text:
    ROBERT DeYOUNG et al., Special Adm’rs of the Estate of Mildred DeYoung, Deceased, et al., Plaintiffs-Appellees, v. ALPHA CONSTRUCTION COMPANY, Defendant-Appellant and Cross-Plaintiff-Appellant (Northern Illinois Gas Company, Defendant and Cross-Defendant-Appellee).
    First District (2nd Division)
    No. 1—88—2976
    Opinion filed July 25, 1989.

      French, Rogers, Kezelis & Kominiarek, P.C., of Chicago (Algimantas Kezelis, Russell P. Veldenz, and Terence R. Selby, of counsel), for appellant.
    Thomas J. Shanahan, of Chicago, for appellee Northern Illinois Gas Company.
    Corboy & Demetrio, P.C., of Chicago (Philip H. Corboy, Thomas A. Demetrio, and Bruce Robert Pfaff, of counsel), for other appellees.
   JUSTICE SCARIANO

delivered the opinion of the court:

In this action Virginia Cockerham sued for her injuries and the estate of Mildred DeYoung sued for her death and for property damage as a result of an explosion occurring at the DeYoung home. In turn, Alpha Construction Company (Alpha) filed a contribution claim against Northern Illinois Gas Company (NIGas). The jury returned a verdict for plaintiffs, awarding them $4,224,694.89, and found Alpha 100% liable. Alpha appeals, raising the following issues: (1) whether the jury verdict is against the manifest weight of the evidence; (2) whether the trial court erred in making certain evidentiary rulings; (3) whether Martin DeYoung’s sobs during trial denied Alpha a fair trial; (4) whether NIGas’ counsel’s statements during closing argument denied Alpha a fair trial; and (5) whether the jury was properly instructed.

On March 13, 1986, Alpha, pursuant to its contract with the State of Illinois, was installing new water main lines along U.S. Route 30, also known as 14th Street, in Chicago Heights, Illinois. Route 30 is an east-west thoroughfare, and the DeYoung home, located at 204 West 14th Street, is on the south side of the highway. Prior to March 13, 1986, a NIGas employee had come to the site of the proposed trenches and located underground gas service lines that would cross the trench, marking the surface of the road with a yellow strip of paint. Many of the houses along Route 30 had two gas service lines: a “live” or new gas line and an old line which no longer had any gas running through it.

The Alpha crew began digging a trench one block east of the driveway at 204 West 14th Street and worked in a westerly direction, using a backhoe. As they approached the yellow strip in front of the DeYoung house, but while still east of that line, they found a gas service line. In accordance with its contract with the State, Alpha was required to “hand dig” when digging in proximity to underground gas service lines; however, because frost and asphalt formed the surface of the road, they used a backhoe to “scratch” the surface, and then dug down to 21k to 3 feet to locate the service line. After exposing the first line, the backhoe then “scratched” the surface IV2 to 3V2 feet west of the first line, and, in so doing, snagged and bent another gas line. This second gas service line, which lay directly beneath the painted strip, was the live line to the DeYoung house. Alpha’s foreman, Gerald Fin-nan, testified that the gas line was 18 to 20 inches below the surface of the road; however, a NIGas employee testified that the line was 30 to 32 inches deep.

Finnan immediately contacted the Alpha office at 7:35 a.m., giving the location as “Route 30 and Garden,” an intersection one half block or approximately 130 feet from the location of the bent service line. The Alpha office contacted NIGas at 7:37 a.m., while Alpha’s crew continued digging the trench around the bent service line, breaking the water service line and the old gas service line.

The first NIGas crew to arrive at the scene had learned of the problem through the 7:37 a.m. phone call from Alpha, at which time they were told that it was a damaged main line instead of a damaged service line. They arrived at the scene at 7:48 a.m., but, because there was no one to direct them, they first walked to the north side of Route 30 and had to wait for heavy traffic to pass before crossing back to the south side of the street. Two NIGas crew members were walking toward the DeYoung house to turn off the gas and to warn its occupants when the house exploded. Mildred DeYoung was killed and her daughter, Virginia Cockerham, was injured in the explosion and subsequent fire.

The State Fire Marshal testified that it was his determination that the gas pipe had separated at a compression fitting approximately 30 inches from the DeYoungs’ gas meter, that gas had consequently flowed out from the pipe underground and had seeped into the foundation of the house and ignited, and that the explosion occurred in the basement. The Fire Marshal also stated that a furnace or hot water heater may have been the source of ignition, although, in his opinion, it was most likely a sump pump; however, Martin DeYoung testified that there was no sump pump.

The jury returned a verdict for plaintiff, and, on Alpha’s contribution claim against NIGas, assessed 100% of the damages against Alpha. The jury awarded $97,663 in property damage, $533,032 to Virginia Cockerham, and $3,600,000 to Mildred DeYoung’s husband and children. The trial judge denied Alpha’s post-trial motion, and this appeal followed.

Alpha first argues that the jury’s verdict as to liability was against the manifest weight of the evidence and that the damage award is “highly excessive and must shock the conscience of the court.”

Plaintiffs claimed that Alpha was negligent in:

(a) failing to “hand dig” in the vicinity of a marked, live gas line;

(b) failing to properly ascertain the location of the live gas service line before excavating with a backhoe;

(c) failing to require “hand digging” when excavating work was being done in proximity to a marked, live gas service line;

(d) striking and causing a leak in the live gas service line to the DeYoung house; and

(e) failing to warn the occupants of the DeYoung house of the existence of a gas leak prior to the explosion.

