee nor did it constitute a check. Thus, the court held that the indictment was fatally flawed because of the inconsistencies between the tenor and purport clauses. Nickols, 391 Ill. at 570, 63 N.E.2d at 761.

In Moats, the information failed to set forth a payee or an amount in the purport clause and did not contain a tenor clause description. (Moats, 8 Ill. App. 3d at 945, 291 N.E.2d at 286.) The court addressed the issue of whether such an instrument was apparently capable of defrauding another. In concluding that the information did not properly charge an offense, the court relied, in part, on the Nickols court’s definition of a check. (Moats, 8 Ill. App. 3d at 946, 291 N.E.2d at 287. ) Such reliance, however, is misplaced because in Nickols the purport clause used the word “check” and, therefore, the tenor clause, to be consistent, must have set forth a check as well. Therefore, in Nickols, the fact that the tenor clause failed to set forth a check resulted in a legally deficient indictment not because the forged instrument was not a check, but rather, because the purport clause used such terminology and, therefore, the tenor clause also needed to set forth a check. Nickols does not stand for the proposition, as Moats and the defendant here suggest, that an instrument that does not name a payee is not apparently capable of defrauding another.

Additionally, the information in Moats failed to set forth any language regarding a “document apparently capable of defrauding another” which the appellate court found to be insufficient in terms of the statutory language. (Moats, 8 Ill. App. 3d at 947, 291 N.E.2d at 288. ) Furthermore, the purport clause in Moats failed to set forth not only a payee, but also an amount. As such, the forged instrument is less likely to deceive a reasonable and ordinary person into believing it is genuine. Thus, Moats is also distinguishable from the present case in those respects.

Defendant also contends that his forgery conviction should be reversed because the State failed to prove beyond a reasonable doubt that the forged check was made in Du Page County. It is well established that the charge that a crime was committed in a particular county is a material averment and must be proved beyond a reasonable doubt to sustain a conviction. (People v. Pride (1959), 16 Ill. 2d 82, 86, 156 N.E.2d 551.) Venue may be proved by circumstantial evidence, and if, from the facts appearing in evidence, the only rational conclusion which can be drawn is that the offense was committed in the county alleged, it is sufficient. People v. Mowry (1955), 6 Ill. 2d 132,139-40,126 N.E.2d 683.

Here, the undisputed evidence testified to by Foote, the limousine driver, was that all the events of that evening occurred within Du Page County. Defendant was picked up in Du Page County at approximately 8 p.m. on November 26, 1986, and left off at his home in Du Page County at approximately 3:30 a.m. on November 27, 1986. Additionally, although the check was not found in defendant’s possession, it was found near where the police first encountered defendant at Route 59 and Joliet Road in Du Page County. It is undisputed that the check was in defendant’s handwriting, was dated November 27, 1986, and was in an amount sufficient to pay for defendant’s limousine charges, which defendant had earlier said he would pay for by check.

The only rational conclusion from this uncontroverted evidence is that defendant made the check out while riding with Foote throughout the hours immediately preceding the encounter with the police in the late evening hours on November 26 or early morning hours on November 27 while defendant was in Du Page County. Further, defendant’s home is in Du Page County, and there is no evidence that defendant made the check in another county, as in People v. Smith (1980), 91 Ill. App. 3d 242, 414 N.E.2d 751, relied on by defendant, where the defendant therein was charged with making a forged prescription originating in a hospital in another State and dated two days prior to its delivery in a county in Illinois, and where the defendant gave a statement that the prescription had been filled out at the Missouri hospital before he received it. Unlike Smith, where the appellate court found insufficient evidence to prove venue, the State’s uncontroverted evidence here sufficiently establishes venue in Du Page County.

Because the case must be remanded for a new trial on the forgery offense, we will address only those other issues raised which may recur upon retrial. Defendant contends that it was error not to instruct the jury, as he requested, that the State must prove venue. The jury must be instructed that the State is required to prove beyond a reasonable doubt that each element of the charged offense occurred in the county in which the crime was alleged to have been committed if the evidence raises a question of the propriety of venue. (People v. Chaney (1987), 157 Ill. App. 3d 552, 563, 510 N.E.2d 997; People v. McClain (1978), 60 Ill. App. 3d 320, 322, 376 N.E.2d 774.) There is no need to so instruct the jury, however, where venue was not a controverted issue in this case. (People v. Anderson (1934), 355 Ill. 289, 303, 189 N.E. 338.) Here, the evidence in the record before us is uncontroverted. Defendant offered no evidence that the check was made anywhere other than in Du Page County, nor did defendant challenge the testimony of Foote. On retrial, the trial court, applying the law set forth above, should determine if defendant has offered any evidence to controvert the State’s evidence as to venue should defendant again seek an instruction which would include that the State must prove venue in Du Page County.

