author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERNEST WITHERSPOON, Defendant-Appellant.
    First District (6th Division)
    No. 1 — 89—2899
    Opinion filed June 28,1991.

      Flader & Haces, of Chicago (Richard Flader, of counsel), for appellant.
    John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Margaret Iwerebon, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Following a jury trial, defendant, Ernest Witherspoon, was convicted of possession of a controlled substance and cannabis with intent to deliver, and sentenced to a 12-year term. Defendant appeals, alleging that the court erred in denying his motion to quash arrest and suppress the evidence; in denying his request for disclosure of the informant’s identity and not compelling the informant to testify; that the search warrant was improperly served; and that he was not proved guilty of possession with intent to deliver beyond a reasonable doubt.

Defendant filed a motion pursuant to Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, seeking to quash the warrant and the arrest, and to suppress the evidence seized. Defendant contended that the complaint for the search warrant was based upon the testimony of an alleged informant, and that the police officer could not verify the information supplied to him. Defendant pled an alibi defense.

At the hearing, Chicago police detective James Dwyer testified that on November 24, 1986, at approximately 4 or 5 a.m., he received a telephone page from an informant. Dwyer returned the call and learned that the informant had just purchased drugs from an individual named “Spoon” at 2123 West 119th Street, apartment 5, in Blue Island. The informant described “Spoon” as a male black, approximately 5 feet 7 inches, weighing 200 pounds, 40 to 45 years old. Dwyer had knowledge that the informant was a drug user. The informant inhaled the cocaine purchased from “Spoon” and received the same effects as when he previously used the drug. Later that morning, Dwyer drove to the address supplied to him by the informant and found defendant’s surname, “Witherspoon,” on a small card on the door of apartment 5.

Dwyer obtained a search warrant based upon his belief that the information received from the informant was reliable. Dwyer had used information from the informant on two other occasions during the preceding three months and that information led to seizures of controlled substances in both instances. The search warrant described “Spoon” as per the description given to Dwyer by the informant.

John Jones, owner of a Seven-Day Mini Mart (Mini-Mart) where defendant was employed, testified at the Franks hearing that on Friday, November 21, 1986, defendant took a weekend trip to Detroit with Curtis Sanders to visit his daughter. According to Jones, defendant came into the store on Friday morning, November 21, 1986, at approximately 10:30 a.m. prior to going to Detroit; and returned on Monday, November 24,1986, at 3 p.m. when he arrived back in town.

Barbara King testified that defendant and Sanders arrived at her home in Detroit on November 21, at 6 p.m., and spent the weekend with her. King prepared breakfast on the morning of November 24 for defendant, Sanders, and Walter Jordan, who had dropped over to say goodbye. Defendant’s cousin, Lester Wallace, also came to visit before defendant and Sanders left to drive back to Chicago at 9 a.m.

Defendant testified that he signed a one-year lease for the apartment in Blue Island, but at the time of his arrest he was living with his girl friend and their son in University Park South. During November 1986, defendant occasionally dropped by the Blue Island apartment to check on things, but had given the apartment to his friend, Patrick Jones, until the lease expired. Jones, as well as several other friends, had keys to that apartment. According to defendant, the rent was paid by whoever was living in the apartment and he forwarded it to the landlord. Electric service in the apartment was listed under defendant’s name.

Defendant stated that he spent the weekend at King’s house in Detroit; that he arrived on Friday at 6 p.m. and departed on Monday morning at 9 a.m. following breakfast with King, Wallace, Jordan, and Sanders. Defendant further testified that he never returned to Chicago during that weekend.

Affidavits in support of defendant’s Franks motion were submitted by Jones, Sanders, Jordan, Wallace and King concerning defendant’s activities from November 21 through November 24, 1986.

After review of the affidavits and testimony presented by the defense and by Dwyer at the Franks hearing, the trial judge concluded that defendant had not offered sufficient evidence to support his contention that the police acted without knowledge and in reckless disregard for the truth in obtaining the warrant.

On May 17, 1989, another pretrial hearing was conducted on defendant’s second motion to quash the arrest and suppress evidence based on the police officers’ failure to comply with the “knock and announce” rule. In that motion, defendant argued that the search warrant was never served upon him until after an extensive search of the apartment was conducted and controlled substances and cannabis were discovered.

Defendant testified that he met with James Wright at the Blue Island apartment at approximately 8:30 p.m. for the purpose of buying life insurance for his daughter. Defendant’s nephew, Thomas Earl Wallace, was also present. Defendant heard the car alarm sound on his 1979 Corvette. Defendant looked out the window and saw a man who appeared to be attempting to break into his car. The apartment door was then kicked in, and five or six individuals dressed in plain clothes entered the apartment. Defendant further stated that they did not inform him that they were the police, nor that they had a warrant to search the premises. A gun was pointed at the base of his neck, and he remained in that position for nearly two hours while the apartment was searched. During this time, the men continually asked the identity of “Spoon” and stated that they wanted no less than a key and $100,000. Defendant then heard a voice in the back of the apartment shout “Bingo.” At that point, one of the police officers took out the search warrant, placed it into defendant’s shirt pocket as they were taking him out the door, and informed him that it was a warrant for his arrest.

Dwyer testified that he arrived at defendant’s Blue Island apartment to execute the search warrant at 9 p.m. on November 24, 1986. Dwyer was accompanied by two Blue Island police officers in regulation police uniforms and five plainclothes police officers wearing baseball style hats bearing the Chicago police department emblem and bulletproof vests.

Dwyer further testified that he knew defendant drove a 1979 Corvette and that it was parked adjacent to the building when he arrived at the apartment. Dwyer shook defendant’s car intentionally to activate the car alarm. It was Dwyer’s intention to implement this “ruse” so that defendant would exit the apartment, thereby simplifying the execution of the search warrant.

Dwyer testified that they stopped defendant when he walked out of the apartment, went back inside with him, and handed him a copy of the search warrant. Dwyer stated that they did not force entry into the apartment. The search lasted approximately 30 to 45 minutes. Inside a drop panel in the drop ceiling, the police uncovered a crushed green plant later identified as 240 grams of cannabis. On the kitchen table, a “pony packet” was found containing .01 grams of cocaine. As the search proceeded into the bathroom, the police found 133.42 grams of cocaine underneath a plastic liner in the wastebasket. A shotgun and a .380 semi-automatic pistol were found underneath a mattress in the bedroom. A triple beam scale was discovered in a kitchen cabinet. At the time of his arrest, defendant had $1,431 in cash in one of his pockets. A light bill listed under defendant’s name was found on a bedroom dresser. Blue Island police officer William Sanchez corroborated Dwyer’s testimony.

The court denied defendant’s second motion, basing its finding upon the credibility of the police officers’ testimony. The court found that the police officers successfully lured defendant out of the apartment by activating his car alarm and that the police officers properly served him with the search warrant and entered the apartment to conduct the search.

At trial, Corporal Craig T. Kincaid of the Blue Island police department corroborated the testimony of Dwyer and Sanchez. Kincaid testified that he participated in the raid of defendant’s apartment on the night of November 24, 1989, and that he was in uniform. Kincaid testified that there were no signs of forced entry and that the door was intact.

Officer William Facchini testified at trial that after defendant was placed under arrest, he requested a jacket before exiting the apartment. Facchini and Dwyer accompanied defendant back to the bedroom, where he selected a jacket. Defendant also asked whether his nephew could remain behind to straighten up the apartment. Facchini observed defendant take a key ring out of his pocket, hand it to his nephew, and identify the keys to the apartment and the Corvette.

Defendant’s fiancee, Ingrid Harris, testified for the defense. Harris is the mother of defendant’s two-year-old son and also works at the Mini-Mart. She began living with defendant in August 1986. Harris testified that defendant’s clothing and personal items were kept in her apartment in University Park South and that he would leave there each morning and return each night. Harris further testified that Patrick Jones was the tenant in the Blue Island apartment after defendant left to live with her and that he handed all the keys to the apartment over to Jones.

Avor Cooley, the girl friend of Patrick Jones, also testified for the defense. (Jones, who was also employed at the Mini-Mart, was killed in a fire in December 1988.) Cooley testified that she moved into the apartment in Blue Island with Jones in August 1986 and that they lived there through the end of March 1987. She and Jones had the only keys available to the apartment, but she did not recall the day that they moved into the apartment or name of the landlord. (Previously, Cooley lived with her mother at 1234 West 127th Street. When Cooley’s daughter, Aisha, was born on March 3, 1987, Cooley listed her address as 1234 West 127th Street on the hospital form.) Cooley also stated that she had clothes in the Blue Island apartment.

Cooley further testified that on the evening of November 24, 1986, she unlocked the apartment door for defendant and his nephew. Cooley stated that defendant’s nickname is “Spoon,” but upon further questioning, she stated that he was called “Spoon” only after his arrest.