Alpha maintains that it acted reasonably in assuming that the first service line it found was live and in hand digging around that line, and asserts that it “cannot be considered negligent in failing to ascertain the location of the live gas line inasmuch as [it] had already found one line and the crew was looking for the other one with the best possible means available.” It claims that the service line was 22 inches below the surface, that frost extended 18 inches beneath the four-inch black top, that it could not hand dig in the area of frost, and that it could not avoid hitting the service line; therefore, it asserts, its actions were not negligent. Alpha adds that after hitting the service line it acted reasonably in contacting NIGas and, it maintains, its instructions (from NIGas?) in a situation such as this were to turn the matter over to NIGas and do nothing further; thus, it claims, it acted properly in not warning the occupants of the house. It further argues that plaintiffs raised the issue of failure to warn against NIGas, the jury found in favor of NIGas, and thus “implicitly found that no one breached any duty to the plaintiffs on the failure to warn.”

Alpha also contends that the trial court erred in directing a verdict in favor of plaintiff on the issue of proximate cause, arguing that plaintiffs failed to establish the source of ignition or how the gas entered the house. In granting the directed verdict, Alpha argues, the trial court improperly judged the credibility of witnesses and drew inferences in favor of plaintiffs. Alpha claims that there was evidence under which a jury could conclude that it was not negligent, but the court’s ruling precluded the jury from making such a finding. It further asserts that the judge’s ruling may have confused the jury, because they did consider proximate cause as to NIGas.

Plaintiffs respond that the jury’s verdict was not against the manifest weight of the evidence, “manifest” meaning “clearly evident, clear, plain, or undisputable.” (Thomas v. Le Burkian (1973), 10 Ill. App. 3d 742, 744, 295 N.E.2d 313.) They note that Alpha did not deny that it failed to hand dig in proximity to the live gas service line; it did not deny that it struck and damaged the gas service line; and it did not deny that it failed to warn the occupants of the house of the gas leak. Plaintiffs further maintain that the trial court properly found as a matter of law that Alpha’s conduct was the proximate cause of their damages. They argue that the only dispute is over the source of ignition, a dispute the trial judge deemed “immaterial,” stating “[t]here is no other possible proximate cause of the explosion if there is negligence.” Plaintiffs assert that the danger was caused by the gas leak, not the appliances in the basement; thus, Alpha’s causing the leak was the proximate cause of the explosion.

We encounter no obstacle in holding that the verdict of the jury was not against the manifest weight of the evidence. There is no dispute that gas escaping from the snagged and bent service line is what caused the explosion, regardless of the source of ignition; nor is there any question but that it was Alpha that was responsible for snagging and bending that line. The issue in this case is whether Alpha was negligent in hitting the service line and whether it, as well as NIGas, was negligent in failing to prevent the explosion of the DeYoung house and in failing to warn its occupants. In directing a verdict on proximate cause, the trial judge in no way precluded the jury from finding that Alpha was not liable, because he left the question of negligence for the jury to decide, and there is ample evidence to support the jury’s verdict that Alpha was indeed negligent. Alpha did not hand dig as required and it blithely disregarded the fact that although it had found a gas line east of the yellow strip in front of the DeYoung house, there was a strong probability that another line lay under the strip. Moreover, Alpha made no attempt to notify the DeYoungs that their service line had been damaged. With regard to Alpha’s claim for contribution against NIGas, we note that NIGas was not given a proper address and no one from Alpha directed NIGas to the location of the snagged and bent line; instead, NIGas was forced to guess where the impact had occurred. Here again, there was evidence to support the jury’s conclusion that Alpha was responsible for the additional yet unnecessary time it took for NIGas to find the service line.

Defendant next argues that the jury’s award of $4,224,695 “is against the manifest weight of the evidence”; however, in reviewing a jury award the test is whether the verdict is excessive, that is, “whether the total amount of the verdict falls within the necessarily flexible limits of fair and reasonable compensation or is so large as to shock the judicial conscience.” King v. City of Chicago (1978), 66 Ill. App. 3d 356, 359, 384 N.E.2d 22.

Defendant claims that the court erred in asking the jury during voir dire whether they would be willing to award a verdict “in the millions.” It asserts that this was an “attempt to indoctrinate the jury or elicit a pledge from them.” Plaintiffs correctly respond that the trial judge has discretion in determining what questions to pose to the jury and that it is proper to inquire whether potential jurors have fixed ideas about awards of specific sums of money. Kinsey v. Kolber (1982), 103 Ill. App. 3d 933, 431 N.E.2d 1316.

In Kinsey, the appellate court held that an inquiry whether venire members would have trouble awarding $2 million if the law and evidence supported it was proper.

“Defendant urges that this remark supports the indoctrination purpose of the questions asked during voir dire. In advancing this argument defendant is asking this court to overrule Scully v. Otis Elevator Co. (1971), 2 Ill. App. 3d 185, 275 N.E.2d 905, Jines v. Greyhound Corp. (1964), 46 Ill. App. 2d 364, 197 N.E.2d 58, rev’d on other grounds (1965), 33 Ill. 2d 83, 210 N.E.2d 562, and Murphy v. Lindahl (1960), 24 Ill. App. 2d 461, 165 N.E.2d 340, all cases where the court held that questions concerning a specific verdict amount tended to uncover jurors who might have bias or prejudice against large verdicts.” (103 Ill. App. 3d at 946.)

In Scully, the court held that questions designed to expose any latent prejudice of jurors against large verdicts were proper. Scully v. Otis Elevator Co. (1971), 2 Ill. App. 3d 185,198, 275 N.E.2d 905.