Defendant also contends that it was error to allow Foote to testify about a conversation he had with a radio dispatcher who advised Foote that the credit card was bad. Defendant submits that this conversation was inadmissible hearsay evidence. Hearsay is defined as testimony of an out-of-court statement offered to establish the truth of the matter asserted therein, and resting for its value upon the credibility of the out-of-court asserter. (People v. Rogers (1980), 81 Ill. 2d 571, 577, 411 N.E.2d 223.) Where evidence is offered for an independent purpose other than establishing the truth of the matter asserted, it is not hearsay. (Thornton v. University Civil Service Merit Board (1987), 154 Ill. App. 3d 1016, 1021, 507 N.E.2d 1262.) If an out-of-court statement is introduced for the purpose of explaining an actor’s conduct, and not for the purpose of establishing the truth or falsity of the statement, it does not constitute hearsay. (People v. Pirrello (1988), 166 Ill. App. 3d 614, 618-19, 520 N.E.2d 399; see M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §801.5, at 516 (4th ed. 1984).) Here, the testimony explained why Foote stopped when he observed a police car and is admissible provided the jurors are instructed as to the limited purpose of the evidence and that they are not to consider the truth or falsity of the statement. See Pirrello, 166 Ill. App. 3d at 619, 520 N.E.2d at 403; People v. Canity (1981), 100 Ill. App. 3d 135,150-51, 426 N.E.2d 591.

Defendant further contends that it was error for the trial court to prohibit him from testifying to a conversation he had with William Oldham a day after the offense. The defendant sought to testify that he told Oldham that he had run into problems with the credit card and checks Oldham had given him and that Oldham had told him not to worry about it that he would take care of it, that he had insurance on the credit card, and Oldham gave him more checks. The prosecutor’s objection, on the ground that the later conversation was irrelevant to consent at the time of the use of the card, was sustained.

A defendant is entitled to all reasonable opportunities to present exculpatory evidence (People v. Reese (1984), 121 Ill. App. 3d 977, 988, 460 N.E.2d 446); however, a trial court may reject offered evidence on grounds of relevancy. (People v. Ward (1984), 101 Ill. 2d 443, 455, 463 N.E.2d 696.) The test of whether evidence is relevant, and therefore admissible, is whether it tends to make the question of guilt more or less probable. (Ward, 101 Ill. 2d at 455, 463 N.E.2d at 702.) Evidence may be rejected as irrelevant if it has little probative value due to its remoteness, uncertainty, or possible unfair prejudicial nature. (Ward, 101 Ill. 2d at 455, 463 N.E.2d at 702.) The admission of evidence is within the sound discretion of the trial court and should not be reversed absent a clear showing of abuse of that discretion. (Ward, 101 Ill. 2d at 455-56, 463 N.E.2d at 702.) We believe this evidence was relevant to the defense that defendant had consent to use the credit card and check and, therefore, on retrial should be admitted.

The other issues raised either will not recur or are problematic, depending on what occurs on retrial, such that we need not address them in this opinion.

For the foregoing reasons, the judgment of conviction of forgery is reversed, and the cause is remanded for a new trial.

Reversed and remanded.

McLaren and WOODWARD, JJ., concur.


text:
    HALIL PUSKAR et al., Indiv. and as Officers, Directors and Shareholders of American Eagle Manufacturing Company, Inc., Plaintiffs-Appellees and Counterdefendants, v. DAVID E. HUGHES et al., Defendants-Appellants and Counter plaintiffs.
    Second District
    No. 2—88—0269
    Opinion filed January 13, 1989.
    Rehearing denied February 16, 1989.

      Elizabeth L. Krueger, P.C., of Wheaton (Kevin F. Lynch, of counsel), for appellants.
    Trent, Levato & Kotche and Douglas P. Trent, of Law Office of Douglas P. Trent, both of Wheaton, and Nigro & Westfall, of Glendale Heights (James W. Hathaway, of counsel), for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiffs, Halil and Tahira Puskar, brought suit in the circuit court of Du Page County seeking, alternatively, specific performance or damages for the breach of a contract for the sale of a corporation to defendants, David and Charles Hughes. David Hughes filed a counterclaim seeking rescission of the contract and return of monies paid thereunder. Following a bench trial, the circuit court granted rescission of the agreement, offsetting against the return of the consideration tendered by defendants under the contract sums that the court found defendants owed to plaintiffs, and entered judgment in favor of plaintiffs in the amount of $3,640.

David and Charles Hughes were represented by separate counsel at trial. While both filed a notice of appeal, Charles Hughes has failed to prosecute his appeal and therefore his appeal is dismissed. Only David Hughes is a party to the instant appeal.

David Hughes raises the following issues on appeal: (1) whether the circuit court erred in finding that defendants owed plaintiffs certain sums after the court rescinded the contract; (2) whether the circuit court erred in assessing these sums based on the evidence adduced; and (3) whether the circuit court erred in granting relief to plaintiffs who had unclean hands.