James Wright, the accountant at the Mini-Mart, also testified for the defense. Wright went to defendant’s Blue Island address on November 24, 1986, at 8:30 p.m. to sell him some insurance. After hearing the car alarm, defendant proceeded through the living room toward the front door; however, the door burst open and several men carrying guns and sledgehammers entered the apartment. Wright stated that the door lock was damaged. The police searched all three men, but failed to uncover any narcotics.

After the arrest, Wright left the apartment with defendant’s nephew and proceeded back to the Mini-Mart. Wright informed Jones about the raid and defendant’s arrest. Wright stated that defendant was living in University Park South in November 1986. Wright testified that defendant earned approximately $64 per day at the Mini-Mart.

Officer Henry Cross testified for the State in rebuttal. Cross also participated in the November 26, 1986, raid on defendant’s apartment. Cross testified that the officers did not exert any force to gain access to defendant’s apartment. The police did not find any women’s clothing inside the apartment.

Harris testified for the defense in rebuttal. Defendant allowed the electric bill to remain in his name so that Jones, who had just moved to town, would not have to provide a dowm payment.

The jury found defendant guilty of possession of cannabis with intent to deliver more than 30 grams but less than 500 grams in violation of section 5(d) of the Cannabis Control Act (Ill. Rev. Stat. 1985, ch. 56½, par. 705(d)), and guilty of possession of cocaine, with intent to deliver more than 30 grams in violation of section 401(a)(2) of the Illinois Controlled Substances Act (Il. Rev. Stat. 1985, ch. 56½, par. 1401(a)(2)). The court denied defendant’s motion for judgment notwithstanding the verdict and motion for a new trial, and entered judgment on the verdicts.

After taking into consideration defendant’s 1976 conviction for Federal bank robbery and attempted murder for an Alabama offense (with a consecutive State sentence), the court sentenced defendant to a 12-year term. (Defendant had been incarcerated from 1976 through 1985.)

On appeal, defendant initially assigns error to the court’s denial of the Franks v. Delaware motion to quash arrest and suppress evidence. Specifically, defendant argues that the search warrant was obtained without knowledge and in reckless disregard of the truth, and that the court erred in refusing to order the informant to be called as a witness.

Defendant contends that the denial of his Franks motion was against the manifest weight of the evidence presented at the hearing. Defendant argues that the State only produced the testimony of Dwyer based on information from an undisclosed informant who did not testify at the hearing. Defendant asserts that the information supplied on the complaint erroneously describes “Spoon” (approximately 5 feet 7 inches, 200 pounds, approximately 40 to 45 years of age) in contrast with defendant’s actual size (5 feet 10 inches, 180 pounds and 32 years of age). Defendant presented five affidavits and testimony from four witnesses and himself advancing an alibi defense: that he was in Detroit on November 21, 1986, and did not return to Chicago until the afternoon of November 24.

Under Franks v. Delaware the defendant is required to make a “substantial preliminary showing” that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit. (People v. Friend (1988), 177 Ill. App. 3d 1002, 533 N.E.2d 409.) An alibi-type showing can suffice as a “substantial preliminary showing,” for the determination is based on the balancing of the statements in the warrant affidavit versus those in support of the defendant’s challenge to the warrant. People v. Friend, 177 Ill. App. 3d 1002, 533 N.E.2d 409, citing People v. Lucente (1987), 116 Ill. 2d 133, 506 N.E.2d 1269.

Under Franks, a defendant is entitled to a full evidentiary hearing on his motion to suppress evidence if he makes allegations of the affiant’s deliberate falsehood or reckless disregard for the truth, accompanied by an offer of proof. (People v. Martine (1985), 106 Ill. 2d 429, 435, 478 N.E.2d 262.) “So long as the trial court’s judgment is exercised within permissible limits, [the court’s] judgment will not be disturbed.” People v. Lucente, 116 Ill. 2d at 153; People v. Tovar (1988), 169 Ill. App. 3d 986, 990-93, 523 N.E.2d 1178.

The purpose underlying the Franks rule is to provide meaningful, although limited, deterrence of, and protection against, perjurious warrants. (People v. Friend, 177 Ill. App. 3d 1002, 533 N.E.2d 409.) When a hearing has been granted, if under all the circumstances the judge doubts the credibility of the police officer, “the judge may require that the informer be identified or even produced.” People v. Garcia (1982), 109 Ill. App. 3d 142, 151, 440 N.E.2d 269, disapproved by People v. Lucente (1987), 116 Ill. 2d 133, 144-46, relying on McCray v. Illinois (1967), 386 U.S. 300, 307-08, 18 L. Ed. 2d 62, 69, 87 S. Ct. 1056, 1060-61; see also People v. Allen (1987), 158 Ill. App. 3d 602, 608, 511 N.E.2d 824.

Supreme Court Rule 412(j)(ii) (134 Ill. 2d R. 412(j)(ii)) provides the circumstances wherein disclosure of an unidentified informant is required:

“Informants. Disclosure of an informant’s identity shall not be required where his identity is a prosecution secret and a failure to disclose will not infringe the constitutional rights of the accused. Disclosure shall not be denied hereunder of the identity of witnesses to be produced at a hearing or trial.”

The proper application of the informer’s privilege involves balancing the strong public policy reasons favoring it against a defendant’s need for disclosure in order to prepare his defense. (Roviaro v. United States (1957), 353 U.S. 53, 1 L. Ed. 2d 639, 77 S. Ct. 623; People v. Rinaldo (1976), 34 Ill. App. 3d 999, 1001, 341 N.E.2d 166.) The defendant shoulders the burden of demonstrating need, and our supreme court has recognized that where there is no evidence that the informer either participated in the crime or was present at the time of the arrest, amplification of an informer’s statements would be of little assistance to an offender’s defense. People v. Duncan (1982), 104 Ill. App. 3d 701, 705, 432 N.E.2d 1328, 1331; People v. Stoica (1987), 163 Ill. App. 3d 660, 516 N.E.2d 909.

Upon review of the record, we agree with the trial court’s decision that defendant did not meet his burden of demonstrating the need for disclosure of the informant’s identity. Dwyer testified that he had used information provided by the informant on two occasions in the previous three months and that information led to seizures of controlled substances in both instances. Dwyer drove to the Blue Island address provided by the informant and verified defendant’s surname, “Witherspoon,” on the apartment door, which bears a strong resemblance to “Spoon” (the name supplied by the informant as the individual from whom he had purchased drugs). There is also evidence in the record that defendant’s nickname was “Spoon.” While the informant’s physical description of “Spoon” varied from defendant’s actual size, we note that the drug transaction occurred during the early morning hours of November 24, 1986, which may account for the informant’s miscalculations of defendant’s age, height and weight.

We find that the court correctly balanced Dwyer’s statements and the testimony and affidavits made on defendant’s behalf. Therefore, we conclude that defendant was not deprived of a fair Franks hearing because the court denied his request for disclosure of the informant’s identity.

Defendant next argues that the search warrant was improperly served on defendant based on a forced entry and failure to “knock and announce.” The purpose of the “knock and announce” rule is to notify the person inside of the presence of police and of the impending intrusion, give that person time to respond, avoid violence, and protect privacy as much as possible; however, an exception to the “knock and announce” rule has been created when exigent circumstances exist. People v. Ouellette (1979), 78 Ill. 2d 511, 518, 401 N.E.2d 507.

The trial court found the police officers’ testimony of the sequence of events leading to the execution of the warrant to be credible. Specifically, the court found that the police officers successfully lured defendant out of the apartment by activating defendant’s car alarm, and that he was properly served with the search warrant prior to the time the police began to conduct their search. Officers Dwyer, Sanchez, Kincaid and Cross each testified that the door was intact and that there was no forced entry.

The use of deception to lure a defendant from his home in order to effectuate an arrest without a warrant has been held not to violate fundamental fairness. (See People v. Sunday (1982), 109 Ill. App. 3d 960, 441 N.E.2d 374.) Section 108 — 8 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 108 — 8) provides in relevant part that “[a]ll necessary and reasonable force may be used to effect an entry into any building or property or part thereof to execute a search warrant.” Absent the use of force, the employment of a subterfuge to gain entry to a home to execute a search warrant is not prohibited by section 108 — 8, or by any decision of the courts of this State. People v. Bargo (1978), 64 Ill. App. 3d 1011, 382 N.E.2d 83.

Defendant’s final contention is that the State failed to prove him guilty beyond a reasonable doubt. He maintains possession with intent could not be inferred from the evidence. Defendant argues that he did not live in the apartment where the raid occurred, the fact that he was there at the time of the raid was circumstantial, and that he had no knowledge of the existence of any controlled substances.

