text:
    FRANCES HARMON, Plaintiff-Appellee, v. JASHBHAI PATEL, Defendant-Appellant.
    First District (1st Division)
    No. 1—91—3329
    Opinion filed May 10, 1993.

      Lord, Bissell & Brook, of Chicago (William C. Anderson III, Hugh C. Griffin, and Sandra K. Macauley, of counsel), for appellant.
    Thomas C. Moore, James C. Reho, and Jane F. Anderson, all of Chicago, for appellee.
   JUSTICE BUCKLEY

delivered the opinion of the court:

This appeal arises from a medical malpractice action brought by plaintiff Frances Harmon against defendant Jashbhai Patel, M.D., for failure to diagnose and, treat a staph and strep infection which allegedly resulted in necrotizing fascitis, thereby necessitating emergency and follow-up surgery. After a jury trial in which plaintiff’s expert testified, plaintiff received a verdict in the amount of $508,750. Defendant appeals the verdict on the grounds that the circuit court erred in refusing to strike plaintiff’s expert’s standard of care testimony as being inconsistent with his deposition testimony in violation of Supreme Court Rule 220 (134 Ill. 2d R. 220) and that her expert’s testimony was insufficient to establish proximate cause.

On November 30, 1983, plaintiff’s car struck a large water pipe, causing her to hit her head and suffer a cut on her right knee. Plaintiff’s sister, Patricia Welch, took her to St. James Hospital, where she was admitted. On December 2, 1983, plaintiff began suffering considerable pain in her right leg and informed the nurses and defendant about the pain. Defendant told plaintiff not to worry because no bones had been broken, and that the knee was merely bruised. By her third full day in the hospital, December 3, plaintiff’s knee was worse. The knee was continuing to swell. Additionally, not only was the knee starting to change to a pinkish and yellowish color, but the color change had already crept to the beginning of her thigh. Plaintiff testified that she could not keep any cover on the knee because it felt so hot and informed defendant of this.

On plaintiff’s fourth day in the hospital, the swelling had continued to travel further up her thigh and the pain was increasing. She began receiving injections of Demerol, which made her pain temporarily subside. She further testified that there was yellowish pus, which had an unpleasant odor, coming from the knee wound. Again, plaintiff informed defendant of the above. The next day progressed much like the fourth day had. Referring to the sixth day of her hospital stay, plaintiff described her leg as “gross” because it was “yellow, pink, red, whatever” and “looked like a bunch of worms.” She complained to defendant that her leg was still hot and now had begun to itch. The pain had also travelled so that her “entire body was in pain.” Plaintiff testified that her stomach was swollen to the point that it appeared that she was four or more months pregnant. Further, she could not have a bowel movement. Plaintiff claimed to have informed everyone that came into her room of her condition, including defendant. By the seventh and eighth day in the hospital, plaintiff was so nauseated that she could not eat. Defendant, however, explained that what was wrong with plaintiff’s leg was “going to run its course.”

On the ninth night, plaintiff requested a glass of water. When the nurse brought her the water, a pain shot through her and she dropped the water. Plaintiff pleaded with the nurses to call her mother or a doctor. When the nurse refused, stating that she was hallucinating, plaintiff attempted to reach the telephone on the side of her bed; the nurses wrestled it away from her. Finally, plaintiff successfully contacted Welch, who came to the hospital immediately. Welch demanded that the nurse call defendant. Welch did speak with defendant at between 2 and 3 a.m. on the morning of December 10, relating to him plaintiff’s condition. Defendant responded that he would come to the hospital right away. Defendant, however, did not come until at least four hours after Welch had spoken to him. Another doctor, Dr. James McLean, accompanied defendant and examined plaintiff. After the examination, McLean obtained plaintiff’s consent for immediate surgery. Approximately 45 minutes after McLean’s examination, plaintiff underwent surgery.

Plaintiff underwent two surgical procedures to treat an infection known as fulminating necrotizing fascitis. During the surgical procedures, over 20 bone-deep incisions were made in plaintiff’s leg in order to release the pus and infection. Plaintiff suffers numerous permanent and disfiguring scars, as well as significant functional impairment.

At trial, plaintiff’s expert, Dr. Richard Considine, testified that defendant failed to diagnose and treat plaintiff’s staph and strep infection. Considine opined that defendant’s malpractice lay in his failure to diagnose and treat, and thereby eliminate, the staph and strep organisms before they could cause the necrotizing fascitis.

Defendant testified at trial that he did not note plaintiff’s knee wound until December 4. Defendant did, however, treat plaintiff for a yeast infection which he diagnosed from a urine test. This treatment did not have any relevance to plaintiff’s knee, and he eventually admitted that he never prescribed any antibiotics to treat her knee. Defendant further testified that as late as December 5 there was no change in the swelling of plaintiff’s leg. On December 6, he ordered a culture on her knee wound. Defendant also admitted that he did not suspect a leg infection until late in the evening of December 8.

Next, defendant’s expert, Dr. Coleman Seskind, testified. He had reviewed plaintiff’s medical records and noted that contrary to defendant’s testimony, the swelling in plaintiff’s knee and leg continued throughout her hospital stay. Seskind further testified that clinically significant drainage from plaintiff’s knee did not begin until December 8. Additionally, Seskind admitted that the record contained a measurement of plaintiff’s thigh which indicated that her right thigh was six inches greater in diameter than her left thigh, although he felt this fact was not “clinically significant.” Lastly, he stated that part of the basis for his opinion thát defendant properly treated plaintiff was the assumption that defendant realized that there was increasing swelling in her leg. Defendant, however, testified that he never noticed increased swelling between the day he first saw plaintiff and the day of her first surgery.

The jury returned a verdict in favor of plaintiff in the amount of $508,750. Defendant now appeals.

A jury verdict based upon conflicting evidence should not be set aside unless opposite evidence was clearly evident. (Topp v. Logan (1990), 197 Ill. App. 3d 285, 554 N.E.2d 454.) It is the function of the jury to weigh contradictory evidence and to judge the credibility of witnesses at trial. Pharr v. Chicago Transit Authority (1984), 123 Ill. App. 3d 205, 462 N.E.2d 753.

At trial, Considine testified that by December 4, plaintiff’s fourth day in the hospital, defendant should have diagnosed and treated the staph and strep infection in plaintiff’s knee which was spreading upward to her thigh. Defendant did not object to that testimony. Then, Considine opined that to a reasonable degree of medical certainty, if the staph and strep infection had been properly diagnosed and treated with oral antibiotics beginning on December 4, plaintiff’s surgery would have been avoided. In his opinion, the surgery would have been unnecessary because the infection would have cleared up prior to becoming necrotizing fascitis. Thus, Considine opined that as a result of defendant’s breach of the standard of care, plaintiff’s infection turned into necrotizing fascitis.

Defendant argues that since the circuit court found that the above testimony violated Supreme Court Rule 220(d) (134 Ill. 2d R. 220(d)), he is entitled to judgment notwithstanding the verdict or, in the alternative, to a new trial. The circuit court found that Considine’s testimony at trial contradicted his deposition testimony in violation of Rule 220(d), but held that the extensive cross-examination cured that violation.

During his deposition, Considine was asked a series of questions relating to the time at which oral antibiotic treatment would have prevented the existing staph and strep infection from becoming necrotizing fascitis. At deposition, Considine testified that it was his medical opinion that oral antibiotics would not have been appropriate on December 6, 5, and 4. He explained his opinion by stating that oral antibiotics definitely would have been appropriate on December 3 because that was when defendant should have suspected infection, due to the fact that plaintiff was running a temperature accompanied by swelling and pain in her knee around the puncture wound. He further testified during his deposition that if defendant had ordered appropriate antibiotics on December 3, he did not “think you would be talking about deviation from care.” Additionally, Considine stated during his deposition that if defendant had ordered antibiotics on December 3, “maybe he would have avoided a lot of things that happened later on.” At trial, however, Considine testified that if defendant had begun to properly diagnose and treat the staph, and strep infections by December Jk, he would not have breached the standard of care. Defendant argues that the trial testimony differs from the deposition testimony and, therefore, violates Supreme Court Rule 220(d). The trial testimony, however, is more conservative than the deposition testimony, which was that defendant should have prescribed antibiotics on December 3. Thus, the trial testimony favors defendant by allowing him one more day before, in Considine’s medical opinion, he deviated from the standard of care. Defendant, by his own admission, did not even suspect an infection in plaintiff’s knee and leg until December 8.

Defendant cites Lowney v. Arciom (1992), 232 Ill. App. 3d 715, 597 N.E.2d 817, and Marshall v. Taylor-Wharton Co. (1992), 234 Ill. App. 3d 596, 599 N.E.2d 1015, to support his argument that he is entitled to a new trial because Considine’s trial testimony deviated from his deposition testimony, thereby violating Rule 220(d). In Lowney, the court held that an expert’s testimony at trial as to defendant’s failure to warn a patient of risks of a procedure should not have been admitted because the expert failed to mention the duty to warn when asked at his deposition to give every opinion he had concerning the doctor’s treatment of the plaintiff. (Lowney, 232 Ill. App. 3d 715, 597 N.E.2d 817.) Thus, in Lowney, there was a complete failure to testify at deposition to a failure to warn, and consequently testimony at trial regarding such was a surprise. In Marshall, the court found that plaintiff’s expert violated Rule 220(d) by introducing new evidence, specifically, testimony of design alternatives which had never been discussed in deposition or disclosed prior to trial. (Marshall, 234 Ill. App. 3d 596, 599 N.E.2d 1015.) The case at bar does not involve new testimony on a subject. Here, the trial testimony is slightly different and, in fact, is favorable to defendant when compared to his deposition testimony. Thus, the above cases are distinguishable from the instant case.