Evidence adduced at trial establishes the following facts. On July 14, 1986, plaintiffs and defendants executed a written agreement for the sale of American Eagle Manufacturing Co., Inc. (American Eagle), a corporation of which plaintiffs were the sole shareholders, to defendants.

The agreement for the sale of American Eagle provided that defendants were to make a down payment of $100,000 upon execution of the agreement, to be followed by a final payment of $436,000 within 90 days of execution. As additional consideration, defendants agreed to forgive all debts owing them from plaintiffs which had arisen during the preceding 12 months. Plaintiffs agreed to sign over their stock certificates in American Eagle to defendants and place the certificates in escrow for delivery to defendants upon tender of the final payment of $436,000. The agreement provided that defendants were to take possession of the business and operate it according to their best business judgment as of the date of execution.

The agreement, as clarified by a supplemental agreement, represented that plaintiffs owned certain patents and assigned the patents to defendants. Further, the sale agreement represented that defendants were aware of certain lawsuits pending against American Eagle and lawsuits in which American Eagle had entered into settlement agreements; that defendants were accorded an opportunity to inspect American Eagle’s books and records and were aware of American Eagle’s outstanding liabilities; and that the written agreement constituted the complete agreement between the parties. Testimony at trial indicates that during the period preceding the execution of the sale agreement, Halil Puskar made representations as to the cost at which American Eagle’s equipment had been purchased. Puskar further represented that American Eagle’s equipment, with the exception of one particular machine, was not subject to any liens or encumbrances.

Shortly after execution of the sale agreement, defendants moved American Eagle’s equipment from American Eagle’s shop in Bensenville to a location in Rockford.

Halil Puskar and David Hughes had known each other for approximately a year and a half prior to the sale of American Eagle. David Hughes testified that he and Halil Puskar had developed a very close friendship prior to the transaction. David Hughes had, on several occasions, made substantial loans to Halil Puskar.

In 1984, Halil Puskar had purchased a used Giddings and Lewis machine from David Hughes. Puskar traded two machines he owned for a $14,000 credit against the purchase price of the Giddings and Lewis machine. Puskar testified that the Giddings and Lewis machine was never functional.

Subsequent to entering into the July 14, 1986, agreement, defendants discovered that American Eagle’s equipment and accounts receivable had been pledged as collateral to secure certain indebtedness. Additionally, David Hughes testified that they also later discovered debts of American Eagle which were not included in a list of American Eagle’s outstanding debts provided them by plaintiffs. Furthermore, American Eagle had been involuntarily dissolved on October 1, 1985, for failure to pay franchise taxes. Charles Hughes testified that during negotiations for the purchase of American Eagle it was his understanding that American Eagle was properly incorporated.

Defendants had tendered $100,000 upon execution of the sale agreement and thereafter had tendered an additional $14,000. No further payments were made. Plaintiffs filed their complaint seeking specific performance of the sale agreement or, alternatively, replevin of the physical assets of American Eagle and damages for breach of the contract for sale of the corporation.

David Hughes filed a countercomplaint alleging that plaintiffs had misrepresented the value of American Eagle’s assets, the state of title to American Eagle’s equipment, the nature of patents owned by plaintiffs, and the corporate status of American Eagle. He sought reformation or rescission of the agreement. In his count for rescission, David Hughes sought return of all monies paid to plaintiffs pursuant to the agreement. Charles Hughes filed a separate countercomplaint seeking reformation of the agreement and an award of damages.

At trial, Halil Puskar testified that he was familiar with the customary rental value of various machinery and that the rental value of two particular machines owned by American Eagle was $3,700 a month each. Plaintiffs, during their case in chief, also sought to introduce the testimony of Julius Starks as to the cost of returning American Eagle’s equipment from Rockford to Bensenville. Starks was barred from testifying because of plaintiffs’ failure to disclose him as an expert witness pursuant to Supreme Court Rule 220 (107 111. 2d R. 220). Plaintiffs immediately thereafter disclosed Starks to defendants and, over defendants’ objections, once again offered Starks’ testimony during plaintiffs’ case in rebuttal. Starks’ testimony was allowed and Starks testified that he estimated a cost of $35,000 to move the equipment from Rockford to Bensenville. Halil Puskar testified that it would cost $15,000 to electrify the equipment upon its return to Bensenville.

The circuit court determined that the sale agreement was null and void. A subsequent order amended this order adding that “the contract is rescinded.” The court found that plaintiffs owed defendants the $114,000 down payment under the agreement and $62,000 representing loans from defendants to plaintiffs, which had been forgiven under the agreement, totalling $176,000. The circuit court determined that defendants owed plaintiffs $1,140 for one month’s rent of the Bensenville premises, $114,500 representing the rental value of American Eagle’s equipment, $35,000 to return the equipment to Bensenville, $15,000 to electrify the equipment, and $14,000 representing the value of two machines traded by plaintiffs for the Giddings and Lewis machine, totalling $179,640. The circuit court entered judgment in favor of plaintiffs in the amount of $3,640.