Defendant also complains that the jury’s verdict is a result of bias or prejudice and reflects a lack of deliberation. It notes that the jury began deliberations at 12:45 p.m. and returned a verdict by 2:45 p.m. of the same day. The jury awarded $97,663 for property damage; defendant argues, however, that the parties stipulated to property damage of $92,663 plus a $3,000 claim for Martin DeYoung’s car. Defendant contends that the jury erred in awarding $2,000 more “than what everyone agreed would be the correct amount.” Defendant also claims that the jury erred in awarding Virginia Cockerham $200,000 more than she requested for pain and suffering, and that, given the deceased’s age, 75 years old, the $3,600,000 awarded to the 10 DeYoung children and Martin DeYoung for loss of her society is “totally irrational and puts the entire judicial system at risk.” It maintains that the award of damages to each of the children is improper, because only two of them testified and thus there was no evidence that the other children suffered a loss.

In denying defendant’s post-trial motion, the trial judge stated:

“[The jurors] were very careful and deliberate in their attention to the offerings of evidence, to the remarks of counsel, to the rules of the court, and to all the goings-on in the trial.
I think they made an excellent effort to try to obey all the orders of this court, to follow the rules of this court and to really immerse themselves into their office of jurors, to really absorb what was going on. I am asked to substitute my judgment for theirs.
I’m no better than those twelve. I can’t put a value on this case better than they. If I were to grant a new trial on damages only, what would I be doing? Would I be saying that it’s possible that you can get a better group of twelve? I don’t know. Is it possible to get a worse group of twelve? I don’t know. But we had those twelve, and they certainly satisfied me, they convinced me that they were responsive to the evidence and that’s all I have to be aware of. If I am convinced as I am that these twelve people were, in fact, responsive to the evidence and their efforts ruled [sic] in that verdict even though it be in the millions then who am I to set that verdict aside, why am I better than twelve of them, I am not.”

With regard to the property damage claim, plaintiffs note that there was evidence that a driveway, previously installed at a cost of $1,300, and a tool shed costing $700 were destroyed in the explosion, and that neither of these items was included in the stipulation. Therefore, plaintiffs contend, the evidence supported the jury’s award of $97,663.

Plaintiffs emphasize that Virginia Cockerham requested $300,000 “as a minimum” for her noneconomic damages; thus the jury’s award of $500,000 for this element of damages was not more than she requested. They also maintain that the $500,000 award is supported by the evidence. There was testimony that as a result of the explosion, Virginia was thrown 75 feet out of her home and into a neighbor’s yard and that the whole left side of her body was bruised and that it ached, debris was embedded in her left hand, three teeth were fractured and her mouth, lips and chin required stitches. Virginia and her father moved in with Virginia’s brother and sister-in-law after the explosion, and there was testimony that Virginia did not sleep at night, that occasionally she would burst out crying and “look lost,” that she did not want to leave the house, that she is nervous and had been diagnosed as suffering from post-traumatic stress disorder. She was treated for three months by a clinical psychologist, who testified that Virginia’s condition has improved, but that she is not cured.

On the wrongful death claim, plaintiffs assert that there was evidence regarding the closeness of the DeYoung family, especially between Mildred and Martin DeYoung, her husband of 57 years. There was also testimony on the effect Mildred’s death has had on Martin. Plaintiffs also contend that it was unnecessary for each child to testify to his or her loss, because the law presumes that each lineal next of kin has suffered some substantial pecuniary loss as a result of a death (Flynn v. Vancil (1968), 41 Ill. 2d 236, 242 N.E.2d 237), and they argue that the damage aware “represents fair and reasonable compensation for the losses suffered by [Mildred’s] husband and ten children.”

The award of damages is a matter for the jury’s determination (Dooley v. Darling (1975), 26 Ill. App. 3d 342, 358, 324 N.E.2d 684), and a reviewing court will not substitute its judgment for that of the jury as to the sum to be awarded (Baird v. Chicago, Burlington & Quincy R.R. (1976), 63 Ill. 2d 463, 472-73, 349 N.E.2d 413) unless the verdict shocks the judicial conscience. (Northern Trust Co. v. County of Cook (1985), 135 Ill. App. 3d 329, 334, 481 N.E.2d 957.) Here, the award is large; however, there are also a large number of survivors— indeed, an uncommon number — and we cannot agree with defendant’s argument that Mildred DeYoung’s advanced age for some obscure reason diminishes the loss her survivors experience. Accordingly, based on the evidence in the case, we hold that the verdict is not so “unreasonable as to require the conclusion that the jury acted from passion or prejudice.” Dooley, 26 Ill. App. 3d at 358.

Defendant next argues that the trial court erred in making certain evidentiary rulings. First, it claims that the Fire Marshal should not have been allowed to express his opinions as to the origin of the explosion, because plaintiffs had not disclosed him as an expert pursuant to Supreme Court Rule 220, which provides that “the identity of an expert who is retained to render an opinion at trial on behalf of a party must be disclosed by that party.” 107 Ill. 2d R. 220 (b).

Plaintiffs respond that Rule 220 “obliges litigants to disclose the identity and opinions only of those witnesses who are engaged for the purpose of giving an expert opinion at trial” (Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 234, 529 N.E.2d 525); that the Fire Marshal formulated his opinions as part of his job duties; that he prepared an official report which was subpoenaed months before trial; and that his report discloses the opinions elicited at trial. They contend that Alpha was well aware of the Fire Marshal’s identity and that both Alpha and the plaintiffs disclosed the Fire Marshal as witness in discovery responses.