Since the trial testimony was not new testimony, as in the cases cited by defendant, and further, because such testimony did not affect defendant detrimentally, we affirm the circuit court’s finding that any alleged violation of Supreme Court Rule 220(d) was cured by extensive cross-examination during which Considine explained that he felt that if appropriate antibiotics were given to plaintiff starting on December 3-4, there would have been ample opportunity for the drugs to cure the staph and strep infections prior to them becoming necrotizing fascitis. Accordingly, defendant is not entitled to judgment notwithstanding the verdict or a new trial on the basis of a violation of Rule 220(d).

Defendant’s next contention is that Considine’s testimony failed to establish that defendant’s deviation from the standard of care proximately caused plaintiff’s condition to worsen to the point that immediate surgery was necessary. Defendant argues that Considine’s causation testimony was speculation. Considine ultimately testified that to a reasonable degree of medical certainty defendant’s deviation from the standard of care by not prescribing antibiotics for plaintiff’s strep and staph infections proximately caused those infections to evolve into necrotizing fascitis. In medical malpractice cases, the causal connection “must not be contingent, speculative or merely possible, but there must be such a degree of probability as to amount to a reasonable certainty that the causal connection exists.” (Borowski v. Von Solbrig (1973), 14 Ill. App. 3d 672, 680, 303 N.E.2d 146, 152.) Although Considine was asked by defense counsel whether his opinion was “speculation” and he answered in the affirmative, he was effectively rehabilitated on redirect examination when plaintiff’s counsel inquired of Considine what he meant by “speculation,” and Considine responded that he meant “reasonable degree of medical certainty.” Considine explained that he thought defense counsel used the word “speculation” because medicine is not an absolute science.

Relying on Thomas v. University of Chicago Lying-In Hospital (1991), 221 Ill. App. 3d 919, 583 N.E.2d 73, defendant further argues that Considine’s alleged lack of experience rendered his causation opinions insufficient as a matter of law. Defendant is correct that the established law is that an expert’s opinion lacks probative value unless it is accompanied by foundation evidence establishing a witness’ expertise or experience to form such an opinion. (Hackett v. Equipment Specialists, Inc. (1990), 201 Ill. App. 3d 186, 559 N.E.2d 752.) In Thomas, the expert was testifying to matters dealing with obstetrics and gynecology when her specialty was pediatrics. (Thomas, 221 Ill. App. 3d at 925, 583 N.E.2d at 77.) Here, Considine was testifying to matters within his expertise, namely, infections. He had treated hundreds of infections, including staph and strep, and when he gave his opinions, he was relying on three decades of experience in treating such infections along with research he had done regarding necrotizing fascitis. The fact that none of the infections which he treated had progressed to necrotizing fascitis is irrelevant. Considine made a clear causal relationship between preexisting infections, particularly staph and strep infections, and the development of necrotizing fascitis. He also testified that preexisting strep and staph infections are associated with necrotizing fascitis. It is irrelevant that the medical community does not understand why some infections lead to necrotizing fascitis when left untreated and other infections do not.

The essence of Considine’s testimony is unmistakable: if the strep and staph organisms had been eliminated by appropriate treatment early on in the infectious stage, those organisms would not have been present to cause the necrotizing fascitis. This opinion was based on his knowledge of staph and strep infections and research he had done prior to trial. We hold that the plaintiff’s expert’s testimony was sufficient enough for the jury to find that defendant’s failure to properly diagnose and treat the staph and strep infections proximately caused the infections to become necrotizing fascitis, thereby requiring immediate surgery.

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

Affirmed.

MANNING, P.J., and O’CONNOR, J., concur.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    JUAN VALASQUEZ et al., Indiv. and on Behalf of All Persons Similarly Situated, Plaintiffs-Appellants, v. THE CITY OF CHICAGO et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—92—0876
    Opinion filed May 10, 1993.
    Alexander, Fennerty & Green, of Chicago (Michael Green, of counsel), for appellants.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Lawrence Rosenthal and Mardell Nereim, Assistant Corporation Counsel, of counsel), for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiffs, Juan Valasquez and Cora Sue Roberts, individually and as class representatives on behalf of all persons similarly situated, appeal the dismissal of their class action suit against defendant City of Chicago (the City) for failure to state a cause of action. Plaintiffs’ complaint, filed October 9, 1990, sounded in conversion and alleged that the City improperly failed to credit them and other past and current participants in the City’s deferred compensation plan (the Plan) with interim interest which accrued between the time of withholding and payment to the Plan’s administrator for investment. Plaintiffs sought class certification, an accounting, declaratory and injunctive relief, attorney fees and damages. The sole issue on review is whether the circuit court properly dismissed plaintiffs’ complaint pursuant to section 2—615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—615) for failure to state a cause of action.

Plaintiffs’ complaint, the well-pled facts of which must be taken as true for purposes of the City’s motion to dismiss, may be summarized as follows.

Since 1981, and as amended in 1985, the City has offered its employees a deferred compensation plan through which City employees may defer the receipt and taxation of designated portions of their salaries until future years. The Plan’s introductory paragraph states:

“The City of Chicago hereby adopts and establishes the City of Chicago Deferred Compensation Plan (hereinafter called the Plan). The Plan consists of the provisions set forth in this document, and is applicable to each public employee who elects to participate in the Plan. The Plan is effective as to each such public employee upon the date he becomes a ‘PARTICIPANT’ by signing and filing the Participation Agreement referred to herein with the Administrator.”

Plaintiff Valasquez, a former City employee, participated during his employment in the Plan, withdrawing his funds therefrom upon termination. Plaintiff Roberts, a current City employee, has funds enrolled in the Plan, but no longer authorizes further deductions from her paycheck.

Under the Plan, sums deducted from a participant’s paycheck are turned over to the Plan’s administrator for investment; participants may select investment options. The participant’s investment specification is used “as an index for determining the benefits to be paid” the participant.

Plaintiffs’ complaint calls into question the time period between the City’s withdrawal of monies from a participant’s paycheck and delivery of that sum to the Plan’s administrator. Under paragraphs 3.01 and 4.01, “[t]he EMPLOYER shall remit the deferred amount to the Administrator or his designated agent.” (Emphasis added.) Paragraph 4.01 further provides that “[t]he EMPLOYER shall be given a reasonable amount of time, not exceeding 30 days, to effectuate this delivery of the deferred amount to the Administrator or his designated Agent.” (Emphasis added.) The emphasized language is not defined by the Plan.

Plaintiffs complaint alleges that “[i]t was the custom and practice of the City *** throughout the relevant time period to hold the sums deducted from the gross salary of each and every [participant] for a time period approaching the 30 day maximum allowed before transferring such sums to the [Administrator].” Further, the City made it its “custom and practice” to: “hold the sums deducted from gross salaries *** in one or more bank accounts which earned interest”; “retain the interest on the sums deducted”; and “credit [such interest] to the general fund of the CITY and to use it for the CITY’S own general purposes.” Plaintiffs assert that “[s]uch conduct constitutes a conversion of funds which legally or equitably belong to the plaintiffs and all other person[s] similarly situated.”

On January 23, 1992, the circuit court granted the City’s motion to dismiss with prejudice. On appeal from a dismissal pursuant to section 2 — 615 of the Code, we must accept as true the well-pled facts of plaintiffs’ complaint and address whether those facts, if proved, state a cause of action. Barber-Colman Co. v. A & K Midwest Insulation Co. (1992), 236 Ill. App. 3d 1065, 1069, 603 N.E.2d 1215.

Plaintiffs’ claim that their complaint states a cause of action turns on whether the City is required to credit Plan participants with the claimed interim interest. Absent a requirement or duty on the part of the City to credit the claimed interim interest, Plan participants have no valid complaint that the City is taking money which does not belong to it.

To support their assertion that a duty or requirement exists, plaintiffs direct this court to the Plan document itself, the Internal Revenue Code (IRC) and the definition of “amounts deferred” under IRC regulations. Turning to the Plan first, we find nothing therein which would require the City to credit Plan participants with the claimed interim interest. At best, the Plan is either silent on the matter or ambiguous. However, neither silence nor ambiguity can assist plaintiffs.

Under paragraphs 7.01 and 7.02 of the Plan, the City is empowered: to construe the Plan; to resolve any ambiguities therein; to issue rules and regulations to administer the Plan; and to resolve any questions of fact necessary to decide a participant’s rights under the Plan. It appears that, to the extent the Plan leaves unresolved the question of interim interest, participants have contractually given the City the right to resolve the issue against them. Plaintiffs’ remedy, if any, rests with negotiating a different agreement, not having this court judicially rewrite the current one.

Relative to the IRC, plaintiffs argue that the Plan must comport with the requirements of the IRC. We agree; however, the relevant IRC provision — section 457 — does not require the City to credit participants with the claimed interim interest.

Section 457 provides in relevant part:

“§457. Deferred compensation plans of State and local governments and tax exempt organizations
(a) Year of inclusion in gross income
In the case of a participant in an eligible deferred compensation plan, any amount of compensation deferred under the plan, and any income attributable to the amounts so deferred, shall be includible in gross income only for the taxable year in which such compensation or other income is paid or otherwise made available to the participant or other beneficiary.
(b) Eligible deferred compensation plan defined
For purposes of this section, the term ‘eligible deferred compensation plan’ means a plan established and maintained by an eligible employer—
* * *
(6) which provides that—
(A) all amounts of compensation deferred under the plan,
(B) all property and rights purchased with such amounts, and
(C) all income attributable to such amounts, property, or rights,
shall remain (until made available to the participant or other beneficiary) solely the property and rights of the employer (without being restricted to the provision of benefits under the plan), subject only to the claims of the employer’s general creditors.” 26 U.S.C. §457 (1988).

We interpret “all amounts of compensation deferred under the plan” and “all income attributable to such amounts” to mean income once the deferred compensation has entered the Plan.

We reach the same conclusion under the applicable IRC regulations. “Amounts deferred” is defined within the IRC regulations to mean “compensation deferred trader the plan, plus income attributable to compensation so deferred.” (26 C.F.R. §1.457 — l(d)(3) (1992).) Like the IRC, the regulation speaks in terms of income from compensation once it has entered the Plan, not before.