Neither of the parties to the appeal contests the availability of the remedy of rescission in the instant case. Rather, they dispute whether the judgment of the circuit court constitutes a proper application of the principles underlying the remedy of rescission. David Hughes contends that the circuit court erred in awarding certain credits to plaintiffs and offsetting these credits against amounts paid by defendants under the contract for the sale of American Eagle. He contends that the circuit court should have awarded to him, under his counterclaim, the full amount paid under the contract without such setoff.

Plaintiffs maintain, however, that a judgment of rescission must return the party against whom rescission is sought to the status quo preceding the contract. Thus, plaintiffs argue, the trial court, in its grant of rescission, properly awarded plaintiffs certain credits so that both parties would be returned to the positions they occupied prior to the contract. Plaintiffs also briefly state that David Hughes should not be allowed to recover the $100,000 down payment because, they contend, the evidence shows that Charles Hughes made this down payment. Plaintiffs have cited no authority for this proposition and it is without merit. Here, the agreement was between both David Hughes and Charles Hughes and plaintiffs and, as between the parties, upon rescission plaintiffs must return all consideration under the contract whether paid by Charles or David Hughes. We express no opinion as to the relative right as between David and Charles Hughes to the $100,000 down payment, as that was not an issue in this court or below.

Generally, rescission means the cancelling of a contract so as to restore the parties to their initial status. (Horan v. Blowitz (1958), 13 Ill. 2d 126, 132, 148 N.E.2d 445.) Where a contract is rescinded, the rights of the parties under that contract are vitiated or invalidated. (Koretz v. All American Life & Casualty Co. (1968), 102 Ill. App. 2d 197, 203, 243 N.E.2d 586.) A court of equity may grant the remedy of rescission where there has been some fraud in the making of a contract, such as an untrue statement or the concealment of a material fact (Chapman v. Hosek (1985), 131 Ill. App. 3d 180, 186, 475 N.E.2d 593; Lukas v. Lightfoot (1985), 131 Ill. App. 3d 566, 569, 476 N.E.2d 1), or where one party enters into a contract reasonably relying on the other party’s innocent misrepresentation of a material fact. Giacomazzi v. Urban Search Corp. (1980), 86 Ill. App. 3d 429, 432, 407 N.E.2d 621; Geist v. Lehmann (1974), 19 Ill. App. 3d 557, 560, 312 N.E.2d42.

Plaintiffs correctly note that inherent in the remedy of rescission is the return of the parties to their proper precontract positions. Rescission is an equitable doctrine, and a party seeking rescission must restore the other party to the status quo existing at the time the contract was made. (Hakala v. Illinois Dodge City Corp. (1978), 64 Ill. App. 3d 114, 120, 380 N.E.2d 1177.) This rule applies even where the party against whom rescission is sought has committed fraud. Wilbur v. Potpora (1984), 123 Ill. App. 3d 166, 172, 462 N.E.2d 734; In re Estate of Neprozatis (1978), 62 Ill. App. 3d 563, 570-71, 378 N.E.2d 1345.

Plaintiffs maintain that in granting rescission of the contract, the circuit court properly restored them to the status quo by charging defendants for the rental value of equipment and the Bensenville premises and charging defendant for the cost of returning the equipment to Bensenville and electrifying it. Defendant argues, however, that these particular charges could only arise from a contractual arrangement between the parties and that, because the effect of an order of rescission is to render the contract void ab initio, such charges are improper.

Restoration of the status quo initially requires return of any property or other consideration that has passed to the rescinding party under the contract (In re Estate of Neprozatis (1978), 62 Ill. App. 3d 563, 570, 378 N.E.2d 1345; Corbett v. Devon Bank (1973), 12 Ill. App. 3d 559, 573-74, 299 N.E.2d 521), and also generally requires the rescinding party to account for any benefits received from the other party under the contract. Finke v. Woodard (1984), 122 Ill, App. 3d 911, 462 N.E.2d 13, cited by plaintiffs, states that “[w]here rescission is awarded then, the proper measure of recovery is restitution of the consideration and other benefits received by the parties under the contract.” (Emphasis added.) Finke, 122 Ill. App. 3d at 919, 462 N.E.2d at 19.

The remedy provided a victim of misrepresentation in the Restatement (Second) of Contracts supports the view that a rescinding party must account for benefits he has received. Section 376 of the Restatement (Second) of Contracts provides that a party who has avoided a contract on the ground of mistake or misrepresentation is entitled to restitution for any benefit that he has conferred on the other party by way of part performance or reliance. (Restatement (Second) of Contracts §376 (1981).) Section 384, however, conditions such restitution on return of any benefits by the party seeking restitution. (Restatement (Second) of Contracts §384 (1981).) Comment a to that section states that “[i]f a party has received land, goods or other property he is expected to return it. The fact that he has benefited from possession of them does not preclude restitution since he can compensate the other party in money for this benefit.” (Restatement (Second) of Contracts §384, comment a, at 245 (1981).) “The purpose of requiring a party rescinding a contract to restore to the other party everything of value he has received under it is to make it unnecessary for the party to whom the restoration should be made to bring an action to obtain such restoration.” 17 Am. Jur. 2d Contracts §512 (1964).

