author: JUSTICE McLAREN PRESIDING JUSTICE INGLIS,

text:
    CONTINENTAL BANK, N.A., et al., Plaintiffs-Appellees. v. NORMA N. HERGUTH et al., Defendants-Appellants (Harold J. Neubrand et al., Defendants-Appellees).
    Second District
    No. 2 — 92—0806
    Opinion filed July 29, 1993.
    Rehearing denied August 27, 1993.
    INGLIS, P.J., dissenting.

      James W. Hitzeman, of Sidley & Austin, of Chicago (James J. Carroll, of counsel), for appellants.
    Samuel W. Witwer, Jr., and Brian M. Waldron, both of Witwer, Burlage, Poltrock & Giampietro, and John T. Brooks, Christopher W. Zibart, Cathryn Ruggeri, and James R. Hellige, all of Hopkins & Sutter (William P. Sutter, of counsel), both of Chicago, for appellees.
    Franklin W. Nitikman and Roger W. Wenthe, both of McDermott, Will & Emery, of Chicago, for amicus curiae.

   JUSTICE McLAREN

delivered the opinion of the court:

This appeal is from an order of the circuit court of Winnebago County in an action for the construction of a trust. The trial court held that both the adopted son of one of the settlor’s grandsons (the adopted person) and the illegitimate son of that same grandson’s other adopted son (the illegitimate person) were “lawful descendants” under the trust. On appeal, the natural bom beneficiaries of the trust (the natural borns) argue first that the settlor’s actual intent was to exclude adopted and illegitimate heirs from taking under the trust. Secondly, they argue that the trial court violated constitutional mandates in its application to this case of a 1989 statute enlarging a presumption that adopteds take as natural born children unless the terms of the instrument in question manifest an opposite intent by clear and convincing evidence. Ill. Rev. Stat. 1991, ch. 110½, par. 2 — 4(f).

The trust at issue in this case was executed on January 23, 1926. At that time, all of the settlor’s children and grandchildren were natural born. The settlor reserved the right to the trust income for his life, and after his death his wife and his four children were each to receive 20% of the income. Each child’s share of income was to be paid to that child’s “lawful descendants” when the child passed away. The trust is to extinguish after the death of the last to die of the settlor’s widow, his four children and his four grandchildren alive in 1926. When the tmst terminates, the corpus is to be distributed “among the lawful descendants of the grantor *** then living, per stirpes.”

In order for the reader to understand why the trustees brought the present suit, we must give an overview of Illinois law concerning the inheritance rights of adopted persons. The Illinois adoption statute in force at the time the settlor executed his trust stated:

“A child so adopted shall be deemed, for the purposes of inheritance by such child, *** the child of the parents by adoption, the same as if he had been born to them in lawful wedlock, except that he shall not be capable of taking property expressly limited to the body or bodies of the parents by adoption, nor property from the lineal or collateral kindred of such parents by right of representation.” (Ill. Rev. Stat. 1925, ch. 4, par. 5.)

Our supreme court similarly stated in 1925:

“When provision is made in a will for the child of some person other than the testator, an adopted child is not included unless there is language in the will or circumstances surrounding the testator at the time he made the will which make it clear that the adopted child was intended to be included.” Smith v. Thomas (1925), 317 Ill. 150, 158.

Thus, at the time the settlor executed the trust, adopted persons were deemed to be excluded from inheriting from persons other than their adoptive parents unless an intent to include the adopted persons was clear. This legal pronouncement, known as the stranger-to-the-adoption rule, was statutorily modified in 1955 when the General Assembly passed a law which stated:

“For the purpose of determining the property rights of any person under any written instrument executed on or after September 1, 1955, an adopted child is deemed a natural child unless the contrary intent plainly appears by the terms thereof.” (Emphasis added.) (Ill. Rev. Stat. 1955, ch. 3, par. 165.)

At that point in time, the legal pronouncement was altered as to the inheritance rights of adopted persons, regarding the instruments executed after September 1, 1955.

Later, in 1989, the General Assembly passed legislation altering the presumption to be applied to pre-1955 instruments. The new provision of the Probate Act stated:

“After September 30, 1989, a child adopted at any time before or after that date is deemed a child born to the adopting parent for the purpose of determining the property rights of any person under any instrument executed before September 1, 1955, unless one or more of the following conditions applies:
(1) The intent to exclude such child is demonstrated by the terms of the instrument by clear and convincing evidence.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 110½, par. 2 — 4(f)(1).)

Thus, late in 1989, if an instrument executed at any time was unclear on the rights of adopteds to take under the instrument, the presumption in favor of adopteds would apply.