Ryan v. City of Chicago (1986), 148 Ill. App. 3d 638, 499 N.E.2d 517; and O-Kay Shoes, Inc. v. Rosewell (1984), 129 Ill. App. 3d 405, 472 N.E.2d 883, cases upon which plaintiffs rely, are inapplicable. In Ryan, Illinois statutes required pension fund tax receipts to be held for the benefit of the pension funds. Plaintiff has cited no such parallel provision relative to deferred compensation plans, and the only lilinois statute found addressing the matter of deferred compensation plans is silent on the issue of interim interest (see Ill. Rev. Stat. 1989, ch. 1081/2, par. 24—101 et seq.).

In O-Kay Shoes, the court held that the treasurer of Cook County wrongfully withheld interest earned on the investment of condemnation awards which had been deposited with the treasurer. The rationale of this decision, however, was that the money “ ‘belonged to the condemnees and at no time did the county have a legitimate claim to it or any interest in it.’ ” (O-Kay Shoes, Inc., 129 Ill. App. 3d at 410, quoting Morton Grove Park District v. American National Bank & Trust Co. (1980), 78 Ill. 2d 353, 365, 399 N.E.2d 1295.) Here, amounts held by the City as deferred compensation belong to the City pursuant to the terms of the Plan. The Internal Revenue Code so requires. O-Kay Shoes is thus distinguishable.

In summary, plaintiffs’ complaint fails to state a cause of action. We accordingly affirm the order of the circuit court of Cook County which dismissed plaintiffs’ complaint with prejudice.

Affirmed.

CAMPBELL and BUCKLEY, JJ., concur.


author: JUSTICE CAHILL

text:
    THOMAS WELLS, Special Adm’r of the Estate of William D. Wells, Deceased, Plaintiff-Appellant, v. I F R ENGINEERING COMPANY, Defendant-Appellee.
    First District (4th Division)
    No. 1—92—0651
    Opinion filed May 13, 1993.
    Rehearing denied June 9, 1993.

      Corboy & Demetrio, of Chicago (Philip H. Corboy, Thomas A. Demetrio, and Robert J. Bingle, of counsel), for appellant.
    Herbolsheimer, Lannon, Henson, Duncan & Reagan, P.C., of Ottawa (Michael T. Reagan, of counsel), for appellee.
   JUSTICE CAHILL

delivered the opinion of the court:

The special administrator of the estate of William D. Wells filed a common law action against defendant IFR Engineering Company, seeking damages for the wrongful death of William D. Wells. The circuit court granted defendant’s motion to dismiss (Ill. Rev. Stat. 1989, ch. 110, par. 2—619) on the grounds that the Illinois Workers’ Compensation Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.5(a)) provided the exclusive remedy for injuries or death arising out of and in the course of employment, and so barred a common law action for wrongful death. The court held that plaintiff failed to allege an intentional tort — an exception to the exclusive remedy doctrine — because he did not plead that defendant acted with specific intent to injure decedent. Specific intent is the standard adopted by the court in Copass v. Illi nois Power Co. (1991), 211 Ill. App. 3d 205, 569 N.E.2d 1211. On appeal plaintiff contends that his complaint alleged sufficient facts for an intentional tort at common law and that we should reject the standard set in Copass. We affirm.

Decedent worked for defendant as an inspector, testing for cracks in tank welds. The work involved the use of chemicals which emitted highly toxic fumes. In June 1990 defendant assigned decedent to inspect tanks at Cargo Tank Services in Stickney, Illinois. Decedent used the chemicals to test for cracks. He died as a result of inhaling the fumes.

Plaintiff alleged in paragraph 12 of his complaint that defendant was guilty of the following intentional acts:

“a) failed to educate [decedent] about the hazardousness of the chemicals ***;
b) failed to warn [decedent] about the dangerous characteristics of the chemicals ***;
c) failed to educate [decedent] how to avoid being injured from using the chemicals;
d) failed to train [decedent] on how to safely use the chemicals in a closed and unventilated area; and
e) failed to provide [decedent] with a self-contained breathing apparatus for the Cargo Tank assignment.”

Plaintiff alleged in the next paragraph that defendant knew his acts as set forth in paragraph 12 created a “strong probability” (emphasis added) of death or great bodily harm.

Plaintiff contends on appeal, however, that the alleged facts show defendant knew with “substantial certainty” (emphasis added) that his acts would cause injury and urges us to move away from Copass and adopt a substantial certainty standard for pleading an intentional tort in a case otherwise confined to a remedy under the Workers’ Compensation Act.

Defendant relies on Copass and further argues that plaintiff’s complaint alleges nothing about substantial certainty but only that defendant acted with a “strong probability” (emphasis added) of causing injury to the decedent.

We agree with defendant’s reading of the complaint that plaintiff alleged only that defendant acted with a strong probability of causing injury and find that the complaint fails to plead an intentional tort, even under the standard he asks us to adopt on appeal. Plaintiff’s allegation that the employer acted with a strong probability does not rise to the level of knowing with a substantial certainty that decedent would be injured. The Restatement (Second) of Torts addresses the strong probability standard in relation to intentional torts. Comment/, following the Restatement, provides:

“Reckless misconduct differs from intentional wrongdoing ***. While an act to be reckless must be intended by the actor, the actor does not intend to cause the harm which results from it. It is enough that he realizes *** that there is a strong probability that harm may result ***. However, a strong probability is a different thing from the substantial certainty without which he cannot be said to intend the harm in which his act results.” Restatement (Second) of Torts §500, Comment / (1965).

For conduct to be intentional, a person must commit the act and he must also intend to produce the harm. But if a person commits an act and only realizes there is a strong probability that harm might result, his conduct is merely reckless.

Hlinois courts have refused to extend the common law liability of an employer to include accidental injuries resulting from the reckless negligence of the employer. Collier v. Wagner Castings Co. (1980), 81 Ill. 2d 229, 408 N.E.2d 198 (employer must have directed, encouraged, or committed the intentional torts alleged to escape the exclusive remedy provision of the Act); Rosales v. Verson Allsteel Press Co. (1976), 41 Ill. App. 3d 787, 354 N.E.2d 553 (action for wilful and wanton misconduct is an action at common law and barred by the exclusive remedy of the Act); Handley v. Unarco Industries, Inc. (1984), 124 Ill. App. 3d 56, 463 N.E.2d 1011 (allegations that defendant intended to kill plaintiffs and that defendant’s conscious purpose was that asbestos would become trapped in the lungs of plaintiffs were sufficient to allege that the employer committed an intentional tort which would fall outside the exclusive remedy provision of the Workers’ Occupational Diseases Act (Ill. Rev. Stat. 1981, ch. 48, pars. 172.40, 172.46)).

Plaintiff is bound by the allegations in his complaint. The facts as pleaded fail to show an intentional tort by defendant to cause injury to decedent; plaintiff alleged only that defendant knew with a “strong probability” (emphasis added) that injury would occur. Therefore, the Workers’ Compensation Act provides the exclusive remedy and the trial court appropriately granted defendant’s motion to dismiss the action.

We do not resolve plaintiff’s argument that we impose a less stringent standard for the “intent” requirement of a workers’ compensation intentional tort than that established in Copass. The issue is not before this court. In Copass the plaintiff alleged the employer acted with substantial certainty of causing injury, and the court held that an allegation of specific intent was required. Copass, 211 Ill. App. 3d 205, 569 N.E.2d 1211.

In this case plaintiff did not allege that the employer acted with substantial certainty. We have held that plaintiffs allegation that the employer acted with a strong probability does not rise to the level of knowing with substantial certainty that decedent would be injured and that plaintiffs allegation falls short of an intentional tort whether the substantial certainty or specific intent standard is applied.

The decision of the trial court is affirmed.

Affirmed.

JIGANTI, P.J., and HOFFMAN, J., concur.


author: JUSTICE COUSINS

text:
    MICHAEL POINDEXTER, Plaintiff-Appellant, v. THE CITY OF CHICAGO, Defendant-Appellee.
    First District (5th Division)
    No. 1—92—1279
    Opinion filed May 14, 1993.

      Kipnis, Kahn & Bruggeman, Ltd., of Chicago (Glenn J. Kahn, of counsel), for appellant.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, and Bobbie McGee Gregg, Assistant Corporation Counsel, of counsel), for appellee.
   JUSTICE COUSINS

delivered the opinion of the court:

The plaintiff, Michael Poindexter, filed a complaint against the defendant, City of Chicago (City), seeking to recover damages for personal injuries suffered when he fell into an open utility hole in the street.

Defendant answered and, as its affirmative defense, alleged that plaintiff had not fulfilled the requirements of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, par. 3—102(a) (Act)). The circuit court granted summary judgment in favor of the City on the ground that the City owed no duty to the plaintiff. Plaintiff appeals and contends that the trial court erred as a matter of law in granting summary judgment.

We affirm.

Background

In his complaint, plaintiff alleged that on March 16, 1990, at approximately 9:30 p.m., he was walking westbound on the sidewalk on 53rd Street in Chicago near where a railroad viaduct crosses over the street. Just before he reached the viaduct, he noticed that the sidewalk underneath it was “in a general state of neglect and disrepair.” He also noticed that the sidewalk ended on the other side of the viaduct. He stepped into the street in the middle of the block to cross over to the sidewalk on the other side. He fell into ah open manhole in the middle of the street.

Plaintiff further alleged that his fall and injury resulted because of defendant’s negligence in maintaining the public street.

Apparently in response to a notice to produce, the record includes the witness statement of Juanita Luice. According to her statement the accident occurred under the viaduct between two streets designated as Federal and Wentworth. Also in the record are what appear to be photocopies of photographs of the roadway showing an unbarricaded manhole and a viaduct immediately behind it.