Consistent with this approach is Williams v. Dunas (1976), 40 Ill. App. 3d 782, 352 N.E.2d 266, where a purchaser of realty rescinding the contract of sale was required to account for the rental value of the realty during the period of occupancy. The court held that “the purchaser upon his rescission of the contract must also put the seller in the position he was in at the time of the execution of the contract. Thus, the purchaser would be chargeable with the reasonable rental value of the land during the time he held possession plus interest thereon.” 40 Ill. App. 3d at 784, 352 N.E.2d at 269; see also Cummings v. Dusenbury (1984), 129 Ill. App. 3d 338, 345, 472 N.E.2d 575.

The circuit court therefore properly charged against the return of defendant’s down payment amounts representing the rental value of American Eagle’s equipment ($114,500) and one month’s rent at the Bensenville premises ($1,140). These amounts reflect the proper measure of benefits that defendants received through use of the premises for one month and possession of the equipment, the latter which the record reflects was used in his other businesses. Hughes has not argued on appeal that he did not benefit from the use of the machines and the premises.

The circuit court erred, however, in awarding plaintiffs the cost of moving the equipment back to Bensenville and electrifying it. The court in Cummings v. Dusenbury (1984), 129 El. App. 3d 338, 472 N.E.2d 575, notes that the party against whom rescission is sought “must be returned to status quo ‘insofar as [the other] received any benefit.’ ” (129 Ill. App. 3d at 346, 472 N.E.2d at 581, quoting Hakala v. Illinois City Corp. (1978), 64 Ill. App. 3d 114, 120, 380 N.E.2d 1177, 1181.) In that case, it was held that the seller of realty was properly restored to the status quo without reimbursement of a broker’s commission paid by seller because the broker’s commission was of no benefit to the buyers. Likewise, in the instant case, the cost of returning the equipment to Bensenville and electrifying it does not represent any benefit conferred by plaintiffs upon defendants. As such, that amount was not a proper component of the restoration of plaintiffs to the status quo.

We further conclude that the circuit court erred in awarding to plaintiffs the value of two machines traded for a nonfunctional Giddings and Lewis machine. That trade occurred prior to and bears no relation to the July 14, 1986, written agreement for the sale of American Eagle, and plaintiffs’ complaint contains no claims based on that transaction. Rescission of the contract for the sale of American Eagle does not require restitution to plaintiffs for benefits allegedly conferred under a separate and unrelated transaction.

Thus, the circuit court properly offset against the return of defendants’ down payment amounts representing rent on American Eagle’s equipment and one month’s rent of the shop in Bensenville. However, the court erred in offsetting the cost of returning the machines to Bensenville and electrifying them and the value of the two machines traded in an unrelated transaction.

David Hughes next contends that plaintiffs failed to present sufficient evidence to support the amounts which the circuit court credited them in its judgment. Hughes first argues that Halil Puskar’s testimony of the rental value of certain machinery and his testimony of the cost of electrifying the machinery should be discredited because Puskar never established that he was in the business of renting, appraising, or electrifying such machinery. As we have already decided that plaintiffs are not entitled to the cost of electrifying the equipment, we need not address the question of Puskar’s competence to testify as to this cost. We find, however, that Puskar’s use of the machinery in his business and his testimony that he was familiar with the rental value of the machinery constitute a sufficient foundation for his testimony on the rental value of the machinery.

It is the trial court’s function to determine the credibility of witnesses, and a reviewing court will not substitute its opinion for the finding of the trier of fact unless it is against the manifest weight of the evidence. (Scheduling Corp. v. Massello (1987), 151 Ill. App. 3d 565, 570, 503 N.E.2d 806.) There is no basis in the instant case for reversing the circuit court’s findings, based on Puskar’s testimony which was unrebutted, relative to the rental value of the machines.

David Hughes additionally contends that Halil Puskar’s testimony as to rental value of certain machinery was, in substance, expert testimony, and therefore, that Puskar’s testimony should have been barred for failure to disclose him as an expert pursuant to Supreme Court Rule 220(b) (107 Rl. 2d R. 220(b)). Hughes, however, failed to object to Puskar’s testimony at trial on the basis of Rule 220, thus waiving our consideration of this point. (Auton v. Logan Landfill, Inc. (1984), 105 Ill. 2d 537, 548-49, 475 N.E.2d 817.) In any event, we note our recent decision in Hill v. Ben Franklin Savings & Loan Association (1988), 177 Ill. App. 3d 51, 57-58, wherein we held that a party to an action is not subject to the disclosure requirements of Rule 220(b)(l).