Plaintiffs were not required to disclose the Fire Marshal as an expert, because he was not “engaged for the purpose of giving an expert opinion at trial.” (Tzystuck, 124 Ill. 2d at 234.) Further, Alpha cannot claim surprise or prejudice, since the Fire Marshal’s opinions were included in his report, which was subpoenaed by Alpha well in advance of trial, and his trial testimony was based on that report.

Defendant also claims that the trial court erred in allowing plaintiff to admit “a purported standard concerning the use of hand digging around gas and water services lines and mains.” The exhibit at issue, an excerpt from 83 Illinois Administrative Code, section 265.45, provides as follows:

“ ‘Handdigging’ — The method employed to excavate for the exposure of existing underground facilities shall be limited to the use of hand-operated tools such as shovels, spades, picks, bars, etc., or automatically-powered hand devices designed to be held in the hand of the operator when in use. The use of automatically-powered hand tools such as air or electric-powered drills, spades, breakers, etc., shall be restricted to the breaking of existing pavement or other surface material that cannot be practically removed with common hand tools; or to the removal of frozen soil or other frozen material where the removal cannot be reasonably accomplished by the use of common hand tools.” (83 Ill. Adm. Code §265.45 (1985).)

Alpha claims that this section of the Illinois Administrative Code is applicable only to public utilities and therefore does not apply to it.

Plaintiffs respond that the exhibit was used as a definition rather than a standard and that Fred Marshall, the general manager of Alpha, stated that he considered it a reasonable definition of hand digging. The parties agree that under its contract with the State, Alpha was required to hand dig; the dispute is over what “hand digging” means. In admitting the exhibit, the trial judge stated that he would consider admitting any other definitions of hand digging “which may be applicable to any aspect of this case”; however, Alpha did not present any definitions of its own. Moreover, the judge ruled that Alpha was entitled to bring to the jury’s attention the fact that the definition is limited to public utilities. The jury was entitled to an explanation of what “hand digging” involved, and Alpha was given ample opportunity to present its own explanation or definition and did not take advantage of it; therefore, Alpha was not prejudiced by the admission of this definition into evidence and the trial judge’s ruling was correct.

Defendant next claims that a photograph which NIGas contends showed the true depth of the service line was improperly admitted. Alpha maintains that the photo is misleading, as it portrays a trench excavated from the site of the accident towards the center of Route 30, where the road becomes higher. A NIGas employee testified that he stood in the Alpha ditch and measured when the picture was taken; however, when asked whether he was standing in a ditch created after the occurrence and one that runs north toward the main line, the witness replied, “That could very well be.” The jury heard the witness testify that he believed he was standing in the Alpha ditch when the picture was taken, as well as his statement that he may not have been in the Alpha ditch, and it was for the jury to decide which statement was the more accurate one.

Alpha’s final charge regarding the court’s evidentiary rulings is that it was error for Virginia Cockerham to testify regarding the changes in her father’s sleeping habits, as well as for Virginia’s sister-in-law to testify that Virginia has lowered self-esteem and that she needed to see a psychiatrist, because neither witness is an expert. Plaintiffs respond that the witnesses were testifying to their personal observations and not to their opinions on an ultimate fact. Sleeping habits and self-esteem are not subjects requiring expert testimony; thus, the testimony at issue was properly allowed.

Defendant next argues that Martin DeYoung’s emotional outburst denied it a fair trial. While testifying, Martin began crying and the court immediately called for a recess to allow him to compose himself. During the testimony of his son, Martin once again cried. The trial judge denied defendant’s motion for a mistrial, stating “there was not an extended period of sobbing nor was there uncontrolled type sobbing. It was a sob[,] [i]t was quickly brought under control.” The judge found that the sob had not been planned or staged. Maciukevicius v. Zagorski (1988), 172 Ill. App. 3d 303, 526 N.E.2d 569, supports plaintiffs’ contention that tears are not grounds for a new trial. In that case, the plaintiff began to cry as she described the damage to her car. The appellate court upheld the trial court’s denial of a motion for a mistrial, stating:

“We disagreed that the plaintiff, who may have been flustered and nervous, broke down or lost such control that the jury would have been unduly influenced or sympathetic. *** In any event, the trial judge was in the best position to assess whether defendants’ objection had any merit. Moreover, emotional outbursts by parties to personal injury cases are not grounds for mistrial where such conduct is neither intentional nor simulated and its effect is not so prejudicial as to have indisputably affected the jury’s ability to try the case fairly.” (172 Ill. App. 3d at 308.)

(See also Biel v. Wolff (1970), 126 Ill. App. 2d 209, 217, 261 N.E.2d 474 (defendant crying).) Here, there is no indication in the record that Martin’s show of emotion was disruptive; moreover, the judge found that the sob was not intentional and that it did not prejudice the jury. Absent apparent error, that decision will not be reversed (Buckler v. Sinclair Refining Co. (1966), 68 Ill. App. 2d 283, 295, 216 N.E.2d 14), and in the instant case, we discern no error.

Defendant also claims that the jury was not properly instructed. Plaintiffs’ instruction 24(a) included as damages for Virginia Cockerham “the pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injuries.” Defendant urges that there was no evidence that Virginia would continue to suffer physical injury problems in the future.

Plaintiffs reply that there was testimony that Virginia would probably need dental implants and that although she has improved, she is not cured of her post-traumatic stress disorder and that she still manifests symptoms of that disorder. Therefore, plaintiffs maintain, the instruction at issue was properly given.

Defendant also contends that plaintiffs’ instruction 26(a) is argumentative and “an adversarial statement highlighting plaintiffs’ case with partisan tones.” The instruction modifies Illinois Pattern Jury Instructions, Civil, No. 31.04 (2d ed. 1971) (IPI Civil 2d) by adding the following: “pecuniary loss includes loss of society.” It also informs the jury that they may consider evidence concerning the marital relationship between Mildred and Martin, the relationship between Mildred and each of her children, as well as “[wjhat instruction, moral training, and superintendence of education the decedent might reasonably have been expected to give [her children] had [she] lived.”