Defendant filed its motion for summary judgment alleging that it owed no duty of care to plaintiff under the Act and, therefore, was not liable for plaintiff’s injuries. Attached as an exhibit to the motion was a photocopy of the complaint, stating that plaintiff fell in the manhole in the street. Also attached as an exhibit was what appeared to be an excerpt from plaintiff’s discovery deposition. In it plaintiff stated that he was on Federal Street, and not on the sidewalk, walking toward 53rd Street and was travelling west “straight under a viaduct.” As demonstrated by deposition exhibit Number 1 in the record, plaintiff indicated with an arrow his direction of travel on a photograph of the accident scene. That arrow indicates that plaintiff .was walking along the middle of the roadway and perpendicular to the viaduct when the accident occurred.

In his affidavit attached as an exhibit to his response to the summary judgment motion, plaintiff averred that the sidewalk on which he was originally proceeding adjacent to the roadway abruptly ended. Because of this he “entered and crossed 53rd Street to continue his travels on the sidewalk located on the south side of the roadway.”

The trial court granted defendant’s motion for summary judgment and dismissed plaintiff’s complaint with prejudice.

Opinion

On appeal plaintiff contends that the trial court erred in granting summary judgment because he was an intended and permitted user of the roadway and his use was reasonably foreseeable. The Act reads in relevant part (Ill. Rev. Stat. 1989, ch. 85, par. 3— 102(a)):

“[A] local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used ***.” (Emphasis added.)

To properly state a cause of action for negligence, the plaintiff must establish that the defendant owed a duty of care, a breach of that duty and an injury proximately caused by the breach. (Wojdyla v. City of Park Ridge (1992), 148 Ill. 2d 417, 421, 592 N.E.2d 1098.) Whether a duty of care exists in a particular situation is a question of law for the court and may be determined on a motion for summary judgment. Wojdyla v. City of Park Ridge, 148 Ill. 2d at 421.

For a pedestrian to be protected by the conditions in the Act, he must be both an intended and permitted user of the property under a municipality’s control. (Wojdyla v. City of Park Ridge, 148 Ill. 2d at 422.) Although pedestrians are apparently permitted to cross a busy street at midblock, this everyday occurrence does not mean that the municipality intended them to have unlimited access to cross the street at any time and under any circumstances. (See Wojdyla v. City of Park Ridge, 148 Ill. 2d at 426.) Marked and unmarked crosswalks are intended for the protection of pedestrians crossing streets within the meaning of the Act. (Wojdyla v. City of Park Ridge, 148 Ill. 2d at 426.) As a result, municipalities are liable for areas in which pedestrians are intended as well as permitted to use, but those areas do not include a highway in midblock. Wojdyla v. City of Park Ridge, 148 Ill. 2d at 426.

This case is governed by the holding and circumstances described in Wojdyla. The deposition photograph exhibit, as well as plaintiff’s complaint, the witness statement, and the affidavit, all indicate that the accident occurred while plaintiff walked along the middle of a roadway. That being the case, we hold that the trial court properly ruled that plaintiff was not an intended user of the middle of the street for pedestrian purposes, and his argument that defendant had a duty must fail on this basis. Di Domenico v. Village of Romeoville (1988), 171 Ill. App. 3d 293, 525 N.E.2d 242, cited in plaintiff’s brief, is distinguishable. In Di Domenico, the facts involved a motorist who was injured in a pothole on defendant’s street when he alighted in the roadway area immediately adjacent to his parked vehicle. Di Domenico held that such use of the street was both intended and permitted by the Act, because it was the only manner in which a motorist could depart the passenger side of his vehicle to an adjacent sidewalk. (See also Curatola v. Village of Niles (1993), 154 Ill. 2d 201, 214 (intended and permitted use only includes the street immediately surrounding a legally parked vehicle which is required by exiting and entering operators and occupants).) Such was not the case here. Plaintiff was not exit ing or entering a vehicle. The accident occurred as plaintiff was walking in the middle of the roadway.

For the foregoing reasons, we hold that the trial court did not err in granting summary judgment in favor of the City on the ground that the City owed no duty to the plaintiff. Because we so hold, we do not consider plaintiff’s claim that his actions and the incident were reasonably foreseeable by defendant.

The judgment of the circuit court of Cook County is affirmed.

Affirmed.

GORDON, P.J., and MURRAY, J., concur.


author: JUSTICE McNULTY

text:
      In re MARRIAGE OF DIANA COSS, f/k/a Diana Christenson, Petitioner-Appellant, and BERNARD CHRISTENSON, Respondent-Appellee.
    First District (5th Division)
    No. 1—92—2623
    Opinion filed May 21, 1993.

      John M. Morrone and James J. Morrone, both of John M. Morrone, P.C., of Palos Heights, for appellant.
    Rosenberg & Rosenberg, P.C., of Chicago (Russell S. Rosenberg and Howard P. Rosenberg, of counsel), for appellee.
   JUSTICE McNULTY

delivered the opinion of the court:

In this action, petitioner Diana Coss appeals the trial court’s denial of her petition to remove the minor child Amanda Christenson from Illinois to Greenville, South Carolina. For the reasons which follow, we affirm the decision of the trial court.

On November 9, 1990, a judgment for dissolution of marriage was entered which dissolved the marriage of petitioner Diana Coss, f/k/a Diana Christenson (Diana), and Bernard Christenson (Bernard). According to the terms of the judgment for dissolution, Diana and Bernard were granted joint legal custody of the parties’ sole minor child, Amanda Christenson (Amanda). Diana was to have physical custody of Amanda subject to specific visitation rights of Bernard. On October 31, 1991, Diana filed a petition to remove Amanda from Cook County, Illinois, to Greenville, South Carolina, where Diana had grown up and where her parents still reside, and where she also intended to establish a new residence. The present appeal follows the denial of that petition.

On appeal, Diana maintains that the denial of her petition for removal has resulted in manifest injustice or is against the weight of the evidence and as such this decision should be reversed. In re Marriage of Roppo (1991), 225 Ill. App. 3d 721, 587 N.E.2d 1031.

Upon the filing of a petition for removal, the Illinois Supreme Court has stated that there are five factors which should be considered by the court in a removal case. (In re Marriage of Eckert (1988), 119 Ill. 2d 316, 518 N.E.2d 1046.) The Eckert factors, which were considered by the trial court in denying the petition, are as follows:

“(a) whether the proposed move will enhance the general quality of life for both the custodial parent and the child or children;
(b) whether the proposed move is a ruse by the custodial parent to defeat or frustrate visitation;
(c) the motives of the noncustodial parent in resisting removal;
(d) the visitation rights of the noncustodial parent; and
(e) whether a realistic and reasonable visitation schedule can be reached if a move is made.”

In her appeal, Diana argues that the trial court’s decision that the proposed move would not enhance the general quality of life for both the custodial parent and the child is against the weight of the evidence. In considering whether a move will enhance the quality of life of a minor child, a court may consider the direct benefit to the child as well as the direct benefit to the custodial parent. (In re Marriage of Zamarripa-Gesundheit (1988), 175 Ill. App. 3d 184, 529 N.E.2d 780.) In this regard, Diana maintains and the evidence supports the fact that if she moved to Greenville, she would be able to live rent free in one of her father’s rental homes and that she would be able to attend Bob Jones University free of cost, because her father is a professor there. Diana contends that she could thereby provide Amanda with a better financial future than if she remained in Orland Park, Illinois. However, the evidence adduced at trial also indicated that Diana’s father could lease the rental home and send Diana the money so that she could live rent free in her Orland Park apartment. Also, Diana admitted that she had not explored the possibility of completing her education in the Chicago area. She argued that she was satisfied with the Orland Park neighborhood, the schools and the church she and Amanda attend. Additionally, Diana argued in the trial court that she would be able to continue her exact same employment (office management and recruiting duties at Employment Consultants, Inc.) if she relocated in Greenville. However, the trial court found this testimony incredible. All of the employees of Employment Consultants are in the Chicago metropolitan area, and Diana had worked for Employment Consultants for only 21h years. Furthermore, she had no employment contract. Diana also testified that although she would be able to work out of her home in Greenville, she could not work out of her home in Orland Park. In considering the aforementioned factors, we find that although the move to Greenville would prove comfortable to Diana and Amanda due to Diana’s close ties with her family, as the trial judge concluded, the general quality of life would not be substantially different than that enjoyed in Orland Park.

The trial court also considered the second Eckert factor — whether the proposed move was a ruse by the custodial parent to defeat or frustrate visitation. Although Diana has never discouraged or attempted to frustrate visitation, the move to Greenville would greatly reduce the time that Bernard would spend with his daughter. At present, Bernard visits with his daughter approximately 128 days and 76 nights a year (this includes weekends, some major holidays, and three weeks of continuous vacation). The proposed visitation would be 63 days a year, including four weeks in June, three weeks in August, 10 days in December and alternating Christmas holidays. While not an unreasonable visitation schedule, such plan would provide Bernard with substantially less time with Amanda. Additionally, the removal would weaken the contacts between Amanda and Bernard’s family (his parents, sisters and their children). Thus, although Diana’s motives in seeking removal were entirely proper, and not a ruse to avoid visitation, the net result of such removal would substantially reduce the contacts of Bernard and his family with Amanda.

In reaching his decision, the trial judge also considered Bernard’s motives in opposing the removal. In his decision and order he stated that Amanda was the most important person in Bernard’s life and that he found he would lose the relationship with her if the petition were allowed. Considering that the parties agreed to joint custody of Amanda, the judge was justified in giving careful consideration to the rights of Bernard, the nonresidential parent.