In order to support a conviction for unlawful possession of narcotics with an intent to deliver, the State must establish that the defendant had knowledge of the presence of narcotics, that- the narcotics were in the immediate control or possession of the defendant, and that the amount of narcotics was in excess of any amount which might be viewed as merely possessed for personal use. (People v. Pintos (1988), 172 Ill. App. 3d 1096, 527 N.E.2d 312; People v. Knight (1985), 133 Ill. App. 3d 248, 259, 478 N.E.2d 1082, 1091.) The standard of review of whether a defendant had possession and knowledge of the narcotics is that the fact findings of the trial court will be overturned only where the evidence is so palpably contrary to the verdict or judgment that it is unreasonable, improbable or unsatisfactory and thus creates a reasonable doubt of guilt. (People v. Pintos, 172 Ill. App. 3d 1096, 527 N.E.2d 312; People v. Knight, 133 Ill. App. 3d 248, 478 N.E.2d 1082.) It is not necessary that the evidence presented at trial exclude every possible doubt, so long as the entire chain of circumstances leads to a reasonable certainty that the accused committed the crime. People v. Williams (1977), 66 Ill. 2d 478, 484-85, 363 N.E.2d 801, 804.

We believe that defendant was proved guilty beyond a reasonable doubt. He was present in the apartment when the police arrived to execute the search warrant. The apartment was leased to defendant, and the electric service was listed under his name. Officer Facchini testified that after defendant was placed under arrest, he went to the bedroom of the apartment and selected a jacket. Defendant also requested that his nephew be allowed to remain in the apartment after the search to straighten it up, and he handed his nephew keys to the apartment.

In addition, we note Officer Cross testified that there was no women’s clothing found in the apartment, conflicting with Cooley’s testimony that she was living in the apartment with Jones on November 24, 1986. We also observe that upon the birth of her daughter on March 3, 1987, Cooley listed her address as 1234 West 127th Street, which contradicts her testimony that she lived in the apartment through the end of March 1987.

The record also supports the jury’s determination that possession with intent to deliver could be inferred from the evidence. Intent to deliver is necessarily proved by circumstantial evidence (People v. Cruz (1984), 129 Ill. App. 3d 278, 472 N.E.2d 175), and a reasonable inference of intent to deliver narcotics arises from the possession of contraband in excess of any amount that could be designed for personal use. (People v. Chrisos (1986), 151 Ill. App. 3d 142, 502 N.E.2d 1158; People v. Knight, 133 Ill. App. 3d 248, 478 N.E.2d 1082; People v. Kline (1976), 41 Ill. App. 3d 261, 354 N.E.2d 46.) The inference of intent may be enhanced by the combination of drugs and the manner in which they are kept. People v. Friend, 177 Ill. App. 3d 1002, 533 N.E.2d 409, citing People v. Hunter (1984), 124 Ill. App. 3d 516, 464 N.E.2d 659.

In our view, the quantity of substances involved (240 grams of cannabis and 133.42 grams of cocaine), together with the fact that a scale, a large amount of cash in defendant’s pocket, a shotgun and a .380 semi-automatic pistol were discovered, is sufficient circumstantial evidence for a jury to infer that the contraband was possessed with intent to deliver. People v. Stamps (1982), 108 Ill. App. 3d 280, 438 N.E.2d 1282.

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

Judgment affirmed.

RAKOWSKI, P.J., and LaPORTA, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    WILLIAM E. REYNOLDS, Adm’r of the Estate of Marvin Burton, Deceased, Plaintiff, v. NATIONAL RAILROAD PASSENGER CORPORATION, d/b/a Amtrak, et al., Defendants and Third-Party Plaintiffs (Elaine Fasano, Adm’r of the Estate of Robert Krabec, Deceased; Hinsdale Hospital et al., Third-Party Defendants).
    First District (6th Division)
    No. 1 — 90—1576
    Opinion filed June 28,1991.

      James A. Romanyak & Associates, of Chicago (James A. Romanyak and Gregory A. Stayart, of counsel), for appellants.
    Cassiday, Schade & Gloor and Hinshaw, Culbertson, Moelmann, Hoban & Fuller, both of Chicago (Timothy J. Ashe, Michael J. Cucco, Lynn D. Dowd, D. Kendall Griffith, Alice K. Kush, Douglas J. Esp, and Robert G. Black, of counsel), for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Third-party plaintiffs National Railroad Passenger Corporation, doing business as Amtrak (Amtrak), and Chicago Union Station (Union Station) filed an action for contribution against third-party defendants Hinsdale Hospital and Drs. Helge G. Franks, Douglas Gill, and Edwin E. Nebblett alleging medical malpractice in the treatment of Robert Krabec. Elaine Fasano, administrator of Krabec’s estate, later joined in the action for contribution. The trial court granted third-party defendants’ motion to dismiss all third-party complaints with prejudice for failure to state a cause of action. Only Amtrak and Union Station appeal; Fasano has not appealed the dismissal of her action for contribution.

The relevant facts are undisputed. On August 17, 1985, Krabec was voluntarily admitted to Hinsdale Hospital. Krabec was examined, diagnosed as alcoholic, and assigned to the alcoholism treatment unit of the hospital known as the New Day Center. Krabec underwent treatment for nine days. At approximately 1 p.m. on August 26, 1985, Krabec eloped from the hospital, and went to Union Station, where he had been employed as a security officer. Third-party defendants were not aware for several hours that Krabec had departed from the hospital.

Marvin Burton, a fellow employee of Krabec, was employed by Amtrak as a baggage supervisor. Krabec gained access to the security office and firearms locker at Union Station. Subsequently, Krabec shot and killed Burton at Union Station. Krabec then turned the gun on himself and committed suicide.

On October 17, 1986, plaintiff, William E. Reynolds, administrator of the estate of Burton, filed a wrongful death action against Fasano, administrator of Krabec’s estate, Amtrak and Union Station. Reynolds alleged that Amtrak failed to provide a safe place to work and warn Burton of an unsafe condition on the premises within the meaning of the Federal Employers’ Liability Act, 45 U.S.C. §§1 through 60 (1988). Reynolds’ wrongful death action against Union Station alleged negligence in permitting Krabec to remain in its employ as an armed security guard knowing that he was dangerous, violent, psychotic, and posed an unreasonable risk of harm to Burton.

On August 18, 1987, Fasano brought a wrongful death action in the circuit court of Du Page County against all Krabec’s medical care providers for their alleged failure to properly diagnose, treat and confine Krabec between August 17 and 26,1985.

On June 23, 1989, Amtrak and Union Station filed the present third-party complaint under the Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1989, ch. 70, par. 301 et seq.) (the Act) against Hinsdale Hospital and Drs. Timothy Neufeld, Richard A. Matthies, Helge G. Frank, Douglas Gill, Edwin E. Nebblett and James S. Watson. (Only Hinsdale Hospital and Drs. Franks, Gill and Nebblett are involved in this appeal.) Amtrak and Union Station alleged that Krabec’s medical care providers carelessly and negligently failed to properly diagnose and treat Krabec; failed to seek appropriate psychiatric or psychological consultation; failed to make proper diagnostic inquiries of Krabec as to the identity of the person, if any, who was the object of his paranoia and his plans for dealing with his paranoid delusions; and failed to control Krabec’s behavior and activities.

On April 30, 1990, the trial court dismissed all third-party complaints for failure to state a cause of action pursuant to section 2 — 615 of the Illinois Code of Civil Procedure (111. Rev. Stat. 1989, ch. 110, par. 2 — 615). On appeal, Amtrak and Union Station (hereinafter collectively as Amtrak) maintain that third-party defendants breached their duty to Burton and that they are liable in tort for the actions of Krabec.

It is well established that in order to prevail under a negligence theory, a complaint must set forth facts establishing the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and that, as a proximate cause, the plaintiff suffered damages. (Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 520 N.E.2d 37.) The existence of duty is a question of law for the court to determine. (Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 440 N.E.2d 96.) The primary factors that a court considers in determining the existence of a duty include:

“ ‘(1) The foreseeability of injury to the plaintiff as a result of defendant’s actions or inactions; (2) the magnitude of the burden to defendant of guarding against the injury and the consequences of placing that burden on the defendant; and (3) the currently prevailing public policies and social attitudes of the community.’ ” Eckhardt v. Kirts (1989), 179 Ill. App. 3d 863, 870, 534 N.E.2d 1339, quoting Leesley v. West (1988), 165 Ill. App. 3d 135, 141, 518 N.E.2d 758.

In determining whether a legal duty exists, it must be a reasonably foreseeable occurrence, such that a reasonably prudent person would have foreseen it as likely to happen. The imposition of a legal duty requires something more significant than a mere possibility of occurrence. Eckhart v. Kirts, 179 Ill. App. 3d 863, 534 N.E.2d 1339.