Plaintiffs respond that pursuant to Elliott v. Willis (1982), 92 Ill. 2d 530, 442 N.E.2d 163, pecuniary loss does include loss of society. They further assert that their instruction has been approved by the IPI committee for the third edition of instructions, and that instructions which have been approved by the committee, although not yet approved by the supreme court, are “sufficient to give to the jury” (Soderquist v. St. Charles Mall Associates, Ltd. (1988), 177 Ill. App. 3d 207, 222, 523 N.E.2d 903) so long as the instruction is supported by the evidence. They claim that evidence was presented as to the relationship Mildred DeYoung had with each of her children and her husband, and that, therefore, the judge did not abuse his discretion in giving the modified instruction.

Defendant also claims that the trial court erred in refusing its instruction No. 6 ( IPI Civil 2d No. 5.01), which informs the jury as to what they may infer from the failure of a party to produce a witness. It maintains that the eight children who did not testify are not entitled to any damages for loss of society, because they have not proved such loss, and that the jury was allowed to speculate that all the children suffered the same damages. In reply, plaintiffs rely on Lorenz v. Air Illinois, Inc. (1988), 168 Ill. App. 3d 1060, 522 N.E.2d 1352. In that case, defendant tendered IPI Civil 2d No. 5.01 because decedent’s children did not testify at trial. The appellate court upheld the trial court’s refusal to give that instruction, holding “there has been no showing that decedent’s children were not equally available to defendant. More importantly, given that their relationship with decedent was fully described by plaintiff, no prejudice resulted from the children’s absence at trial.” (168 Ill. App. 3d at 1068.) Plaintiffs contend that their relationship with their mother was “fully described,” and the trial judge “would probably have precluded all family members from testifying as cumulative.”

Finally, defendant claims that the trial court erred in giving plaintiffs’ instruction No. 8 (IPI Civil 2d No. 3.01), informing the jury that the credibility of a witness “may be attacked by introducing evidence that on some former occasion the witness made a statement or acted in a manner inconsistent with [his] testimony.” Plaintiffs contend that the instruction was proper, because Finnan, Alpha’s foreman, was impeached by conduct inconsistent with his testimony (regarding continued digging of the trench after hitting the gas line) and Young, an Alpha employee, was impeached with prior inconsistent statements from his deposition. They correctly contend that the trial judge has discretion in giving IPI Civil 2d No. 3.01 (Martin v. Kralis Poultry Co. (1973), 12 Ill. App. 3d 453, 464, 297 N.E.2d 610) and that there was no abuse of discretion here.

The evidence supported the instructions given; thus, we find no error in the trial judge’s instructing the jury that it could consider Virginia Cockerham’s future pain and suffering, the deceased’s relationship with her family members, and that a witness may be impeached by prior inconsistent statements. Further, the trial court properly refused to inform the jury that it could draw inferences from the failure of some of the DeYoung children to testify.

Alpha also claims that it was denied a fair trial by NIGas’ counsel’s statements during closing argument that he was proud of his client’s employees and the way that they reacted to the emergency. Although these remarks are improper, they did not “so materially prejudice” Alpha that it was denied a fair trial. Funk v. Venture Stores, Inc. (1981), 94 Ill. App. 3d 115, 418 N.E.2d 498.

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

Affirmed.

HARTMAN and DiVITO, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE FREEMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD WYATT, Defendant-Appellant.
    First District (3rd Division)
    No. 1—87—1638
    Opinion filed July 26, 1989.
    Randolph N. Stone, Public Defender, of Chicago (Hugh Stevens and Rebecca Carmen, Assistant Public Defenders, of counsel), for appellant.

      Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Kenneth T. McCurry, and Mark A. Shlifka, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

Defendant, Don F. Wyatt, appeals from a sentence entered against him after he was charged with and pleaded guilty to aggravated criminal sexual abuse. On appeal defendant contends that the trial court improperly considered the victim’s age in aggravation of the sentence and improperly refused to consider in mitigation that defendant was beaten and raped in jail, and that the four-year sentence is excessive.

For the reasons stated below, we affirm the judgment of the circuit court.

Defendant was charged by information with one count of aggravated criminal sexual abuse upon a victim under 13 years of age. (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12 — 16(c)(1).) Defendant entered a plea of guilty and waived his right to a jury or bench trial. The parties stipulated that the State would prove defendant guilty beyond a reasonable doubt. The parties also stipulated that defendant was 43 years old on the date of the incident. Further, the parties stipulated that the sworn testimony of the victim, her parents, investigating police officers, and medical personnel would show the following.

The victim would testify that on November 26, 1984, around 4:30 p.m. in Streamwood, Illinois, she went to the residence of defendant, her next-door neighbor. The victim, six years old, and her younger sister entered defendant’s home. The sister went into the kitchen. The victim walked into the hallway and upon defendant’s request entered the bedroom. Defendant asked the victim to get onto the bed and lie down, which she did. Defendant lifted her skirt and pulled down her tights and underpants. Defendant told her that “it should be wet, not dry” and placed his mouth on the victim’s vaginal area. Defendant then fondled the victim’s vaginal area with his fingers. The victim’s sister entered the bedroom, and defendant told her to stay out and close the door. Defendant then inserted his finger into the victim’s vagina and the victim told him, “Stop. It hurts.” Defendant removed his finger and helped the victim pull up her underpants and tights. Defendant then left the bedroom and told the victim not to tell anyone of the incident.