In reaching his decision, the trial judge carefully considered the Eckert factors as well as the policy of the Illinois Marriage and Dissolution of Marriage Act. (Ill. Rev. Stat. 1989, ch. 40, par. 609.) This policy is to insure the maximum involvement of both parents in matters involving the physical, mental, moral and emotional well being of the child. (Eckert, 119 Ill. 2d 316, 518 N.E.2d 1046.) The judge also considered the testimony of Amanda, herself, who stated that she wished she could see her father every day. In reviewing the evidence adduced at trial, we cannot say that the court’s decision is against the weight of the evidence or that manifest injustice will result. Accordingly, the judgment of the trial court is affirmed.

Affirmed.

GORDON, P.J., and COUSINS, J., concur.


author: JUSTICE BUCKLEY PRESIDING JUSTICE MANNING,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTONIO MEJIA, Defendant-Appellant.
    First District (1st Division)
    No. 1—89—3126
    Opinion filed May 24, 1993.
    MANNING, P.J., dissenting.
    Randolph N. Stone, Public Defender, of Chicago (Frank Madea, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, David Stabrawa, and Marcia G. Northrup, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Following a jury trial, defendant Antonio Mejia was found guilty of two counts of reckless homicide. The trial judge sentenced defendant to two concurrent four-year terms in the Illinois State Penitentiary. The judge also fined defendant $1,000 for the public defender’s costs and charged him $140 for court costs. The issues defendant raises on appeal are: (1) that he was not proven guilty beyond a reasonable doubt because the State failed to prove he was the driver of the car that caused the death of his two companions; and (2) that he is entitled to a new trial because his defense would have been different had his counsel been aware of several police reports which the State neglected to tender to defense counsel until after the prosecutor had presented his case. Additionally, we granted both sides in this litigation leave to file supplemental briefs on the issue of whether defendant was denied the effective assistance of counsel when, after receiving these reports in the middle of trial, defense counsel agreed to stipulate to the information in the reports instead of requesting another remedy.

Officer Michael Bennon testified that on April 18, 1987, at approximately 4:15 a.m., he and his partner, Officer Mark Juska, were stopped for a red light on Ogden Avenue at Milwaukee when they observed a 1971 green two-door Plymouth Fury (Plymouth) with three occupants traveling westbound on Chicago Avenue at a high rate of speed. According to Bennon, two of the occupants were in the front seat and one person was in the rear behind the front seat passenger. Bennon stated that the Plymouth went through a red light at Ogden, made a right turn and proceeded northeast on Ogden. Bennon testified that they pursued the Plymouth after turning on their “Mars” lights and their siren and activating the patrol car’s flashing high beam. Bennon estimated that they were about 200 to 250 feet behind the Plymouth and that the Plymouth was traveling at approximately 60 miles an hour.

According to Bennon, the Plymouth swerved hard to the left across the northbound lanes over the double yellow line to the southbound lanes and to the south curb. Bennon stated that, as the Plymouth was about to hit the south curb, it swerved back across the southbound lanes toward the north curb. Bennon estimated that the distance between their car and the Plymouth was “about 100 feet, maybe a little less” when the Plymouth first hit the retaining wall on the north side of the street. Officer Bennon described this first impact in detail:

“The vehicle struck the retaining wall. It bounced backwards, and it struck the wall again and, at that point, the vehicle, with the rear tires spinning, was turning to the side while riding along the wall.”

Bennon then testified that the car spun around and “completely changed directions while up against the wall.” Bennon estimated that, at the time the Plymouth turned while up against the wall, they were within 30 to 50 feet of the Plymouth. He emphasized that “I had to brake the squad car so I didn’t strike the vehicle.” He stated that, after the Plymouth turned, they “were broadside to the car, in other words perpendicular to it” and could see the driver. He further testified:

“The vehicle again proceeded from the north side of the northbound lanes, the east side of the street, across the road, across the northbound lanes, across the southbound lanes, strike [sic] the retaining curb on the southbound lane side of the street, the west side of the street.
It jumped the curb, went up on the sidewalk and hit the pillars, the retaining wall for the pedestrians on the sidewalk at the end of the sidewalk. It came to rest there.”

Bennon explained that, after the Plymouth came to rest, he stopped the patrol car about five feet behind the Plymouth. Bennon stated that they ran up to the driver’s door and “observed the driver of the vehicle sliding over” to the passenger seat and attempting to exit through the passenger side door. According to Bennon, the damage from the accident prevented the door from opening, however, and defendant had to exit through the driver side door. Bennon stated that at this point he did not see any other people within the Plymouth.

Bennon further testified that, when defendant exited the Plymouth, his breath smelled strongly of alcohol, his eyes were bloodshot, he was having trouble standing, and his speech was slurred. Bennon said that as he placed defendant under arrest, Juska ran over to the two victims, who lay in the northbound lanes just south of where the Plymouth came to rest. Defendant had a broken arm and small cuts and bruises on his head and was taken from the scene in an ambulance. Bennon also mentioned that they got two or three different names from defendant because it was hard to understand him. He stated that “M-I-K-I-A” was one of the names and “M-I-K-A” was another.

On cross-examination, Bennon conceded that in a traffic accident report made several hours after the incident, he did not include as graphic a description of the accident as he did at trial. Additionally, Bennon asserted that they only lost sight of the Plymouth “very briefly” for only a second or two in an underpass as the patrol car was entering the pass and the Plymouth was ascending. Bennon also admitted that he and his partner, Juska, spoke with Officers Smith and Wesolek, major traffic accident specialists, at the hospital on the morning of the accident. He denied telling Smith or Wesolek or hearing Juska tell Smith or Wesolek that both victims were front seat passengers. He also denied that he told either officer or heard Juska tell either officer that they were “300 feet behind the green vehicle when they lost sight of it where Ogden curves to the north.” Moreover, he denied telling Smith or Wesolek or hearing Juska tell either officer that they heard a loud noise and when they got to the curve in the road they saw the Plymouth on the west side of the road up against the concrete railing.

On redirect, the prosecutor brought out that Bennon had checked the “yes” box on his field report next to the question “did you see the defendant driving?” Bennon had not checked the box next to the question “if parked, was defendant behind the wheel?” Bennon explained that this box is only checked if the officer did not observe the accident, but is called to the scene or comes upon a stopped vehicle. He stressed that the reason he did not check this box was “because I didn’t come upon a parked vehicle. I saw the accident.”

On re-cross, Bennon maintained that he never lost sight of the Plymouth as it was crashing, but admitted that he did not see either victim “fly from the car.”

Officer Juska’s testimony was almost identical to Bennon’s testimony. He also described the accident in detail. He stated that the Plymouth struck the east side embankment and then turned 90 degrees and went perpendicular to them and across their path into the west side embankment. He testified that at that point they were approximately 30 feet away and could see into the Plymouth. He stated that he saw only the defendant in the car. According to Juska’s testimony, defendant was in the driver’s seat with his hands on the steering wheel. Juska said, however, that Bennon opened the passenger door to get defendant out of the Plymouth.

Dr. Yuksel Konakci, a Cook County assistant medical examiner, testified that both victims died from multiple internal and external injuries caused by extreme blunt trauma due to being thrown from the automobile during the crash. He also stated that tests upon both victims’ blood indicated that they were both legally intoxicated.

After Dr. Konakci’s testimony, the parties stipulated that blood was taken from “Antonio Mikia” who, in fact, is defendant Antonio Mejia, and the blood was transported to the Cook County medical examiner’s office. Dr. Michael Schaffer, a forensic toxicologist, testified that the blood sample was analyzed and was found to have a .146 blood-alcohol content.

After Dr. Schaffer testified, the court granted a defense request to recall Juska. Juska admitted to speaking with major traffic accident investigators Smith and Wesolek both at the scene and at the hospital. Juska said he did not recall telling nor did he hear Bennon tell either officer that they were 300 feet behind the Plymouth and lost sight of it where Ogden curves to the left going northbound. He also denied telling Smith or Wesolek or hearing Bennon state to Smith or Wesolek that they heard a loud noise and when they got around the curve they saw the Plymouth already on the west side of Ogden up against the concrete railing.

The State then rested and the judge excused the jury for the day. The judge then conducted a short conference with both parties to discuss the course of the proceedings the next day. Defense counsel indicated that, in addition to calling the defendant and Raphael Samaniego, the prosecutor “had indicated that he would make available to us Officer Smith and/or Wesolek in order to clarify some of this.” The trial judge incredulously responded, “Well, you’re saying that the State is offering to attempt to get defense witnesses?” The prosecutor stated that Wesolek was on furlough and they would be unable to notify him, but that Smith had been notified. The judge reminded defense counsel that, although the prosecutor surely would make his best effort to get the defendant’s witnesses in court, “it is the defense obligation to present witnesses.”

The following day before the trial resumed and the defense proceeded with its case, the prosecutor tendered to counsel seven police accident reports which the defense had requested prior to trial. One of the reports was written by Officer Hanson, whom defense counsel was unaware of because he had not been mentioned in any of the previously tendered reports. These reports contradicted both Bennon’s and Juska’s testimony and indicated that they had not seen the accident. At the start of the day’s proceedings, defense counsel made the substance of the reports known to the trial judge “because it may make somewhat of a difference eventually.” He made it clear he was merely informing the court and he gratuitously conceded that the prosecutor was without blame. The relevant portions of transcript read:

“[Defense attorney]: The reason I bring this up is only in the event that this — if there were to be a guilty verdict in this case. Judge, I have to complain about this and I—
THE COURT: Fine, you’re complaining. Fine, you’re objecting. What action do you want me to take? Who do you want me to hold in contempt of court?
[Defense attorney]: I don’t know that I want anyone held in contempt of court at all, but I do bring this up because, as I say, this changes our whole point of view.
I think — we made an opening statement that says we are going to produce certain witnesses. It is our belief that with this information, we need not even produce a witness.
* * *
THE COURT: Well, you’re bringing it to my attention, but you’re not asking the Court to do anything.
[Defense attorney]: I ask for no remedy at this stage, Judge.
THE COURT: Well, you see, don’t — don’t lead me to believe that you’re going to ask for a remedy later that I can’t give to you.
I mean, if the defendant is found guilty, the normal things that flow after a felony case will take place. So, don’t ask for any magical formulas that’s [sic] going to erase something later. If you have a — if you have a remedy you want to suggest to the Court now, I — I’ll consider it now.
[Defense attorney]: No.
THE COURT: I’m not going to do it three or four hours from now when you get a verdict that you don’t like. That’s too late.
[Defense attorney]: Our feeling is that we should proceed as we had planned, and I bring it up solely because it is important that I bring it up now.
THE COURT: Okay.”