In order to demonstrate a cognizable cause of action, plaintiff must establish the following elements relating to the alleged duty owed: (1) the patieht must make specific threads) of violence; (2) the threads) must be directed at a specific and identified victim; and (3) a direct physician-patient relationship between the doctor and the plaintiff or a “special relationship” between the patient and the plaintiff. Eckhardt v. Kirts, 179 Ill. App. 3d 863, 534 N.E.2d 1339, citing Brady v. Hopper (D. Colo. 1983), 570 F. Supp. 1333, 1339, affd (10th Cir. 1984), 751 F.2d 329; Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 513 N.E.2d 387.

At the outset, we note that the record is devoid of any indication that Krabec made any specific threats of violence toward Burton while he was a patient in Hinsdale Hospital being treated by third-party defendants, thereby eliminating his ability to prevail under the first two elements.

We turn to the third factor, which focuses upon relationships that allow a plaintiff to establish a cause of action. Clearly, there was no direct physician-patient relationship between third-party defendants and Burton. The four “special relationships” which do give rise to a duty to protect another from harm are: (1) carrier-passenger, (2) innkeeper-guest; (3) business inviter-invitee; and (4) voluntary custodian-protectee under certain limited circumstances. In each of these relationships, the carrier, the innkeeper, the business inviter, and the voluntary custodian all owe their respective charges a duty to protect them from harm as long as they have the requisite “ ‘knowledge of previous incidents or special circumstances [that] would charge the owners [custodian, etc.] with knowledge of the dangers and the duty to anticipate it.’ ” Comastro v. Village of Rosemont (1984), 122 Ill. App. 3d 405, 408, 461 N.E.2d 616, 619, quoting O’Brien v. Colonial Village, Inc. (1970), 119 Ill. App. 2d 105,108.

Amtrak maintains that a “special relationship” exists in the form of “custodian-protectee” because Krabec was an in-patient at Hinsdale Hospital. As such, the hospital as well as its medical staff voluntarily undertook to provide care and treatment to Krabec between August 17, 1985, through August 26, 1985. Amtrak also points out that third-party defendants prescribed drugs for Krabec.

After review of the circumstances, however, we find that Amtrak’s reliance upon a “special relationship” in the nature of custodianprotectee is misplaced. Our supreme court has refused to extend the duty of health care professionals to third-party plaintiffs who had neither a direct physician-patient relationship nor a “special relationship” with either the plaintiff or with the health care provider. Estate of Johnson v. Condell Memorial Hospital, 119 Ill. 2d 496, 520 N.E.2d 37; Kirk v. Michael Reese Hospital & Medical Center, 117 Ill. 2d 507, 513 N.E.2d 387.

We find that third-party defendants owed no duty to Burton, who was a remote unidentified, unknown third party who became the victim in this unfortunate incident. Krabec made no specific threat of violence toward Burton, nor was there any “special relationship” between third-party defendants and Burton to establish the existence of a legal duty or knowledge that Krabec intended any harm to Burton. It simply was not within the realm of a reasonably foreseeable occurrence that Krabec would shoot a co-worker previously unmentioned to any of the staff members of the hospital during the nine-day course of his voluntary admission. Courts have consistently recognized that human behavior is too unpredictable and the field of psychotherapy presently too inexact to require that therapists be ultimately responsible for all the actions of their patients. Eckhardt v. Kirts, 179 Ill. App. 3d at 874, 534 N.E.2d at 1345, citing Brady v. Hopper, 570 E Supp. at 1339.

We conclude, therefore, that the trial court properly granted third-party defendants’ motion to dismiss because Amtrak failed to establish the existence of any legal duty extending from third-party defendants to Burton.

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

Judgment affirmed.

RAKOWSKI, P.J., and LaPORTA, J., concur.


text:
    STANISLAWA KOBIALKO, Plaintiff-Appellant, v. ENRIQUE LOPEZ, Defendant-Appellee.
    First District (6th Division)
    No. 1 — 90—2634
    Opinion filed June 28,1991.

      David S. Pochis, Ltd., and Alan D. Katz, both of Chicago (Andrew D. Synchef, of counsel), for appellant.
    Bullaro, Carton & Stone, of Chicago (Steven M. Pontikes and James R. Branit, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Stanislawa Kobialko, appeals from an order granting summary judgment in favor of defendant, Dr. Enrique Lopez, a plastic surgeon, in a medical malpractice case. The sole issue on appeal is whether the trial court erred by granting defendant’s motion in limine to bar plaintiff’s expert witness, and consequently, entering summary judgment in favor of defendant.

The record sets forth the following undisputed facts. In April 1981, plaintiff consulted defendant seeking alteration for aesthetic purposes of her nose (rhinoplasty) and her eyelids (blepharoplasty), which surgery defendant performed on May 12, 1981. Following the operation, plaintiff complained to defendant about disfigurations which resulted from the surgery. Defendant subsequently performed two additional surgeries on February 15, 1982, and March 30, 1982, both of which allegedly failed to completely correct the disfigurations.

Plaintiff’s complaint, filed on May 10, 1983, alleges that she suffered shock and damage to her nervous system and permanent disfigurement and facial scarring as a result of defendant’s negligence. On July 10, 1990, the motion judge granted defendant’s motion to bar plaintiff’s expert, Dr. Igor Niechajev, from testifying on the ground that he was unqualified to testify as to the relevant standard of care. Although the judge offered plaintiff additional time to seek another expert, plaintiff chose to stand by the expertise of Dr. Niechajev rather than seek another expert witness. The trial court subsequently granted summary judgment in favor of defendant, and plaintiff appeals.

The discovery and evidence depositions of Dr. Niechajev taken on February 14, 1990, revealed the following about his relevant experience. Plaintiff contacted Dr. Niechajev through a friend for an expert medical opinion concerning her condition. Dr. Niechajev examined plaintiff in Chicago on July 27, 1983, and submitted his report. At the time of the depositions in 1990, Dr. Niechajev was a plastic surgeon who operated a “mini-hospital” in Stockholm, Sweden, performing surgical operations and procedures, 25% to 30% of which involved nose or eye surgery. The clinic consists of two, fully equipped operating rooms and three beds. From 1983 to 1985, Dr. Niechajev did two or three rhinoplasties and three or four blepharoplasties each month. Between 1985 and 1990, Dr. Niechajev did about 250 rhinoplasties or about 50 to 60 annually. He is associated with various professional associations, including the International Society for Esthetic Plastic Surgery, the Swedish Society of Plastic Surgery, the Scandinavian Society of Plastic Surgery and the Swedish Society of Hand Surgery.

After graduating from a Polish medical school in 1968, Dr. Niechajev did a three-year residency in Stockholm, Sweden. He became licensed in Sweden in 1972, and then did a six-month residency in plastic surgery at a Stockholm hospital. During this time, he assisted a supervising doctor in 5 to 10 rhinoplasties and 5 to 10 blepharoplasties. Although he did some “easier reconstructive procedures” during this period, he did not perform any rhinoplasties or blepharoplasties. In 1973, Dr. Niechajev came to the United States and did a one-year residency in general surgery at the University of Illinois Hospital, during which time he saw only a few plastic surgery cases. While working at the Cook County Hospital burn unit during this time, he saw about 10 cases of plastic and reconstructive surgery, several involving rhinoplasties. He assisted a supervising doctor and sutured lacerations during the operations.

During 1974 and 1975, Dr. Niechajev did a fellowship at Mount Sinai Hospital in Chicago under the instruction of Dr. Eugene Tanski, the head of the department of plastic and reconstructive surgery. During this time, Dr. Niechajev performed 10 to 15 rhinoplasties and 5 to 10 blepharoplasties. He also assisted Dr. Tanski with 15 to 20 rhinoplasties and 15 to 20 blepharoplasties. At Mount Sinai, he dealt with emergency cases of plastic and hand surgery, 10% of which involved eyes and nose. During this period, he assisted in about 200 operations, about 15 of which were rhinoplasties. He also performed 300 to 350 unassisted surgeries, 10 of which were rhinoplasties. He spent about 10 hours per week reading books on plastic and reconstructive surgery recommended by Dr. Tanski, and was quizzed weekly and evaluated from time to time by Dr. Tanski. He also supervised general surgery residents.

Dr. Niechajev returned to Stockholm in November 1975, and after seven more months of training, he became board certified in plastic and reconstructive surgery and later in hand surgery. As chief resident in plastic, reconstructive and hand surgery from 1976 to 1979 at Malmo General Hospital in Sweden, Dr. Niechajev assisted in 10 to 20 rhinoplasties and blepharoplasties. From 1978 to 1983, he was a microsurgery instructor of medical students. Microsurgery relates to the extremities. During these years, Dr. Niechajev performed or assisted in between 10 to 15 rhinoplasties and 8 to 10 blephoraplasties. He also read pertinent articles and attended meetings in order to keep up on plastic surgery relating to the eyes and nose.