Hughes also argues that Julius Starks should have been barred from testifying as to the cost of returning American Eagle’s equipment to Bensenville, for failure to disclose Starks as an expert witness as required by Rule 220(b). As we have already determined that plaintiffs are not entitled to the cost of returning the equipment, we need not address this issue.

Hughes next contends that the circuit court erred in failing to apply the doctrine of “clean hands” to bar any recovery on behalf of plaintiffs. He maintains that, because plaintiffs had unclean hands, it was improper to offset any charges against the return of the down payment.

As plaintiffs point out, Hughes misconceives the nature of the clean hands doctrine. The clean hands doctrine holds that “he who comes into equity must come with clean hands or, as otherwise stated, one seeking equitable relief cannot take advantage of his own wrong.” (Fair Automotive Repair, Inc. v. Car-X Service Systems, Inc. (1984), 128 Ill. App. 3d 763, 767-68, 471 N.E.2d 554; see also State Bank v. Sorenson (1988), 167 Ill. App. 3d 674, 680, 521 N.E.2d 587.) In the instant case, it was Hughes who sought and was awarded equitable relief in his counterclaim for rescission, and the doctrine of clean hands is therefore inapplicable as against plaintiffs, who were the counterdefendants. (See Myers v. Myers (1977), 51 Ill. App. 3d 830, 835, 366 N.E.2d 1114.) As previously noted, inherent in the remedy of rescission is restoration of both parties to the status quo. Hughes seeks to assert misconduct on the part of plaintiffs not to defeat any equitable claim by plaintiffs, but rather to expand the scope of the remedy of rescission so as to allow him to retain benefits conferred by plaintiffs.

As the circuit court in its judgment improperly offset $14,000 for the value of two machines traded for a Giddings and Lewis machine, $35,000 for the cost of moving machinery to Bensenville, and $15,000 for the cost of electrifying the equipment, against the return of the consideration paid by defendants to plaintiffs, the part of the judgment of the circuit court awarding plaintiffs $3,640 against David Hughes is reversed, and judgment is entered in favor of David Hughes against plaintiffs in the amount of $61,060. The appeal of Charles Hughes is dismissed.

Reversed in part and modified; appeal of Charles Hughes is dismissed.

DUNN and INGLIS, JJ., concur.


author: JUSTICE McLAREN

text:
    GLENN H. BEAMAN et al., Plaintiffs-Appellants, v. SWEDISH AMERICAN HOSPITAL ASSOCIATION OF ROCKFORD et al., Defendants-Appellees.
    Second District
    No. 2—88—0205
    Opinion filed February 1, 1989.

      Bruscato & Cacciatore, of Rockford (John R. Truitt and William T. Cacciatore, of counsel), for appellants.
    Diane I. Jennings and Hugh C. Griffin, both of Lord, Bissell & Brook, of Rockford (Jeffry S. Spears, of counsel), for appellee Swedish American Hospital Association of Rockford.
    Holmstrom & Green, P.C., and Diane I. Jennings and Hugh C. Griffin, both of Lord, Bissell & Brook, both of Rockford (Gregory P. Guth and Jeffry S. Spears, of counsel), for appellee Warren L. Lowry.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, Glenn H. Beaman, sought damages for injuries allegedly sustained as the result of the medical malpractice of defendants, Dr. Rudolph Vedo, Dr. Warren L. Lowry, and Swedish American Hospital Association of Rockford. Plaintiff’s wife, Donna J. Beaman, filed a loss of consortium claim. The trial court granted Dr. Vedo’s motion for summary judgment based on the ground that there was no expert testimony to show a deviation from the required standard of care of an anesthesiologist. This ruling was not appealed. The jury returned a verdict in favor of Dr. Lowry and the hospital on all remaining counts. On appeal, plaintiffs contend that the trial judge erred by refusing to allow plaintiffs’ treating physicians to give expert testimony as to a causal connection between the spinal anesthesia and plaintiff’s ill health.

On March 19, 1979, plaintiff was admitted to Swedish American Hospital for urinary retention. A history was taken, at which time plaintiff stated that he had flu-like symptoms for the past nine days and had experienced tingling and pain in his thighs and lower back. A catheter was inserted, and plaintiff was scheduled to undergo prostate surgery on March 22, 1979. Dr. Lowry performed the surgery. Plaintiff testified that on the day following surgery he experienced a numbness in his feet and could not properly walk. This condition persisted when plaintiff left the hospital, and he was later examined by several other physicians as his condition became worse. His condition was eventually diagnosed as being myelopathy (a dysfunction of the spinal cord), although the cause was undetermined.