The prosecutor explained that about V-k hours before at approximately 10:20 a.m., Smith came to his office because the defense had requested he be present in court. The prosecutor stated that, as he went through Smith’s reports, he noticed seven reports that he did not have in his files. Recognizing that these reports may be Brady material, he immediately copied them and made them available to defense counsel. The prosecutor stated, therefore, that he was willing to stipulate to the information contained in the reports “so as to not delay this trial in any form.” The defense agreed to stipulate “to the things that we want out of here.”

The jury was then called back and the trial judge instructed them that a stipulation was a “time-saving” device where the testimony of the witnesses is not challenged by either party. Defense counsel then read the stipulation to the jury. It was stipulated that if Smith or Wesolek were called to testify, they would both state that immediately after the accident they interviewed Bennon and Juska and then made out a police report. In that report they indicated that both of the victims were front seat passengers. Smith and Wesolek would also testify that when Bennon and Juska were chasing the Plymouth they informed communications that “due to the speed of the vehicle, [they were] about 300 feet behind the green vehicle when they lost view of it, where Ogden Avenue curves to the left to go northbound.” They would further testify that Bennon and Juska “heard a loud noise and when they got to the curve in the road, they observed the green Plymouth on the west side of Ogden, up against the concrete bridge rail.”

It was further stipulated that if Officer James B. Hanson was called to testify he would also state that he interviewed Bennon and Juska and that they indicated to him that they also made a report in which they indicated that they were “about 400 feet behind the vehicle and due to the incline and the curving of the roadway, [were] not able to observe the accident.” Additionally, it was stipulated that “[b]oth officers also related they did not know if the driver, Mikia, it says, knew that a squad was pursuing them.”

The defense then called the defendant as its only witness. Defendant testified that at approximately 5 p.m. on April 17, 1987, he and several friends, Jose Trejo and Raphael Samaniego, went cruising and drinking in a car that defendant borrowed from a co-worker. According to defendant, at approximately 10 p.m., they picked up Pedro Salgado. Defendant testified that they had just run out of beer so they stopped at a bar to get some more. Defendant stated that after they came out of the bar, Trejo took over the driving because “I wasn’t in no condition to drive.” Defendant testified that he lay down in the back seat on the passenger side. According to defendant, they continued drinking and cruising. About two or three hours later, at approximately 2:30 a.m., they dropped off Samaniego. According to defendant, Trejo was still driving. Defendant testified that at the time of the accident he was in the back seat on the passenger side. He stated that all he remembers is “the noise and flashing lights and a loud noise, and everything spinned [sic] around.”

Defendant’s first contention on appeal is that he was not proven guilty beyond a reasonable doubt because the State failed to show that he was the driver of the car that caused the death of his two companions. He asserts that Hanson’s stipulated testimony indicates that Bennon and Juska lied when they stated that they observed the entire accident and that they saw defendant driving the Plymouth. Defendant maintains that this stipulated testimony in conjunction with defendant’s denial that he was driving raises a reasonable doubt.

The responsibility of weighing the evidence, assessing the credibility of witnesses, and resolving conflicts in testimony is uniquely that of the jury. (People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 453, 473, citing Jackson v. Virginia (1979), 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573-74, 99 S. Ct. 2781, 2788-89.) In fulfilling its duty as the trier of fact, the jury “may believe as much or as little as it pleases of a witness’s testimony.” (People v. Beasley (1977), 54 Ill. App. 3d 109, 114, 369 N.E.2d 260, 264.) Our review of the sufficiency of the evidence, therefore, is limited to determining “ ‘whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.’ ” (Young, 128 Ill. 2d at 49, 538 N.E.2d at 472, quoting Jackson, 443 U.S. at 318-19, 61 L. Ed. 2d at 573-74, 99 S. Ct. at 2788-89.) As has been so often stated, “ ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis omitted.) Young, 128 Ill. 2d at 49, 538 N.E.2d at 472, quoting Jackson, 443 U.S. at 318-19, 61 L. Ed. 2d at 573-74, 99 S. Ct. at 2788-89.

In order for the State to prove defendant guilty of reckless homicide, it must show that defendant caused another person’s death by recklessly driving a motor vehicle in a manner likely to cause death or great bodily harm. (Ill. Rev. Stat. 1991, ch. 38, par. 9—3; People v. La Combe (1982), 104 Ill. App. 3d 66, 72, 432 N.E.2d 672, 676.) In the instant case, after a careful review of the record in the light most favorable to the State, we cannot say that the evidence was insufficient to support a finding of guilt beyond a reasonable doubt. The State and the defense never stipulated that Bennon and Juska lied; they stipulated that several other officers, if called to testify, would contradict Bennon’s and Juska’s assertions that they saw the entire accident and that defendant was behind the wheel. If the jury chose to believe the in-court testimony of Bennon and Juska, then the evidence was more than sufficient to support a finding of guilt beyond a reasonable doubt of reckless homicide.

Notwithstanding the fact that the evidence was sufficient to support a guilty verdict, we believe that had defense counsel called Smith, Wesolek and Hanson to testify in order to contradict the testimony of Bennon and Juska, instead of “saving time” by stipulating to their testimony, there is a “reasonable probability” that defendant would have been acquitted. When determining whether a defendant received the ineffective assistance of counsel, a reviewing court must be mindful that appellate review is governed by Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, and Illinois’ adoption of Strickland in People v. Albnese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246. These cases recognize that to succeed on such a claim, it must be shown that (1) counsel’s performance fell below an objective standard of reasonableness, and (2) “ ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” (Albnese, 104 Ill. 2d at 525, 473 N.E.2d at 1255, quoting Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) In evaluating the performance factor, there is a strong presumption that counsel’s conduct fell within a wide range of reasonable professional assistance and that the challenged conduct might have been nothing more than part of counsel’s sound trial strategy. (Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065.) In the end, “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 80 L. Ed. 2d at 692-93,104 S. Ct. at 2064.

Counsel’s performance in this case fell below an objective standard of reasonableness which, as a result, seriously undermines our confidence in the outcome. In his opening statement, defense counsel stated that the evidence would show that defendant was not driving the Plymouth when it crashed. He told the jury that Raphael Samaniego would testify that, when he was dropped off at his house, defendant was not driving. Later, after the State rested, he again informed the trial judge that Samaniego would testify. Samaniego, however, was never called.

Additionally, the focus of defense counsel’s cross-examination of both officers was that they had made statements contradictory to their in-court testimony to at least two other officers just after the accident. Counsel cross-examined Bennon by asking him whether he had ever told traffic investigators Smith or Wesolek that both victims were front seat passengers or that neither he nor his partner actually saw the accident. Bennon denied ever making these statements to Smith or Wesolek. Counsel also specifically recalled Juska in order to ask him these same questions. He also denied ever making them. The stipulation entered into between the parties establishes that both Smith and Wesolek would have testified that Bennon and Juska told them, in effect, that they had not seen the accident. The stipulation also demonstrates that both Smith and Wesolek had concluded that both victims were front seat passengers. The record shows, however, that defense counsel had not subpoenaed either Smith or Wesolek and was relying upon the State to make these witnesses available when the defense presented its case. Wesolek was not in court and the record is unclear as to whether Smith was available. Nonetheless, the defense never called Smith or Wesolek and instead stipulated to their testimony.

Finally, the morning after the State rested and immediately preceding the presentation of defendant’s case, the State tendered seven police reports to defendant. One of the reports was made by an Officer Hanson who had interviewed both Bennon and Juska after the accident. His report was consistent with the reports of Smith and Wesolek and contradicted Bennon’s and Juska’s assertions that they saw the accident and that defendant was driving. Defense counsel made the trial judge aware of these new developments, but refused to request a remedy. He stated that he was “bringing] it up solely because it is important that I bring it up now,” but that he was sure that the prosecutor’s nondisclosure was not willful and that he did not want any remedy. Instead, counsel agreed with the State to stipulate to Hanson’s testimony “so as to not delay this trial in any form.” After stipulating to the testimony of Smith, Wesolek, and Hanson, defendant got on the stand and denied driving the Plymouth when it crashed. The defense then rested. The stipulation was entered into the record, the morning after the State had rested, just before the defense put on the defendant as their one and only witness and after the jury had been waiting at least one hour for the proceedings to begin.

We cannot imagine any trial strategy which would protect counsel’s actions in this case. Counsel failed to call a witness who, in opening statement, he told the jury would corroborate the defendant’s claim that he was not driving at the time of the accident. He cross-examined the police officer eyewitnesses by asking them whether they had ever made statements to Smith or Wesolek which contradicted their trial testimony. The officers denied ever making the contradictory statements. Additionally, after investigating the accident, traffic accident specialists Smith and Wesolek concluded that both victims were front seat passengers. Yet, counsel never called or even subpoenaed Wesolek or Smith. Moreover, at trial he discovered that Bennon and Juska also had made these contradictory statements to Hanson. Despite persistent hinting and prodding by the trial judge, counsel failed to seek any remedy for this violation of discovery.

The State clearly and concisely set forth its case against defendant with the pivotal testimony of Bennon and Juska, who allegedly were the sole eyewitnesses to what transpired; the police reports reveal, however, that they perhaps witnessed nothing. Defense counsel was aware of three witnesses whose testimony could completely impeach Bennon and Juska; yet, counsel did not call any of these officers as witnesses. Instead of calling these witnesses, he stipulated to their testimony in what takes up all of 21k pages of transcript. He was aware of both Smith and Wesolek prior to trial, yet neither was under subpoena. He was informed of Hanson’s existence during trial, yet did not request a continuance to locate Hanson and bring him in to testify. He also did not ask that Bennon and Juska be recalled to further impeach them with Hanson’s report. At a minimum, counsel should have asked for a mistrial.