In 1988, he published a paper about surgical anatomy of the nose, and in 1989, his article, “External Incisions in Difficult Rhinoplasty,” was published in a Swedish medical journal. He has also lectured on the anatomy of upper eyelids. Since 1975, he has subscribed to three medical journals of plastic surgery, two of which are American. In addition, he reads all important new books in the field. He attends four or five meetings annually of the International Society, whose members include surgeons from various United States cities, including Chicago, Los Angeles, New York and Miami.

In 1983, he was appointed assistant professor in the department of plastic and hand surgery at Sabbatsberg Hospital in Stockholm and also opened his own clinic, as previously discussed. From 1983 to 1985, he did two or three rhinoplasties and three or four blepharoplasties monthly. In 1983, Dr. Niechajev was accepted for a three-month post-graduate fellowship in esthetic plastic surgery with two well-known plastic surgeons at the University of Miami, Drs. Baker and Gordon. During this time, he assisted or operated together with Drs. Baker and Gordon on 50 rhinoplasties and 80 blepharoplasties. Dr. Niechajev testified that the standard for plastic surgery and the procedures used are the same in Illinois and in Sweden. He described the field as “an international community” with “tight contacts” between Sweden and the United States. He stated that most Swedish doctors go to the United States for one to two years to work with American colleagues. In addition, they attend four or five international conferences each year where they meet with American doctors. In Dr. Niechajev’s opinion, defendant deviated from the standard of care and such deviation caused plaintiff’s facial disfigurations.

After reviewing the evidence and discovery depositions of Dr. Niechajev, the motion judge granted defendant’s motion in limine, and subsequently awarded summary judgment in favor of defendant.

Plaintiff contends on appeal that the evidence demonstrates that Dr. Niechajev was familiar with the standard of care in Chicago. In addition, plaintiff argues that an international standard of care exists for rhinoplasty and blepharoplasty and that Dr. Niechajev is familiar with that standard. Defendant responds that despite Dr. Niechajev’s relevant experience and training after 1982, he lacked such knowledge during 1981 and 1982, the years during which defendant performed the surgeries at issue. Moreover, defendant maintains that Dr.

Niechajev failed to show familiarity with the standard of care observed by surgeons in Chicago or a similar locality. Finally, defendant contends that the supreme court’s holding in Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867, does not extend to an international standard.

A plaintiff in a medical malpractice case must establish the standard of care against which the defendant doctor’s conduct is to be measured. (Petkus v. Girzadas (1988), 177 Ill. App. 3d 323, 532 N.E.2d 333.) The expert who establishes the doctor’s deviation must be both a licensed member of the school of medicine about which he opines and familiar with the ordinary methods, procedures and treatments of physicians in the actual or a similar community unless certain uniform standards apply regardless of locality or available conditions and facilities. (Purtill v. Hess, 111 Ill. 2d 229, 489 N.E.2d 867.) The Purtill court further stated that a doctor familiar with the national, uniform minimum standards rather than local, minimal nonspecialized standards is considered sufficiently knowledgeable of all localities. (Purtill v. Hess, 111 Ill. 2d 229, 489 N.E.2d 867.) The Purtill court encouraged a broad reading of the similar locality rule, recognizing the “relatively uniform standards for the education and the licensing of physicians.” Purtill, 111 Ill. 2d at 246, 489 N.E.2d at 874.

We believe that the evidence here demonstrates that Dr. Niechajev was familiar with the standard of care applicable to defendant in this case. In addition, the evidence suggests that certain uniform standards existed despite differences in localities. Under either basis, the trial court erred in granting defendant’s motion in limine.

Dr. Niechajev’s deposition testimony persuades us that his relevant training and education rendered him sufficiently familiar with the standard of care applicable in both Chicago and in a similar locality, Stockholm. At the time of his depositions, Dr. Niechajev had been certified as a plastic surgeon in Sweden since 1979 and had been licensed to practice medicine in Illinois since 1974. Between 1983 and 1985, Dr. Niechajev performed between five and seven rhinoplasties and blepharoplasties in Sweden monthly; during a three-month plastic surgery fellowship in Florida in 1983, he assisted two renowned plastic surgeons with more than 100 rhinoplasties and blepharoplasties; between 1985 and 1990 Dr. Niechajev performed 50 to 60 rhinoplasties annually in Sweden. Although the doctor’s experience prior to 1983 consisted primarily of assisting physicians in surgery, such experience was substantial. Indeed, in 1972 in Sweden, he assisted surgeons in between 5 and 10 rhinoplasties and blepharoplasties; in 1973 in Chicago, he assisted in 30 to 40 rhinoplasties and blepharoplasties and performed about 10 rhinoplasties unassisted; from 1975 to 1979 in Sweden, he assisted in 10 to 20 rhinoplasties and blepharoplasties; from 1979 to 1983 in Sweden, he performed or assisted in 18 to 25 rhinoplasties and blepharoplasties. This extensive experience in surgery, particularly blepharoplasties and rhinoplasties, demonstrates Dr. Niechajev’s familiarity with a Chicago standard at the time of these surgeries and with that applicable in Stockholm, a similar locality.

We find the following cases cited by plaintiff persuasive of his position that the “similar locality” rule applies here: Slezak v. Girzadas (1988), 167 Ill. App. 3d 1045, 522 N.E.2d 132; Fultz v. Peart (1986), 144 Ill. App. 3d 364, 494 N.E.2d 212; and Thompson v. Webb (1985), 138 Ill. App. 3d 629, 486 N.E.2d 326.

In Slezak v. Girzadas, plaintiff sued defendant, an orthopedic surgeon who practiced in Chicago, for his alleged malpractice in inserting a plate and screw device, known as a “Zimmer plate,” into plaintiff’s hip to repair a fracture. The trial court prohibited Dr. Laskin, a board-certified orthopedic surgeon who practiced in New York, from testifying as plaintiff’s expert because of his unfamiliarity.with local standards. This court reversed, finding that Dr. Laskin’s familiarity with the proper techniques in New York applied equally to that in Illinois and that the Zimmer plate was used nationwide.

In Thompson v. Webb, this court reversed an order granting summary judgment to defendant doctor who practiced in Mahomet, Illinois, 10 miles from Champaign. This court found that the trial court had interpreted the similar locality rule too narrowly and that sufficient evidence was presented to show that plaintiff’s expert, who practiced in Ohio, was sufficiently familiar with the standard of care in similar communities to provide an adequate foundation.

In Fultz v. Peart, defendant argued on appeal that plaintiff failed to present expert testimony from an expert who qualified under the similar locality rule. Defendant in Fultz practiced in southern Illinois; both experts practiced in St. Louis, Missouri. This court found the experts qualified because they practiced in metropolitan areas and were generally familiar with the standards of care in Illinois, although through contact with other professionals. In addition, the court relied on the fact that both experts testified that the disease at issue was not uncommon and that a national standard existed.

Relying on Slezak, Thompson and Fultz, we believe that Dr. Niechajev was sufficiently familiar with the standard of care in Chicago under the similar locality rule. Like the expert in Fultz, Dr. Niechajev maintained frequent contact with professionals in the United States. According to his deposition testimony, Dr. Niechajev attended four or five conferences annually with American plastic surgery professionals and regularly read American medical journals. We believe that this continuous contact allowed Dr. Niechajev to be sufficiently familiar with the standard of care applicable to defendant’s care of plaintiff in this case. In short, the evidence shows Dr. Niechajev’s knowledge of the national, uniform minimum standard applicable in the United States. Moreover, Dr. Niechajev testified that the same procedures were used in Stockholm and Chicago. Further, as in Fultz, the procedures at issue here were not uncommon.

Application of the locality rule is particularly inappropriate here because it would not further the rule’s purpose. The rule developed to protect the rural doctor when facilities, educational opportunities and an ability to travel caused a distinction between the care received in rural communities and urban centers. (Cassady v. Hendrickson (1985), 138 Ill. App. 3d 925, 486 N.E.2d 1329.) As the Thompson court noted, the locality rule applicable to a defendant “should not be narrowed any further than is necessary to promote the rationale.” (Thompson v. Webb, 138 Ill. App. 3d at 636-37, 486 N.E.2d at 330.) In this case, defendant inappropriately attempts to employ the locality rule to defeat plaintiff’s claim rather than as a method to shield a practitioner who has less opportunity for education or limited facilities.

Defendant maintains that Dr. Niechajev’s post-1982 experience should not be considered because defendant’s alleged negligent acts occurred in 1981 and 1982, relying on Smith v. South Shore Hospital (1989), 187 Ill. App. 3d 847, 543 N.E.2d 868, and Hirn v. Edgewater Hospital (1980), 86 Ill. App. 3d 939, 408 N.E.2d 970, in support of his position. Neither case, however, allows us to affirm the trial court.