On March 17, 1983, plaintiffs filed a complaint alleging medical malpractice. The trial court, pursuant to Supreme Court Rule 220 (107 111. 2d R. 220), set a time limit for the parties to disclose their expert witnesses. Plaintiffs identified Dr. Murray Rosenberg, an anesthesiologist, as their only trial expert. Dr. Rosenberg testified at the discovery deposition that plaintiff’s condition was caused by an improper positioning of the plaintiff on the operating table. Approximately 11 months later, plaintiffs again identified Dr. Rosenberg as their only trial expert and also listed plaintiff’s treating physicians as those who would testify to plaintiff’s care and treatment based on their examinations and findings. During his second deposition, Dr. Rosenberg reiterated his earlier opinions and added that plaintiff’s condition may have been caused by a viral infection such that the surgery should not have been performed at that time. Plaintiffs also disclosed the two treating physicians (Drs. Copeland and Campbell) who would testify.

One month before the trial date, and after the discovery cutoff date, plaintiffs filed additional Rule 220 answers which stated that Dr. Rosenberg would testify that plaintiff’s condition may have been caused by the spinal anesthesia. Plaintiffs also stated that Dr. Campbell would testify as to the possible link between the anesthesia and plaintiff’s condition. Both defendants filed a motion to bar new opinions of plaintiffs’ experts, and the motion was granted. The trial court noted that plaintiffs had not previously disclosed any expert testimony concerning this liability theory concerning spinal anesthesia, and to allow such a theory at this late date would “severely prejudice the defendant.”

The trial judge also heard motions in limine, and determined that he would not allow any new liability theories to be presented at trial. The court also refused to allow any hypothetical questions directed to the treating physicians without first obtaining court authorization. Plaintiffs filed a motion to reconsider the trial court’s ruling, arguing that treating physicians were not experts under Rule 220, and thus the disclosure requirement does not apply. This motion was denied. On October 28, 1987, the jury returned a verdict in favor of both defendants. Plaintiffs’ motion for a new trial was denied.

On appeal, plaintiffs contend that the trial court committed reversible error by refusing to allow plaintiffs’ treating physicians to testify as experts in a medical malpractice action. Plaintiffs make this claim by stating that the treating physicians did not come within the purview of Rule 220, and thus there was no need to comply with Rule 220. That rule provides:

“In order to insure fair and equitable preparation for trial by all parties the identity of an expert who is retained to render an opinion at trial on behalf of a party must be disclosed by that party ***.” (107 111. 2d R. 220(bXl).)

The rule defines an expert witness as:

“[A] person who, because of education, training or experience, possesses knowledge of a specialized nature beyond that of the average person on a factual matter material to a claim or defense in pending litigation and who may be expected to render an opinion within his expertise at trial.” 107 Ill. 2d R. 220(aXl).

Plaintiffs primarily rely on Diminskis v. Chicago Transit Authority (1987), 155 Ill. App. 3d 585, 508 N.E.2d 215, for the proposition that treating physicians are not considered to be experts within the meaning of Rule 220. The Illinois Supreme Court affirmed the Diminskis decision in Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 235, 529 N.E.2d 525. The supreme court noted that there is an inherent difference between a treating physician and a medical expert. A treating physician is consulted to specifically treat a patient’s mental or physical problem. A medical expert is retained simply to render testimony at trial. (Tzystuck, 124 Ill. 2d at 234.) The court reasoned that a treating physician should be treated similar to an occurrence witness because the treating physician witnesses the events that form a part of the subject matter of the litigation.

Plaintiffs correctly state that both Dr. Campbell and Dr. Copeland were consulted for the purpose of rendering medical treatment. They were not retained to provide expert testimony at trial. This is especially true considering that both were consulted long before the malpractice complaint was filed. Thus, under the Tzystuck and Diminskis rules, there was no need for plaintiffs to comply with Rule 220 as to these treating physicians.

Neither defendant has asserted that treating physicians fall within the purview of Rule 220 when they testify as to matters from their own personal knowledge. Both defendants objected to the possibility that plaintiffs would use the treating physicians as experts to circumvent Rule 220 requirements. The court ruled that there could not be any hypothetical questions asked of the treating physicians without prior approval of the court. The judge stated that this would be done on a question-by-question basis.

In a medical malpractice action, the plaintiff must prove (1) the proper standard of care against which the defendant’s conduct is measured; (2) a negligent failure to comply with the applicable standard of care; and (3) a resulting injury proximately caused by this breach of the applicable standard of care. (Addison v. Whittenberg (1988), 124 Ill. 2d 287, 297, 529 N.E.2d 552.) In general, the plaintiff must present expert opinion to establish each of these elements. (Addison, 124 Ill. 2d at 297.) Plaintiffs claim that the trial court did not allow them to meet their burden of proof in this case because they were not allowed to elicit expert opinions from the two treating physicians. As a result, plaintiffs state that they were severely prejudiced and deprived of a fair trial. Plaintiffs primarily rely upon Corrales v. American Cab Co. (1988), 170 Ill. App. 3d 907, 524 N.E.2d 923, for the proposition that a trial court’s erroneous decision to bar treating physicians’ testimony will require a new trial. In Corrales, defendant attempted to call a treating physician to the stand to testify as to certain statements plaintiff made in the emergency room. The trial court refused to allow the testimony pursuant to Supreme Court Rules 220 and 237 (notice of appearance of witnesses at trial). The appellate court reversed, holding that in a closely balanced case, the trial court’s ruling severely prejudiced defendant and required a new trial. Corrales, 170 Ill. App. 3d at 911-12.