A stipulation is a “time-saving” device used to admit necessary, but foundational or peripheral evidence which both parties to the litigation concede the truth of and which, obviously, is not a point of contention between the parties. A stipulation is no match for in-court live impeachment and is not properly used for that purpose. A reasonable standard of representation dictates that defense counsel subject the State’s case to “meaningful adversarial testing” and that these officers be confronted with their prior, inconsistent statements before the eyes of the trier of fact.

Our learned colleague believes that, in effect, we are second-guessing defense counsel’s trial strategy. However, we cannot agree that failure to recall Bennon and Juska to cross-examine them about Hanson’s report and failure to call even one of the three officers defense counsel was aware of whose testimony would contradict Bennon and Juska was “trial strategy.” Although we recognize that there is a “strong presumption” that counsel’s actions were part of a valid trial strategy and that “[e]ven the best criminal defense attorneys would not defend a particular client in the same way” (Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065), we are confident that no competent attorney would have defended his client in this manner. In today’s overcrowded courtrooms, saving time is a valid concern in criminal trials; however, we believe that counsel’s concern for an expeditious proceeding goes too far when, other than putting the defendant on the stand to deny his guilt, counsel presents defendant’s entire defense through stipulation.

Regarding the prejudice factor under Strickland, we believe that counsel’s failure to exact full mileage from the impeaching police reports seriously undermined the adversarial process “that our system counts on to produce just results.” (Strickland, 466 U.S. at 696, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069.) A verdict of guilt should be determined by a jury only after the complete truth has been presented to it in a meaningfully adversarial proceeding. As the case stands now, the jury was presented with the well-polished and well-rehearsed testimony of two uniformed officers testifying 21k years after the accident. The police reports of at least three other officers illustrate, however, that within hours after the event both Bennon and Juska made statements in direct opposition to their trial testimony. In the absence of Bennon’s and Juska’s testimony, there is no direct evidence that places defendant in the driver’s seat of the Plymouth.

Under the circumstances of this case, we conclude that reading the cold facts from the police reports into the record as a stipulation the day after the State rested and just before defendant put on his defense was no substitute for live, in-court impeachment of the police officers who, in effect, were the State’s only “eyewitnesses” to the accident. We find the statements in the reports to be completely impeaching, or so much so that there is a reasonable probability that a different verdict may have been rendered. Accordingly, we reverse defendant’s convictions and remand this cause for a new trial. In light of the fact that we have granted defendant a new trial, we need not address defendant’s second contention on appeal which asserted that he was prejudiced by the State’s failure to tender the police reports until after the prosecutor had presented his case.

For the foregoing reasons, the convictions of the circuit court of Cook County are reversed and the cause is remanded for a new trial.

Reversed and remanded.

CAMPBELL, J., concurs.

PRESIDING JUSTICE MANNING,

dissenting:

The majority has chosen to sua sponte raise and rule upon the issue of whether or not the defendant received the effective assistance of counsel at trial. While I certainly support the court’s obligation and right to sua sponte raise issues, especially in criminal cases, where the ends of justice so demand, I disagree that the instant case is an appropriate one to do so because of the factual matrix.

As is shown in the majority opinion, defense counsel chose to stipulate to the contents of police reports which contained contradictory information to that of the trial testimony of the two sole eyewitnesses. As the majority so aptly points out, “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 980 L. Ed. 2d at 692-93,104 S. Ct. at 2064.

Our supreme court has stated that effective assistance of counsel refers to competent, not perfect, representation, and that mistakes in trial strategy, or tactics, or judgment do not of themselves render representation ineffective. (People v. Stewart (1984), 104 Ill. 2d 463, 491-92, 473 N.E.2d 1227, 1240.) In the instant case, trial counsel’s maneuver could have been an attempt to place the inconsistent reports before the jury without giving the witnesses an opportunity to offer an explanation for the inconsistency. We must look to the totality of trial counsel’s performance in determining ineffectivéness claims. (People v. Mitchell (1984), 105 Ill. 2d 1, 473 N.E.2d 1270; Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.) Defense counsel set forth a defense, challenged the credibility and perceptions of the People’s witnesses, and performed in a generally reasonable and competent manner.

The majority has set forth a strategy which perhaps it, as well as many criminal lawyers, may have followed. That, however, is not the standard. The jurors, contrary to the majority’s statement, were fully apprised that these uniformed officers had made contradictory statements. They were fully apprised because the State entered into a stipulation with defense attorney and the stipulation, setting forth the contradictory statements, was read aloud, in open court to the jurors. The triers of fact, notwithstanding the contradictions, and in full compliance with their duty as jurors, weighed all of the evidence including the physical evidence relating to the damage to defendant’s car, injuries to the victims’ bodies, and the scrape marks on the concrete wall, and decided adversely to the defendant. We must assume that the jury considered the impeachment, but nevertheless decided credibility in favor of the State. I am not convinced that the defense counsel’s failure to recall the officers to cross-examine them was not trial strategy.

Additionally, I am not convinced that, assuming the failure was error, the outcome would have differed in light of the totality of the evidence presented by the State.

Accordingly, I would affirm.

       The court at oral argument sua sponte raised a question regarding the performance of counsel at trial. Both sides responded and were subsequently granted leave to file supplemental briefs addressing the issue of ineffective assistance of counsel.


author: JUSTICE DiVITO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANK GOMEZ, Defendant-Appellant.
    First District (2nd Division)
    No. 1—91—1804
    Opinion filed May 25, 1993.
    Michael J. Pelletier and Gordon H. Berry, both of State Appellate Defender’s Office, of Chicago, for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Theodore F. Burtzos, Susan Schierl, and Hareena Meghani-Wakely, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DiVITO

delivered the opinion of the court:

Following a bench trial, defendant Frank Gomez was convicted of possession of a stolen motor vehicle and sentenced as a Class X offender to 10 years in the custody of the Department of Corrections. On appeal, he challenges only his sentence, contending that the circuit court improperly considered his prior arrests in aggravation and that the sentence was the result of an improper double enhancement.

The following evidence was adduced at trial. On June 2, 1990, at approximately 5 a.m., Laura Mendez and her sister-in-law, Lillian Castro, arrived at their home at 3637 West Fullerton in Chicago with Mendez’s boyfriend, Alberto Torres. As Torres parked the car in the lot behind the building, Mendez saw a “beat up” Buick automobile pull into the driveway and park in the lot. When defendant exited the vehicle and began walking alongside them toward the front of the building, Mendez noticed that he was wearing white shorts, a white sleeveless tee-shirt, and a black pouch around his waist.

After they reached the front of the building, Castro went upstairs, while Mendez and Torres sat in the front hall. A few minutes later, Mendez heard a scream. When she went upstairs to investigate, Castro told her that someone had tried to steal her car from the back lot. Mendez looked out the rear window but saw no one there. She then went to the front of the building, where she saw defendant running across the street. When she checked her car, she found a screwdriver lying on the floor and discovered that the ignition had been damaged. She then went upstairs to her apartment and called the police.

When the police arrived, Mendez told them what had happened and described the man as Hispanic, about 5 feet 9 inches tall, with dark, slicked-back hair, and wearing a white tee-shirt, white shorts, and a black pouch. After speaking with Torres and Castro, the officers proceeded to an area where moments earlier they had seen a person who matched the given description run across the street in front of their parked squad car. Approximately two blocks from where they had seen him earlier, the officers found defendant walking down the street. They handcuffed him, placed him in the back of their car, and returned to Mendez’s building, where Mendez, Torres, and Castro each identified him as the person they had seen.

When they inspected the car that defendant had parked in the lot behind the building, the officers found that it had been “completely destroyed.” All the seats were removed, and a milk crate had been placed on the floor as a driver’s seat. The radio and the ignition were missing, and the dash was ripped apart. The car’s exterior was covered with spray paint, and the windows were either broken or rolled down. After the officers checked the license plate number and learned that the car had been stolen, they charged defendant with possession of a stolen vehicle.

As previously indicated, the circuit court found defendant guilty of that charge and sentenced him to 10 years’ imprisonment as a Class X offender.

On appeal, defendant contends that the circuit court improperly considered the “bare arrests” which appeared on his criminal history sheet without any proof of underlying criminal conduct. He also contends that his sentence was the result of an impermissible double enhancement. The State maintains that defendant has waived any challenge to the propriety of his sentence because he failed to file a motion to reduce sentence within 30 days after it was imposed pursuant to section 5—8—1(c) of the Unified Code of Corrections. (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—1(c).) We agree with the State.

The record reflects that defendant neither objected during the sentencing hearing nor filed a motion to reduce his sentence pursuant to section 5 — 8 — 1(c). The failure to file such a motion has been held to constitute a waiver of sentencing issues on appeal because it denies the circuit court the opportunity to correct any error that may have occurred and instead burdens the appellate court with the processing of potentially needless appeals. (People v. Macke (1992), 224 Ill. App. 3d 815, 816, 587 N.E.2d 1113; see also People v. Lewis (1992), 235 Ill. App. 3d 1003, 1005-06, 602 N.E.2d 492, appeal granted (1993), 148 Ill. 2d 649 (applying Macke and dismissing the appeal); People v. Pfister (1993), 240 Ill. App. 3d 931, 934, 608 N.E.2d 1230 (reaffirming Macke).) The Macke court recognized that a motion to reduce sentence is the functional equivalent of a post-trial motion which is necessary to preserve issues for appeal. (Macke, 224 Ill. App. 3d at 816.) We agree with the Macke court and therefore adopt its rationale as our own.