In Smith v. South Shore Hospital, plaintiff sought to introduce into evidence the 1983 standards of the Joint Commission on Accreditation of Hospitals to establish the standard of care for administering a spinal anesthetic for a 1979 incident. This court found that although hospital licensing regulations may be substituted for expert testimony, these 1983 standards were not in effect on the date of the surgery and were, therefore, inapplicable to establish a standard of care for plaintiff’s 1979 occurrence. Smith is distinguishable, however, because the standards for accreditation at issue in that case were specifically identified to the year 1983. Moreover, such licensing regulations, which are typically written and formal, may be revoked, replaced or amended annually. We believe these characteristics distinguish Smith and render it inapplicable here.

Defendant contends that Him v. Edgewater Hospital stands for the proposition that the expert’s familiarity must be for the relevant time period. This court affirmed the trial court’s finding that plaintiff’s expert failed to establish the applicable standard of care “because his testimony did not pertain to the accepted or customary medical standards at that time or place, but rather only to the standard followed by his medical institution.” (Emphasis added.) (Hirn, 86 Ill. App. 3d at 948, 408 N.E.2d at 977.) Despite the quoted reference to “time,” whether the expert’s knowledge related to the appropriate time period was simply not an issue in Him, as defendant contends. Rather, this court found objectionable the expert’s reference to the standard procedures in his own office, noting that plaintiff must do more than merely show that another doctor would have acted differently. Therefore, defendant’s reliance on Him is misplaced. Moreover, as previously indicated, Dr. Niechajev had extensive experience before 1982 with rhinoplasties and blepharoplasties, and the record fails to indicate that the pertinent standard of care changed significantly from the years of Dr. Niechajev’s earliest experience in the mid-1970’s until his later experience.

In summary, we conclude that plaintiff adequately established a foundation to show that her expert was familiar with the practice in the same or similar community where defendant practiced. Moreover, because we so conclude, we need not decide whether an international standard exists or whether Purtill would extend to such standard.

For the foregoing reasons, the orders of the circuit court of Cook County granting defendant’s motion in limine and summary judgment are reversed, and the cause is remanded for further proceedings consistent with this opinion.

Orders reversed and remanded.

EGAN and LaPORTA, JJ., concur.


author: PRESIDING JUSTICE MANNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD GARRETT, Defendant-Appellant.
    First District (1st Division)
    No. 1 — 87—1194
    Opinion filed June 28,1991.

      Michael J. Pelletier and Ann C. McCallister, both of State Appellate Defender’s Office, of Chicago, for appellant.
    John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Margaret M. Regan, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

Defendant, Edward Garrett, was jointly indicted with his codefendants in a multicount indictment. Garrett’s trial was severed from the codefendants’. Following a jury trial, Garrett was convicted of one count of attempted murder, two counts of armed robbery and four counts of aggravated battery. The court declared a mistrial as to the attempted murder of V.S. and aggravated criminal sexual assault charge upon which the jury was unable to agree. He was sentenced to concurrent prison terms of 25 years for armed robbery, 20 years for attempted murder and 7 years for aggravated battery.

Defendant raises the following issues on appeal: (1) whether the State failed to prove beyond a reasonable doubt that defendant specifically intended to kill E.S.; (2) whether the defendant was denied a fair trial when (a) the prosecutor was allowed to read into evidence a police report notation regarding an alleged statement made by defendant, (b) a police officer was allowed to testify that he was assigned to the “Special Prosecutions Gang Unit,” (c) the trial court refused to clarify a point of law requested in a note from the jury and responded to the jury’s note out of the presence of either defendant or his lawyer; (3) whether the court erred by giving a jury instruction defining the word “victim”; and (4) whether the convictions and sentences for two counts of aggravated battery must be vacated because they are lesser included offenses of attempted murder, or alternatively, because they arise out of the same physical acts as the attempted murder conviction. The following evidence was presented at trial.

About midnight on May 6, 1985, E.S., accompanied by his aunt, travelled from Indianapolis to Aurora to visit relatives. He exited the expressway in Illinois in search of gas.

They ultimately found a gas station and purchased gas. E.S. concluded that he was lost and unable to find his way back to the expressway, so he used a pay phone at the gas station to call his relative in Aurora for directions. While talking on the telephone, E.S. was approached by a young man on a bicycle who introduced himself as “James” and inquired as to whether E.S. was having trouble. “James” offered to direct them back to the expressway, but he stated that he first must tell his father where he was going. E.S. accepted the offer, allowed “James” to put the bicycle he was riding in the trunk of E.S.’s car, and then drove “James” to three different locations. “James,” under the guise of searching for his father, directed E.S. to the three locations. The last of the three locations was a housing project known as Altgeld Gardens. E.S. parked his car in front of a lighted building and proceeded to get out of the car to check his water and oil while “James” walked towards a small apartment building and shouted for someone to come down. “James” then returned to the car accompanied by a man he introduced as his cousin, Lament. In actuality, “James’ ” true name was Edward Garrett, the defendant herein, and “Lament's” true name was Walter Munson (hereinafter Munson), one of the codefendants severed from this action.

E.S. testified that a few minutes after the defendant and Munson returned to the car, Munson struck him from behind and he fell to the ground. Munson picked E.S. up, placed a knife to his throat and said “give me your money or I will kill you.” The defendant and Munson began hitting E.S. and kicking him in his face. E.S. gave the defendant his billfold containing $150, family pictures, and his driver’s license. A third man identified as Theodus Spence, also a codefendant, joined the group and began beating E.S. E.S. then saw the defendant and Spence drag V.S. out of the car, hit her and remove her rings. The last thing E.S. heard was V.S. saying “please don’t kill me.” E.S. then reached for a picture of his baby lying on the ground and while reaching for the picture, Spence kicked him in the mouth and E.S. lost consciousness. When he regained consciousness he went to the roadway for help and saw the police arresting Spence.

V.S. testified that the defendant and another man pulled her out of the car and the defendant dragged her by her hair and collar into some bushes. The defendant had a six-inch switchblade which he placed at her throat and said “drop your pants, bitch, or off your head comes.” The defendant had vaginal intercourse with V.S. twice during a 10- to 15-minute period. Upon completion, defendant returned to the car and V.S. followed him. Defendant emptied the contents of V.S.’s purse on the ground, took her wallet, watch and rings and began beating and kicking V.S. She was able to get back into the car, and when E.S. regained consciousness, he also got back into the car. V.S. informed E.S. that she had been beaten and raped by the defendant. The defendant and the two codefendants ran at the sound of police sirens.

Officer Richard Cap testified that on May 7, 1985, at approximately 2:10 a.m., he responded to a radio dispatch that a battery was in progress near east 134th Street. Another call was received over the radio stating that “someone was being dragged into the woods.” When they neared the location, they saw Spence running in front of the police car and arrested him. Officer Cap then saw another man running and chased him for five blocks. However, he lost sight of that suspect.

V.S. and E.S. were taken to Roseland Community Hospital and treated for their injuries by Dr. Doddanna Krishna. A physical examination of E.S. revealed lacerations and trauma to the face, skull and extremities. The laceration of his lip required 15 stitches and two of his teeth were missing due to a recent trauma. Dr. Krishna concluded that E.S.’s injuries could be considered as life threatening but he was released four hours after arrival. Upon examination of V.S., Dr. Krishna concluded that V.S. had multiple injuries, predominantly to her face, nose and cheekbone. The gynecological examination revealed a small amount of whitish liquid present in the vaginal area but no lacerations, abrasions or swelling. V.S. was admitted to the hospital and discharged later that day because she wanted to go home. Dr. Krishna determined that V.S.’s injuries could also have been life threatening.

When E.S. left the hospital, he went to the police station and identified a photo of Munson from an array of photos. Munson was found at the defendant’s house by Detective James Lotito with a can of Old Milwaukee beer, i.e., the same brand of beer that V.S. had offered them earlier. Both Munson and the defendant were arrested and the beer was confiscated as evidence. At the police station E.S. identified Munson and the defendant in a lineup. V.S. also identified the defendant in a lineup upon her release from the hospital. After testifying on cross-examination that his report contained nothing relating to defendant’s participation in the beating of E.S., on redirect Detective Lotito testified, over defense counsel’s objection, that his report contained a statement reportedly made by defendant to his accomplices, wherein defendant said, “Take everything. The keys and the money and let’s get the fuck out of here.”