Stream wood police investigator Edward Burke would testify that he spoke to defendant in the presence of Officer Zinkel on November 27, 1984. After being advised of his Miranda rights, defendant stated that between 4 and 4:30 p.m. on November 26, 1984, he asked the victim and her sister to come into his home. While in the living room, the victim was sitting on his lap, and he began rubbing her belly “like he always does” and then placed his hand under her dress and underwear and rubbed her vaginal area. Defendant then followed the victim into the bedroom, where she stated, “It is dry, and it should be wet.” When the victim got up on the bed and lay down, she pulled down her tights and underwear. When asked why he did not stop her from doing so, defendant stated, “I really don’t know,” and began to cry. Defendant also stated, “I know I have a problem.” He stated that he did not touch the victim with his hand or mouth while in the bedroom.

Streamwood police personnel and the victim’s mother would testify that the victim was taken to the hospital late in the evening of November 27, 1984, where she was examined by Dr. Bartush and Nurse Cheryl Bogdanowski. Bartush and Bogdanowski would testify that the victim complained of sexual assault. Bartush’s examination revealed a mild bruising of the inner area of the vaginal area, for which the victim was treated.

After the stipulated testimony was admitted, a sentencing hearing was held. The State first called witnesses in aggravation of the offense. Police officer Kathleen Zinkel testified that she spoke with the victim in the victim’s home on November 27, 1984, in the presence of the victim’s mother, Detective Burke, and an assistant State’s Attorney. The victim told Zinkel that the day before, defendant invited her and her sister to come into his home. It was common for defendant to invite the children over. Her sister went into the kitchen while the victim sat on defendant’s lap in the living room. Defendant rubbed her stomach and vaginal area with his hand. Defendant then asked her to follow him into the bedroom and get on the bed. The victim’s report of the incident in the bedroom is substantially the same as set forth above as the victim’s stipulated testimony. After the incident in the bedroom, the girls walked outside and defendant called them back and said that if their mother asked about what occurred, to tell her that defendant walked in on the victim while she was going to the bathroom. Zinkel also stated that the victim demonstrated what happened by using anatomically correct dolls supplied by the police. On cross-examination, Zinkel stated that while defendant was interviewed at his home and at the police station, he offered no violence and was cooperative. Defendant also cried at one point and stated that he needed help.

The victim’s mother testified that on November 26, 1984, her husband had left on a business trip. Around 6 p.m., she was making dinner. The victim was exceptionally quiet. Defendant rang the doorbell, came in and asked if he could see the Christmas lights in the front window and asked how they were put up. The victim said nothing when defendant entered the house. Defendant took a quick look at the lights and left. The victim’s mother stated that defendant seemed very surprised to see the mother. The mother put her children to bed after dinner and got into her own bed, where her youngest daughter also lay down. The daughter asked, “[A]m I supposed to be wet?” The mother asked her to explain, and the girl stated that an incident had occurred between defendant and the victim. The mother approached the victim and questioned her regarding the incident. The mother called the police and also took the victim to the hospital.

The mother stated that defendant had moved in next door to her family four or five months earlier. Relations between the families prior to the incident were friendly, and it was not uncommon for the children to visit defendant’s home. Since the incident, the victim has had nightmares in which wolves were trying to get her. The victim would constantly watch defendant’s home and would hide from him. Prior to the incident, the victim had not complained of nightmares. Also since the incident, the victim’s teachers informed the mother that the victim would stare into space. The parents had a harder time controlling the victim, who would have temper tantrums and would be unreasonable. The victim began weekly counseling sessions in December 1984.

On cross-examination, the mother stated that the victim was a straight-A student both prior to and after the incident. The victim has been developing academically and still attends the same school she attended prior to the incident. The mother admitted that many factors contribute to a child’s development and emotional well-being. Nevertheless, she believed the incident with defendant was the cause of her daughter’s behavior changes.

Rebecca Bier testified that she is a psychiatric social worker who examined the victim on December 6, 1984. The victim was extremely bright and sensitive. In drawings Bier asked the victim to make, everything was in proportion except the people were somewhat imbalanced and were not securely on the ground. The victim included a figure of herself, which showed the upper and lower portion of the body to be imbalanced and the eyes were very black. Bier associated the blackened eyes with a trauma. Bier found no peer problems in the victim. Bier was familiar with the victim’s academic performance and with the problems reported by the victim’s teacher. Bier diagnosed the victim as having severe post-traumatic stress disorder. Bier also stated that although it is difficult to predict, the incident with defendant might affect the victim’s ability to function in intimate relationships with other males in her adolescence, and might suffer self-esteem problems. On cross-examination, Bier stated that she was not counseling the victim, but reached her diagnosis after spending three 50-minute sessions with the victim. Bier had consulted with two counselors who never met the victim.

Streamwood police investigator Edward Burke testified that he spoke to defendant on November 27, 1984, and that after giving defendant his Miranda rights, defendant related the incident as set forth above in the stipulated testimony of Officer Burke. On cross-examination, Burke stated that defendant was cooperative and cried.

In mitigation, the defense called two witnesses in addition to defendant. First, Lucy Hoyer testified that she has known defendant for more than 20 years, since she was 13 years old. Defendant was a neighbor who would listen and give advice to Hoyer when she was having problems with school, friends, and her parents. Defendant infused a morality into her life and encouraged her to take on responsibility. His influence has carried over into her life as an adult. Hoyer stated that she was divorced and that defendant has been a close friend to her children. Hoyer stated that defendant and her children have a healthy relationship.