We believe that a rule requiring such a motion does not offend a defendant’s rights in any manner and is consistent with the well-established requirement that a contemporaneous objection is necessary to make a proper record concerning alleged error. (See People v. Williams (1992), 149 Ill. 2d 467, 493, 599 N.E.2d 913 (holding that any claimed deficiency or inaccuracy in the presentence report must be brought to the attention of the sentencing court or will be considered waived); People v. Murray (1990), 201 Ill. App. 3d 573, 580, 559 N.E.2d 174, appeal denied (1990), 135 Ill. 2d 563, 564 N.E.2d 844 (finding waiver where defendant never objected to the court’s consideration of death as an aggravating factor in sentencing); People v. Craddock (1987), 163 Ill. App. 3d 1039, 1048, 516 N.E.2d 1357, appeal denied (1988), 119 Ill. 2d 562, 522 N.E.2d 1249 (holding that the defendant waived the issue of whether the court improperly considered the presence of weapons in aggravation by failing to object at the sentencing hearing).) Furthermore, it is also well established that a written motion is a necessary precondition to the preservation of an issue for appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 186-87, 522 N.E.2d 1124, cert, denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274; see also People v. Wallace (1991), 143 Ill. 2d 59, 60-61, 570 N.E.2d 334 (holding that a motion to reconsider is a prerequisite to an appeal of a sentence imposed pursuant to a guilty plea); People v. Wilk (1988), 124 Ill. 2d 93, 110, 529 N.E.2d 218 (same).) We believe that a written motion pursuant to section 5 — 8 — 1(c) serves the same important goal of promoting “judicial economy and finality of judgments” (Enoch, 122 Ill. 2d at 190) by highlighting any alleged error for the circuit court and granting it the “opportunity to [review] the appropriateness of the sentence imposed and to correct [any] errors made.” (Wilk, 124 Ill. 2d at 110.) In the absence of such a motion, a reviewing court must strain its limited resources combing the record looking for guidance where none may exist. In contrast, requiring a defendant to file such a motion would eliminate much of this needless waste by developing a focused record in the circuit court.

Mindful, however, of the division within the appellate court on this issue (see People v. Turner (1992), 233 Ill. App. 3d 449, 456, 599 N.E.2d 104 (expressly rejecting Macke and holding that a motion to reduce sentence is not a necessary precondition to appellate review of that sentence); People v. Sims (1992), 233 Ill. App. 3d 471, 473, 599 N.E.2d 137 (same); see also People v. Hess (1993), 241 Ill. App. 3d 276, 283 (recognizing the disagreement among the appellate districts but reaching the merits of the case on the basis of plain error)), and of the fact that the supreme court has granted leave to appeal in Lewis, we address the substance of defendant’s contentions.

At the sentencing hearing, the parties first agreed that defendant was eligible for Class X sentencing because he had been convicted of two other Class 2 felonies in the previous three years: a 1987 burglary conviction for which he received 30 months’ probation, followed by a 1988 burglary conviction for which he received four years’ imprisonment. The State then argued in aggravation that defendant’s “significant number of convictions *** during a relatively short period of time” demonstrates that he has “repeatedly gone out of his way to commit crimes.” The State alluded to defendant’s criminal record, which included a 1982 theft conviction with 30 months’ imprisonment; a 1982 attempted burglary conviction with two years’ probation, 10 days’ imprisonment, and $100 restitution; a 1983 possession of a stolen vehicle with 30 months’ imprisonment; and a 1987 theft conviction with 60 days’ imprisonment and $215 in restitution, in addition to the two burglary convictions. The State then requested the court to impose a sentence of 20 years’ imprisonment. Defense counsel argued in mitigation that the evidence in the case was closely balanced and that defendant came from a broken family and had many personal difficulties and recommended that the court impose the “absolute minimum” sentence. The court then stated:

“[THE COURT]: I review this presentence investigation and I see that you turned seventeen in *** May of 1981, and I see arrests week to week. I see you placed on probation first in February of 1982, placed on probation February 24, 1982, arrested again. Violation of probation, sent to the penitentiary. Paroled in November of ’82. I see arrested in February of ’83, March of ’83, July , of ’83, September of ’83 sent back to the penitentiary.
How old were you? About eighteen years old, second time to the penitentiary. Sent for three and a half years. You must have just been paroled when you were arrested again in ’85. May of ’86. January of ’87. February of ’87. March of ’87. On the 3rd you were arrested and sentenced to sixty days. On the 10th of March of ’87 you were arrested again for burglary.
That’s apparently the case in which at this point, and you were a young man still at that time, Judge Joyce felt if he placed you on probation and gave you an opportunity to have some kind of drug treatment that perhaps you could make some meaning out of your life. And as the presentence investigation so inartfully puts it, you were not able to complete — the treatment was interrupted because you were arrested and taken into custody.
[DEFENDANT]: I was — I was facing a supposedly drug program, but it wasn’t. It wasn’t what I was looking for. That’s where I had the problems adjusting to that type of program. All those cases were because I had a serious drug problem in those days.
[THE COURT]: Must have been a serious problem. In ’88, March of '88, charge of burglary, four years in the penitentiary.
Now my math is not always that great, but it seems to me that when you were arrested in June you must have just gotten out. You’re a young man and you have spent most of your life institutionalized.
As the State has argued, we have offered you court services on a number of times in an attempt to say to you something has got to change in your life, but apparently that wasn’t enough, and you have been sent to the penitentiary for more than the minimum number of times. Apparently that’s not enough. Parole system is not enough.
The only thing that I think is left to be able to protect the citizens of the City of Chicago is to keep you out of the City of Chicago and to keep you in the Department of Corrections. That seems to be the only way that we can protect the people here. I think the question of rehabilitation appears to have been long gone and lost with you.
I’m just — it’s really sad to see someone like you, who from the second you became an adult, that’s been nothing except lived in and out of the court system and the penitentiary system.
However we’re dealing with one charge possession of a stolen motor vehicle, and as I recall the facts in this case the car had been previously stripped and there was very little left of this car, and it was certainly, I’m sure it was a great inconvenience to the owner of the car, but in the great continuum of wrongdoing somehow it seems to me that a twenty year sentence, which would be more typical for. a murder case, would not be appropriate.
The legislature is very wise to allow extended sentencing in a case such as this with a background such as this, and certainly this case calls for a range of a Class X sentence, but given all these facts, I’m going to sentence you to ten years in the Illinois Department of Corrections.”

Defendant first contends that the court improperly considered his “bare arrests” when determining the appropriate sentence. Although arrests not resulting in convictions normally may not be considered in determining the appropriate length of a sentence to be imposed (People v. Brown (1982), 103 Ill. App. 3d 306, 310, 431 N.E.2d 43), a sentencing court may consider evidence of criminal conduct for which no prosecution or conviction ensued, provided that evidence is both relevant and reliable. (People v. Richardson (1988), 123 Ill. 2d 322, 361, 528 N.E.2d 612, cert, denied (1989), 489 U.S. 1100, 103 L. Ed. 2d 943, 109 S. Ct. 1577; People v. La Pointe (1981), 88 Ill. 2d 482, 499, 431 N.E.2d 344:) When no supporting evidence is provided to establish its reliability, however, the consideration of a mere arrest constitutes prejudicial error and the sentence will be vacated (People v. Wallace (1986), 145 Ill. App. 3d 247, 258, 495 N.E.2d 665; People v. Thomas (1983), 111 Ill. App. 3d 451, 454, 444 N.E.2d 288), unless the record demonstrates that the weight placed on the improper factor by the court was insignificant. People v. Bourke (1983), 96 Ill. 2d 327, 332-33, 449 N.E.2d 1338 (affirming a sentence even though the sentencing court mentioned “in passing” three improper aggravating factors).

Here, rather than demonstrating reliance on defendant’s prior arrests, the record indicates that the circuit court merely mentioned them while considering his criminal history. Although it would have been preferable for the court to affirmatively state that it was not relying on those arrests (see Richardson, 123 Ill. 2d at 362 (noting that because the sentencing court “repeatedly emphasized” that it was relying only on those offenses for which the defendant had been convicted, any error in admitting evidence of the other offenses was harmless)), we presume that the circuit court knew the law and applied it correctly. (People v. Kluxdal (1991), 225 Ill. App. 3d 217, 223, 586 N.E.2d 701, appeal denied (1992), 144 Ill. 2d 639, 591 N.E.2d 27.) For that reason, and because we find no. record support to the contrary, we conclude that the length of defendant’s sentence was not increased as a result of the court’s reliance on mere arrests.

Defendant also contends that his sentence was the result of an improper “double enhancement” when the circuit court considered in aggravation the same two convictions that established his eligibility for Class X sentencing. We disagree.

Although there is authority that a sentencing court may not consider in aggravation the same prior convictions that enhance a defendant’s offense (People v. Owens (1990), 205 Ill. App. 3d 43, 563 N.E.2d 75), that did not occur here. The mere fact that defendant’s sentence was enhanced to a Class X status because of recidivism does not automatically entitle him to a near-minimum sentence. (People v. Harvey (1987), 162 Ill. App. 3d 468, 475, 515 N.E.2d 337, appeal denied (1988), 118 Ill. 2d 547, 520 N.E.2d 389 (noting that the court could impose a more severe sentence on a defendant who had four prior convictions than on a defendant who had only two).) Here, defendant’s sentence was within the Class X range and it was proper because he had four other prior convictions in addition to the two which established his eligibility as a Class X offender. (See People v. Govan (1988), 169 Ill. App. 3d 329, 341, 523 N.E.2d 581, appeal denied (1988), 122 Ill. 2d 584, 530 N.E.2d 255 (affirming a sentence where the defendant had two other convictions which could be considered by the court).) Because the circuit court could properly rely on the other convictions to determine that a 10-year sentence was appropriate, defendant’s sentence plainly was not the result of an impermissible double enhancement.

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

Affirmed.

McCORMICK, P.J., and HARTMAN, J., concur.