Mary Ann Furlong, a Chicago police laboratory technician, testified that she analyzed blood samples of the three assailants and the two victims. She concluded that the defendant’s gym shoes were stained with human blood consistent with V.S.’s blood grouping. She further testified that she did not find any evidence of sperm or seminal fluid when she analyzed a vaginal swab taken from V.S. Additionally, an analysis of the defendant’s jockey shorts failed to indicate the presence of semen or sperm.

Sergeant John Stevens testified that he was assigned to the “Special Prosecutions Gang Unit” in the State’s Attorney’s office. He stated that he witnessed the drawing of the blood and he retained custody and control over the blood samples until they reached the Chicago police crime lab. Defense counsel moved for a mistrial as a result of Sergeant Steven’s testimony that he was assigned to the “gang unit” or alternatively that the court give the jury a cautionary instruction. The motion was denied. At the completion of the State’s case, defendant’s motion for a directed verdict was denied and he rested his case without presenting any evidence.

While the jury was deliberating, the jury sent a note to the trial judge asking, “Does the threat of murder constitute attempted murder? Does there have to be ‘intent’ of murder shown?” The trial judge sent a written response directing the jurors to “read your instructions.” After several hours of deliberation the jury could not reach a verdict on the charges of aggravated criminal sexual assault and attempted murder of V.S. The court declared a mistrial as to those counts, and the jury found the defendant guilty of attempted murder of E.S., the armed robbery of E.S. and V.S. and four counts of aggravated battery of E.S. and V.S. The defendant’s motion for a new trial was denied.

The first issue the defendant raises is whether he was convicted by proof establishing his guilt beyond a reasonable doubt that he specifically intended to kill E.S. In order to prove defendant guilty of attempted murder, the prosecution was required to prove that defendant committed an act which constituted a substantial step toward the commission of a murder and that defendant acted with the intent to kill the victim. (People v. Graham (1985), 132 Ill. App. 3d 673, 682, 477 N.E.2d 1342, 1346.) Defendant maintains that the State’s evidence failed to prove that defendant specifically intended to kill E.S., since the character of the assault did not permit an inference of the requisite intent, citing People v. Harris (1978), 72 Ill. 2d 16, 377 N.E.2d 28, and People v. Jones (1989), 184 Ill. App. 3d 412, 429, 541 N.E.2d 132, 142-43. The State responds that intent can be inferred in this case from the very beginning of the encounter when defendant lured two innocent people to his own turf, where he then was joined by his two cohorts, who together beat the victims severely, stole from them, stopping the beating only when the police arrived upon the scene. The trial testimony, however, belies the latter assertion. V.S. testified that she heard sirens after the beating had concluded. Hence, the State’s contention that the police sirens “saved the lives” of the complainants is not supported by the record. The State further seeks to support its argument that defendant had the requisite intent to kill E.S. by relying on the evidence regarding injuries sustained by V.S. This reliance is also misplaced since the jury hung on the charge of attempted murder of V.S. Additionally, the evidence of specific intent must be viewed independently as to each attempted murder victim. People v. Velasco (1989), 184 Ill. App. 3d 618, 634, 540 N.E.2d 521, 531.

In People v. Thomas (1970), 127 Ill. App. 2d 444, 262 N.E.2d 495, a case relied on by defendant, the defendant was armed with a knife which he held on the victim while raping her, using it a few times to prick and probe her body. He struck the victim repeatedly, knocked her head against furniture, and even stabbed her in the shoulder. While the attack was in progress, he also threatened several times to kill her. The defendant was ultimately convicted of rape, attempted murder, robbery and aggravated battery. The review court reversed the attempted murder conviction, finding that the evidence was insufficient to establish the requisite mental state.

People v. Jones (1989), 184 Ill. App. 3d 412, 430, 541 N.E.2d 132, 142-43, established facts extremely similar to those in the instant case. The victim was beaten about the body, kicked repeatedly and suffered a broken nose at the hands of armed assailants. Additionally, they verbally threatened to kill the victim and his family. The victim in that case was treated on an outpatient basis and received a number of stitches for various lacerations. This court found there that the character of the attack on the victim did not warrant an inference of an intent to kill.

Likewise, in this case, the assailant was armed, yet did not use the weapon on the victim, and repeatedly assaulted victim causing lacerations and other serious injuries and also threatened to kill E.S. The victim was treated in the emergency room at the hospital as an outpatient. As a result of the attack, he received 15 stitches to his lip and lost two teeth. While the doctor testified that E.S.’s injuries “could be” life threatening, E.S. was released from the hospital without being admitted only four hours after his arrival there. Even though his injuries were serious enough, it must be noted that “every assault involving serious bodily injury does not necessarily support a conviction for attempted murder.” (People v. Jones, 184 Ill. App. 3d at 429-30, 541 N.E.2d at 143.) Just as it was in Jones, the character of the attack on E.S. was not of the type that justifies an inference of an intent to kill. Hence, even viewing the evidence in a light most favorable to the prosecution, as we must do, we fail to find sufficient evidence of specific intent to sustain defendant’s conviction for attempted murder.

Two other issues which are related to the attempted murder charge will be briefly discussed. Defendant raises an issue regarding the court’s response and handling of the jury’s request for clarification of a point of law requested in a written note during jury deliberations. The jury’s request consisted of two questions: (1) “Does the threat of murder constitute attempted murder?” and (2) “Does there have to be ‘intent’ of murder shown?” The court, in the absence of defendant, defense counsel and the prosecutor, responded in writing, directing the jury to “read [the] instructions.” In light of our prior resolution of the conviction for attempted murder, there is no necessity to address this issue. The other issue raised relating to the conviction for attempted murder is whether the convictions and sentences for two counts of aggravated battery must be vacated because they are lesser included offenses of attempted murder or, alternatively, because they arise out of the same physical acts as the attempted murder conviction. Because we have reversed the attempted murder conviction, we need only consider whether vacatur of one of the aggravated battery convictions is warranted. Defendant argues that each count of the indictment alleges the very same act. Both counts premise the aggravated battery on the identical act of knocking E.S.’s teeth out, but allege two separate sections of the statute, i.e., section 12 — 4(a) and section 12 — 4(b)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, pars. 12 — 4(a), (b)(1)).

In People v. Hawk (1980), 80 ILl. App. 3d 827, 400 N.E.2d 499, this court held that defendant’s acts of hitting and kicking the complainant would not support two separate convictions for aggravated battery since the hitting and kicking occurred almost simultaneously, at the same place and against the same individual. The court described defendant’s acts as “clearly indivisible.” Hawk, 80 Ill. App. 3d at 829, 400 N.E.2d at 500.

Likewise, in the instant case, the time lapse between the repeated hitting and kicking of E.S. in the face was insignificant. The evidence elicited at trial reveals that Munson and Garrett struck and kicked E.S. in the face. E.S. surrendered his wallet to Garrett and then Spence approached and commenced beating E.S. At this time, Spence kicked E.S. in the mouth, resulting in the loss of two of his teeth. But more importantly, each count referred to the kicking out of the two teeth. The prosecutorial intent appears to bear out defendant’s contention that both counts alluded to the same factual matrix. Accordingly, one count of aggravated battery will be vacated.

Defendant next contends that the court erred by giving a jury instruction defining the word “victim.” The instruction in question is Illinois Pattern Jury Instructions, Criminal, No. 11.66 (2d ed. Supp. 1989), which reads as follows:

“The word ‘victim’ means a person alleging to have been subjected to the offense of aggravated criminal sexual assault.”

It was given over defense objection, and on appeal defendant asserts that the instruction unduly served to convey the judge’s sympathy toward V.S. and implicitly informed the jury that as a matter of law V.S. was a victim. Thus, defendant argues, the instruction failed as a neutral principle of law. Defendant maintains that by defining this word, which is a nontechnical word of common usage, undue emphasis was focused on V.S.’s testimony and served to improperly direct the jury’s attention to a portion of the evidence. Conversely, the State argues that this issue is moot since the instruction related to only the charge of aggravated criminal sexual assault and the jury failed to reach a decision as to that charge. Because of this result, the State argues that the jury was obviously not convinced that V.S. was a “vietim” of aggravated criminal sexual assault which, it urges, inured to defendant’s benefit.

Taking into consideration the facts and the applicable law, the trial court must use IPI instructions unless it deems such instructions as inaccurately stating the law. (People v. Mitchell (1979), 78 Ill. App. 3d 458, 462, 397 N.E.2d 156, 160.) The purpose of jury instructions is to provide for the jurors those principles of law applicable to the facts that will aid the jurors to reach a correct conclusion in accordance with the law and the evidence presented at trial. (People v. Plum (1976), 44 Ill. App. 3d 922, 925, 358 N.E.2d 1235, 1237.) A court of review, in determining the adequacy of instructions, will take all of the instructions as a whole to ascertain if they fully and fairly cover the law. People v. St. Pierre (1975), 25 Ill. App. 3d 644, 650, 324 N.E.2d 226, 230.