Hoyer also stated that defendant holds three jobs and is highly regarded by his co-workers. Defendant is remorseful regarding the subject incident. Hoyer read into the record a letter sent to one of defendant’s employers commending defendant’s handling of some young shoplifters in his role as security guard. The letter is from the mother of one of the boys, who stated that defendant acted compassionately with her son, who was being talked into stealing by another young boy.

Second, Charles C. Anderson testified that he is a registered psychologist with a specialty in marriage and family and deals particularly with emotionally disturbed children and adolescents. Anderson never met the victim, her family, or defendant. He is familiar with the use of drawings as a method of observing and testing; however, children’s drawings have very poorly proven reliability and validity. Determining a relationship between placement on the page, line heaviness, and other factors to security, self-esteem, or other constructions is speculative. On the basis of a drawing test alone, Anderson stated that one cannot determine a child’s present emotional stability or esteem or predict future self-esteem. Anderson further stated that he would prefer not to be asked to make, based upon three 50-minute sessions with an individual, certain positive judgments regarding a child’s well-being and future emotional well-being.

Finally, defendant testified that he now lives in Hanover Park. He holds three jobs, including quality control inspector part-time for one company, a supervisor of quality control in a laboratory, and a part-time job as a store detective. His credibility in his employment has never been questioned. He is divorced as a result of the incident with the victim. The subject incident has “torn apart” defendant’s family, and he believes he was the cause of his father’s recent heart attack. Relations with his son, although not good soon after the incident, have since improved. Defendant has lost confidence in his judgments and has lost friends. Defendant indicated his desire to “make this wrong a right” and to express his remorse to the victim and her family. Defendant asked the court for a second chance to show that such an incident would not happen again.

On cross-examination defendant admitted that he had not had any counseling, nor had he volunteered to help victims of sexual abuse. He acknowledged that he did not call his employers to testify as character witnesses. On redirect examination, however, he stated he feared loss of employment if he confided in his employers regarding the subject incident.

At the close of the witness testimony, the prosecutor read into the record a victim impact statement signed by the victim’s father. The statement describes a friendly, trusting relationship between the victim’s family and defendant before the incident. Defendant, however, used the trust and friendship to take away the victim’s innocence. In the months following the incident, the victim was afraid to play in her backyard for fear that defendant would see her and say or do something to her. After defendant moved, the anxiousness decreased. The victim’s family has been traumatized. Defense counsel then read into the record a letter from the Poplar Creek librarian stating that the library would provide defendant an opportunity to participate in a court-ordered community service system at the library.

Counsel for the parties argued the factors in aggravation and mitigation. Defense counsel requested probation without a jail sentence. The court sentenced defendant to four years’ imprisonment to be followed by a period of mandatory supervisory leave. The court denied a motion for modification of sentence subsequently filed by defendant and argued by the parties. Defendant then appealed.

On appeal defendant initially asserts that in denying probation and imposing a four-year prison term, the trial court improperly considered the victim’s age. Further, the court improperly refused to consider that defendant was beaten and raped while in jail after his sentencing, a factor that defense counsel raised at the hearing on the motion to modify the sentence. Defendant cites section 5 — 6—1(a) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 6—1(a)), which provides that the court shall impose a sentence of probation or conditional discharge unless the court determines that imprisonment or periodic imprisonment is necessary to protect the public, or probation or conditional discharge would deprecate the seriousness of the offense and be inconsistent with the ends of justice.

Section 5 — 5—3(b) of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—3(b)) provides that appropriate dispositions for a Class 2 felony such as the offense in the instant case are the following: (1) a period of probation; (2) a term of periodic imprisonment; (3) a term of conditional discharge; (4) a term of imprisonment; (5) a fine; or (6) an order directing the defendant to make restitution to the victim. The trial court here rejected defendant’s request for probation and imposed a four-year prison term. The statutory range for a term of imprisonment for a Class 2 felony is three to seven years. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1(a)(5).) Defendant requests that this court either reduce the sentence or vacate the sentence and remand the matter for resentencing.

A reviewing court may not alter a sentence imposed by the trial court absent an abuse of discretion by the lower court, since the trial court normally is in a better position to determine an appropriate sentence. (People v. Ward (1986), 113 Ill. 2d 516, 499 N.E.2d 422, cert. denied (1987), 479 U.S. 1096, 94 L. Ed. 2d 168, 107 S. Ct. 1314.) The sentence must be based upon the particular facts of each case and depends upon many factors, including the defendant’s demeanor, credibility, general moral character, environment, habits and age. (Ward, 113 Ill. 2d at 525-26.) The sentence will not be disturbed unless it clearly appears that the penalty constitutes a great departure from the fundamental law and its spirit and purpose. The spirit and purpose of the law are upheld when a sentence reflects the seriousness of the offense and gives adequate consideration to the rehabilitative potential of the defendant. People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.

First, regarding the victim’s age, defendant asserts that the trial court considered this factor as the primary basis for denying probation and imposing a term of imprisonment. Defendant cites People v. White (1986), 114 Ill. 2d 61, 499 N.E.2d 467, which held that it was improper for the trial court to consider as an aggravating factor that the victim was a child under the age of 13 years, where a necessary element of the conviction, aggravated battery, is that the victim is less than 13 years old. (White, 114 Ill. 2d at 66-67.) Defendant asserts that, as in White, the victim’s age in the instant case was inherent in the offense and should not have been considered in aggravation.