Plaintiffs assert that the trial court in both Corrales and ornease improperly barred the treating physicians’ testimony. We disagree. The trial court in Corrales refused to allow the treating physician to testify because the physician was undisclosed. This factor is not present in our case. There is no dispute that both treating physicians were disclosed in our case. The trial judge, in this case, also allowed both physicians to testify, unlike Corrales. The only limitation the trial judge placed on the testimony was that neither treating physician could testify about theories of liability which were not at issue in the case. The trial court placed this limitation on plaintiffs to prevent them from introducing a new theory of medical negligence so close to the trial date.

The trial court did not preclude expert testimony; it only precluded irrelevant expert testimony. It is proper for a trial judge to exclude evidence which is not relevant to the specific issues under consideration. (Schultz v. Richie (1986), 148 Ill. App. 3d 903, 907, 499 N.E.2d 1069.) Plaintiffs have misconstrued the trial court’s ruling and continue to misstate the nature and extent of the trial court’s ruling in argument presented to this court. Prejudice for failure to allow testimony into evidence does not occur when the testimony is irrelevant. A review of portions of the deposition of Dr. Campbell attached to plaintiffs’ motion to reconsider lends credence to this court’s determination that plaintiffs miscomprehend the nature of this case.

Plaintiffs claim that the trial court erred in barring this testimony and such error deprived plaintiffs of a fair trial. We disagree. Plaintiffs represent to us that the trial judge found such testimony to be violative of Rule 220 and was thus excluded. However, a reading of the post-trial motion transcripts indicates that the trial court did not allow the testimony because such testimony involved a new theory of liability. The trial judge stated:

“I simply don’t see it as a Diminiskis [sic] issue. I think the fundamental principal [sic] here is that the defendants are entitled to know well in advance what they are accused of, what they have to defend against.
I believe the posture of the discovery, as it unfolded with the defendants’ 220 interrogatories and the answer to those, clearly identifies the theories of liability as being two theories, a mispositioning of the patient and operating on the patient at a time when infection might have been ongoing. There was simply in my opinion no expert testimony established — ever establishing liability on the part of the hospital or Dr. Lowry for negligent anesthesia process, and that was the basis for the Court’s ruling that the plaintiffs will not be permitted at a late date to resurrect a theory of liability on the part of the hospital and doctor without some expert testimony having been identified in advance that would have notified those defendants that they were going to be defending against that.”

The resurrection the trial court alludes to is the summary judgment granted the anesthesiologist, Dr. Vedo. The summary judgment is tantamount to an adjudication of the anesthesia theory as to the other two defendants as well. Such an anesthesia theory was never raised at any time against the defendant hospital. In fact, as early as 1983, defendants requested plaintiffs to provide the names of any treating physicians who would testify as to any negligent acts the defendants were responsible for. Plaintiffs furnished no information other than “investigation continuing.” Defendants received similar responses well into 1987.

Plaintiffs also assert that the trial court improperly barred the expert opinions of all other treating physicians of plaintiffs. However, plaintiffs did not make an offer of proof as to who these other physicians were and what their testimony would have been; An adequate offer of proof requires plaintiffs to provide this information or the issue is waived on appeal. Piano v. Davison (1987), 157 Ill. App. 3d 649, 668, 510 N.E.2d 1066; Simon v. Plotkin (1977), 50 Ill. App. 3d 603, 365 N.E.2d 1022.

It is the opinion of this court that plaintiffs were not denied their right to a fair trial. The trial judge did not abuse his discretion by (1) requiring plaintiffs to submit any hypothetical questions that were to be asked of the treating physicians to the court before asking the questions, or (2) refusing to allow testimony concerning spinal anesthesia as an additional theory of liability. This is especially true given the fact that plaintiffs requested the opportunity to present this theory long after the discovery period had concluded and less than one month before the trial was set to commence. The trial judge properly limited the theories of liability to (1) whether defendants mispositioned plaintiff on the operating table such that plaintiff’s myelopathy resulted, and (2) whether defendants should have postponed the operation as a result of plaintiff’s viral infection. Therefore, the judge correctly ruled that evidence concerning the connection between the spinal anesthesia and plaintiff’s myelopathy was simply not relevant because spinal anesthesia was not a theory of liability in the case.

Accordingly, for the reasons set forth above, the judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

WOODWARD and REINHARD, JJ., concur.