Defendant’s major contention seems to be that notwithstanding the jury’s failure to reach a decision on the sex offense charge, the giving of this instruction was prejudicial to defendant in that the jurors may have been unfairly persuaded to convict him of aggravated battery and armed robbery because the instruction implied that she was a victim. We disagree. The definition was given in conjunction only with the sex offense charge. Additionally, the record overwhelmingly supports defendant’s convictions for aggravated battery and armed robbery. Ms. V.S.’s testimony revealed that defendant commenced beating her when she was near the car; he took her purse and emptied the contents from it; then defendant beat her repeatedly in the face with his fist; she was kicked repeatedly in the face, nose, eye, jaw and ribs. Her testimony was corroborated by that of Dr. Krishna, who found that V.S. suffered multiple injuries to her face, nose and cheekbone, had blood in the nose and mouth and bruises and cuts on her legs. X rays taken of her revealed a fractured nose and a fractured cheekbone. Dr. Krishna also observed that V.S. was unable to open her left eye; her nose was swollen; blood was present in the nose and the left side of her face was swollen. Dr. Krishna opined that the injuries were consistent with being repeatedly punched and kicked and that such injuries could have been life threatening. Finally, evidence was presented which revealed that the bloodstains present on defendant’s shoes were consistent with V.S.’s enzymes to the exclusion of the other people involved.

Likewise, the evidence of armed robbery of Ms. V.S. is ample in support of the jury’s verdict. V.S. testified that one of the codefendants took the rings off her finger while defendant was armed with a six-inch-long blade. Her wallet and watch also were taken. E.S. testified that one of the codefendants held a knife to his throat and demanded money. Not only was money taken, but clothing, a cooler of Old Milwaukee beer and a cooler of meat. The arresting officer found defendant and his cohort to be in possession of Old Milwaukee beer upon their arrest and, finally, both victims identified defendant in a lineup.

Accordingly, in light of the principles enunciated herein, we find that the trial court’s instruction defining the term “victim” was not an abuse of discretion and properly informed the jury of the correct principles of law applicable to the facts of the instant case. But assuming arguendo that such instruction was erroneous, in light of the overwhelming evidence as to the charges of armed robbery and aggravated battery, we deem such error to be harmless.

The final issue we are called upon to resolve is whether the defendant was denied a fair trial when the prosecutor was allowed to read into evidence a police report notation regarding an alleged statement made by defendant and when a police officer was allowed to testify that he was assigned to the special prosecutions gang unit.

Addressing the police report notation, police reports are usually not admissible in evidence. (People v. Walls (1980), 87 Ill. App. 3d 256, 408 N.E.2d 1056.) Generally, a police report summarizes information obtained from various sources during the course of an investigation. Consequently, they are the product of secondhand knowledge as to the reporting officer and, hence, hearsay. Our courts have repeatedly held that the use of such reports in criminal prosecutions to prove the truth of those matters asserted therein results in an almost certain “collision [course] with confrontation rights.” (See generally McCormick on Evidence §316, at 891 (3d ed. 1984).) In order to protect those rights it is imperative that police officers only testify to those matters that are within their own personal knowledge. (People v. Banasik (1981), 93 Ill. App. 3d 612, 417 N.E.2d 790.) It is permissible, however, after the appropriate foundation is laid, to use such reports for the purpose of refreshing the recollection of the witness (People v. Morris (1978), 65 Ill. App. 3d 155, 382 N.E.2d 383), as evidence of past recollection recorded (People v. Carter (1979), 72 Ill. App. 3d 871, 391 N.E.2d 427), or for impeachment of the witness (People v. Turner (1963), 29 Ill. 2d 379,194 N.E.2d 349).

In the case at bar, defendant complains of the manner of redirect examination by the State of Detective Lotito. On cross-examination, he testified that his written reports contained no reference to defendant’s participation in the beating of E.S. On redirect, over the defendant’s objection, the State elicited the following testimony from Detective Lotito:

“MR. TSUKUNO [Assistant State’s Attorney]: Detective Lotito, I show you a one-page document now identified as People’s Exhibit 35 for identification. Do you recognize that document as a part of a two-page major crime worksheet?
A. It appears to be the back page of my major crime worksheet.
Q. Now, in People’s Exhibit Number 35 for identification, did you include within the report with reference to Edward Garrett only that Edward Garrett then said, ‘Take everything. The keys and the money, and let’s get the fuck out of here’?”

Defendant asserts that this testimony was offered to prove the truth of the matters asserted therein, suggested to the jury that Garrett’s role in the attack on the victims was that of leader and thereby unfairly persuaded the jury to believe that defendant was accountable for the actions of his two codefendants. The significance of this, defendant maintains, was reflected by the jury’s written request to the judge for clarification on the issue of accountability. He maintains that the hearsay testimony may well have been a decisive factor in the jury’s verdict. Finally, as to this issue defendant urges that the erroneous manner of redirect examination of Detective Lotito resulted in the improper admission of a police report into evidence, citing People v. Wilson (1984), 123 Ill. App. 3d 798, 463 N.E.2d 890.

The State denies that the use of the report was to prove the truth of the matters asserted therein, but rather was admissible to “clarify an inference” made on cross-examination. Contrary to the State’s position, however, it is clear that the State read the substance of an inculpatory statement allegedly made by the defendant during the occurrence. It would have been sufficient and appropriate to elicit from Detective Lotito that his report did make reference to defendant’s involvement in the occurrence. It was unnecessary to elicit the substance of the statement. Hence, we agree with defendant that the evidence was hearsay. Now that we have so decided, we must determine whether the admission of the evidence prejudiced defendant. The victims’ testimony provided graphic details of how instrumental defendant was in the planning and execution of this attack on them. According to their testimony, from the beginning to the end, he directed them to the location of the attack under the guise of looking for his father, participated fully in the beatings inflicted upon each of them, and he took property from them’ Clearly, the evidence regarding defendant’s leadership role was overwhelming. Consequently, we fail to see how the admission of the statement influenced the jury’s decision. We find no prejudice by its erroneous admission and deem it to be harmless error.

Lastly, defendant contends that admission of Sergeant Stevens’ testimony that he was assigned to the special prosecutions gang unit was reversible error. He urges that as a result of its admission, he was denied a fair trial because the evidence implied that the incident at issue was gang related. He argues that this evidence was incompetent and irrelevant, and its admission requires a reversal of the conviction and a remand for a new trial. A reviewing court will not disturb the trial court’s evidentiary rulings, absent an abuse of discretion and a showing of prejudice to the defendant. (People v. Holman (1987), 157 Ill. App. 3d 764, 775, 510 N.E.2d 1139, 1146.) In the instant case, Sergeant Stevens testified that his duty in connection with the case was merely that of custodian of evidence. In response to a preliminary question, he identified himself and stated what his assignment was. Defense attorney moved for a mistrial predicated on Sergeant Stevens’ identification of himself as a part of the special prosecutions gang unit. She alternatively requested the court to give a cautionary instruction to the jury. Both motions were denied, and the witness was then meticulously cross-examined regarding his role in the case. Specifically, the following questions were asked and answers given:

"MS. ANDERSON [Defense Attorney]: You are a special agent assigned to that office?
A. Yes.
Q. You are assigned to the Gang Prosecution?
A. Correct.
Q. You’re here to testify today solely as a custodian being you watched blood being drawn from certain characters?
A. Yes.
* * *
Q. Other than being present at the time of the drawing, the extraction of blood, that was your only role here, correct.
A. Correct.
* * *
Q. Your particular role in gang prosecution has no relevance to this case, isn’t that right? You were there to oversee that the blood was properly drawn?
A. Correct.”

Defendant analogizes Sergeant Stevens' testimony to that of the prosecutor in People v. Blissitt (1973), 12 Ill. App. 3d 551, 299 N.E.2d 562, wherein the prosecutor testified that after speaking to the police officers who investigated the case, he recommended that defendant be charged with murder. We held that implicit in that testimony was the prosecutor’s belief regarding the guilt of the defendant. (Blissitt, 12 Ill. App. 3d at 554, 299 N.E.2d 563.) We find Blissitt distinguishable from the case at bar. Sergeant Stevens did not discuss in any detail what his duties were and he never expressed any opinion or belief regarding the facts of this case. His sole function in the case was as custodian of certain physical evidence. We deem the preliminary question regarding his assignment to be an innocuous part of the foundational requirements for admission of the physical evidence. We find no prejudice to the defendant by virtue of its admission nor do we find error in the court’s refusal to give a limiting instruction.

For the foregoing reasons, this court affirms in part and vacates in part the judgment of the circuit court of Cook County.

Affirmed in part; vacated in part.

BUCKLEY and O’CONNOR, JJ., concur.