We find that the trial court properly considered the victim’s age in considering the nature of the offense and the circumstances present in the instant case. As stated by the supreme court in People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906, a factor necessarily implicit in an offense should not be used as an aggravating factor at sentencing. (Conover, 84 Ill. 2d at 404.) Case law handed down since Conover, however, has held that Conover does not compel an inflexible construction of the rule. For instance, in People v. Tolliver (1981), 98 Ill. App. 3d 116, 424 N.E.2d 44, an appeal from an armed robbery conviction, the court held that a trial court may properly consider “the nature and circumstances of the offense, including the nature and extent of each element of the offense as committed by the defendant.” (Tolliver, 98 Ill. App. 3d at 117-18.) Tolliver stated that although the trial court could not consider that violence was used or that compensation was received, it could look to the “degree of force employed and the amount of money taken.” Tolliver, 98 Ill. App. 3d at 118.

Relying on Tolliver, the court, in People v. Hunter (1981), 101 Ill. App. 3d 692, 428 N.E.2d 666, held that the trial court, in sentencing the defendant for aggravated arson, properly considered that the defendant had endangered the lives of an entire family. The court stated that, although the threat of serious harm is a factor of the offense and therefore cannot be considered in aggravation, the court properly considered the nature and circumstances of the defendant’s conduct. (Hunter, 101 Ill. App. 3d at 694-95.) Further, People v. Brewer (1984), 127 Ill. App. 3d 306, 468 N.E.2d 1242, held that it was not error for the trial court to consider in aggravation the extreme youth of the victim when sentencing the defendant for indecent liberties with a child. Brewer, 127 Ill. App. 3d at 312, citing Hunter, 101 Ill. App. 3d 692, 428 N.E.2d 666, and Tolliver, 98 Ill. App. 3d 116, 424 N.E.2d 44.

Similarly, in the instant case it was not improper for the trial court to consider the age of the victim in sentencing. The court stated that, in sentencing, it considered in particular the nature of the crime. In mitigation, the court took into account defendant’s remorse and credibility, and the credibility of defendant’s character witness, Lucy Hoyer. In aggravation, the court stated that even though the child was six years old, the offense did not call for an extended-term sentence. The court noted the age of the victim and defendant’s age, and emphasized that it considered mainly the nature of the offense. We find no abuse of discretion by the trial court regarding its consideration of the victim’s age.

Regarding the trial court’s failure to consider in mitigation that defendant was beaten and raped in jail two weeks after the original sentencing, we also find no abuse of discretion. The incident occurred in the Cook County jail, where defendant was being held temporarily before being transferred to the penitentiary. Defense counsel raised the issue at the hearing on defendant’s motion to reconsider the sentence. On appeal defendant cites People v. Sterling (1978), 62 Ill. App. 3d 986, 379 N.E.2d 660, which held that in sentencing the defendant for a conviction of driving while intoxicated, the trial court improperly refused to consider matters relating to the defendant’s life offered in mitigation. The matters included conduct by a former attorney of the defendant who absconded with funds received from a personal injury settlement involving the defendant, and injuries received by the defendant on the day of his arrest. (Sterling, 62 Ill. App. 3d at 990.) Defendant also cites United States v. Dunn (N.D. Ill. 1984), 585 F. Supp. 1365, for the proposition that new or unforeseen developments are properly raised in a motion to reconsider a sentence.

Our research has failed to uncover a case factually on point regarding this issue. Nevertheless, in applying the abuse of discretion standard, we find that the trial court exercised sound discretion in denying defendant’s motion to reconsider the sentence. (People v. Ward (1986), 113 Ill. 2d 516, 499 N.E.2d 422, cert. denied (1987), 479 U.S. 1096, 94 L. Ed. 2d 168, 107 S. Ct. 1314.) We agree with the trial court that the incident that occurred in jail was not a proper basis for consideration on a motion to reduce the sentence imposed. The court noted that the incident in jail would be the proper subject of a separate criminal proceeding.

Defendant also contends on appeal that the sentence is excessive. Defendant requests this court on this basis to either reduce the sentence or reverse the sentence and remand this matter for re-sentencing to less than four years’ imprisonment. Defendant cites People v. Nelson (1982), 106 Ill. App. 3d 838, 436 N.E.2d 655, and People v. Gibbs (1977), 49 Ill. App. 3d 644, 364 N.E.2d 491, for the proposition that in certain cases, a reviewing court may reduce the sentence even when the sentence is within statutory limits, where the sentence is found to be clearly excessive. (Gibbs, 49 Ill. App. 3d at 648.) Defendant also questions the admissibility of the victim impact statement read into the record at the sentencing hearing.

We find, however, that the sentence was proper. Further, the victim impact statement was properly considered by the court in sentencing. Section 6 of the Bill of Rights for Victims and Witnesses of Violent Crime Act (Ill. Rev. Stat. 1985, ch. 38, par. 1406) allows the victim of a violent crime to present to the court a statement of the impact of the crime upon him. Section 5 — 4—1 (a) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 4—1(a)) provides that, except in capital cases, a crime victim may provide an impact statement and evidence in aggravation or mitigation at the sentencing hearing. (See People v. Fountain (1989), 179 Ill. App. 3d 986, 534 N.E.2d 1303.) In the instant case, the trial court considered the impact of the offense upon the victim and her family, but stated that he did not give that factor disproportionate weight. We have reviewed the record and find no abuse of discretion in the four-year sentence. People v. Crete (1986), 113 Ill. 2d 156, 497 N.E.2d 751.

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

Judgment affirmed.

WHITE and CERDA, JJ., concur.

       The notice of appeal filed in this matter indicates the defendant’s name is Donald Wyatt. The information and pleadings filed on behalf of defendant in the proceedings below and the record taken as a whole, however, indicate that the correct name of defendant is Don F. Wyatt.