Following enactment of the 1989 statute, attorneys for the adopted and illegitimate persons contacted the trustees of the trust and requested that the adopted and illegitimate persons receive a share of the trust’s income. The trustees had, after the death of the adoptive parent, refused to pay the adoptive parent’s share to his adopted son and illegitimate grandson. The trustees then brought the present suit for construction of the trust to determine the rights of the adopted and illegitimate persons.

The trial court found that both the adopted and illegitimate persons were “lawful descendants” of the settlor. The nonadopted, nonillegitimate (natural borns) filed a timely appeal.

In this court, the natural borns argue: (1) the settlor’s use of the terms “lawful” and “descendents” and the trust’s provision for per stirpes distribution constitute clear proof that the settlor intended to exclude adopteds and illegitimates; (2) the trial judge erroneously applied the principles of Trimble v. Gordon (1977), 430 U.S. 762, 52 L. Ed. 2d 31, 97 S. Ct. 1459, and Reed v. Campbell (1986), 476 U.S. 852, 90 L. Ed. 2d 858, 106 S. Ct. 2234, to a situation involving testate succession; and (3) the trial court’s misapplication of the 1989 statute violates both the doctrine of separation of powers and the due process rights of the settlor and the natural borns.

The adopted and illegitimate persons claim: (1) the term “descendants” did not have a clear and uniform meaning in 1926; (2) a per stirpes distribution does not establish an intent to exclude adopteds; (3) the 1989 statute’s presumption in favor of adopteds applies; (4) the trial court correctly applied Trimble and Reed to avoid asymmetrical discrimination against adopteds and illegitimates; (5) the trial court did not violate the natural borns’ or the settlor’s constitutional rights; and (6) the term “lawful” does not exclude illegitimates.

When construing a trust or a will, a court is to give effect to the intent of the settlor or testator, if that intent is not contrary to public policy. (Harris Trust & Savings Bank v. Beach (1987), 118 Ill. 2d 1, 3.) The same rules of construction applicable to wills apply to trusts. (First National Bank v. Canton Council of Campfire Girls, Inc. (1981), 85 Ill. 2d 507, 513.) Moreover, the settlor’s intent is to be determined as of the time the trust was executed (Button v. Elmhurst National Bank (1988), 169 Ill. App. 3d 28, 40), and the settlor is presumed to have known the then-existing law concerning the disposition of. his property when he executed the trust. (Sennot v. Collet-Oser (1976), 36 Ill. App. 3d 928, 933.) When the terms used in a trust are plain and possess a clear meaning, the plain intention will prevail over a presumed intention. Northern Trust Co. v. Winona Lake School of Theology (1978), 61 Ill. App. 3d 966, 971.

RIGHTS OF ADOPTEDS

We address first the issue of adopteds’ rights to take under the trust, since if adopteds are excluded, so too are their illegitimate offspring under a per stirpes distribution. This issue turns on whether the use of the term “descendants” and the use of a per stirpes method of distribution excluded adopteds in 1926.

1. “DESCENDANTS”

The parties’ briefs make much of the court’s application of differing presumptions in deciding this issue. We believe it is helpful to set out the steps we will follow on this question:

1. The court looks at the law in effect in 1926, through the prism of the presumption in the 1989 statute, to determine if the terms were then so unambiguously defined that they provide clear and convincing proof of an intent to exclude adopteds.

2. If the terms were so clearly defined in 1926, the court applies those definitions.

3. If the terms were not so clearly defined in 1926, the court applies the presumption existing at the time of the court’s decision, i.e., the presumption in the 1989 statute.

In a series of cases involving virtually identical language and trusts, our supreme court and this court have had no difficulty in ascertaining a settlor’s actual intent. (Stewart v. Lafferty (1957), 12 Ill. 2d 224; Continental Illinois National Bank & Trust Co. v. Clancy (1959), 18 Ill. 2d 124; Ford v. Newman (1979), 77 Ill. 2d 335; Hale v. Hale (1925), 237 Ill. App. 410; Fischer v. LaFave (1989), 188 Ill. App. 3d 16, appeal denied (1990), 129 111. 2d 563.) An examination of the trust reveals that the settlor unmistakably evidenced his intent to limit the class of beneficiaries to his natural born progeny. First, he employed the term “descendants,” which in 1926 had an established legal meaning that encompassed only blood offspring. Second, he provided a method of distribution — per stirpes — which in 1926 automatically disqualified adopted persons. As in this case, when actual intent is evident, all presumptions, statutory or otherwise, are inapplicable. Here, the settlor manifested his actual intent by using terms which were clearly defined and with settled meaning to limit the class of eligible takers to his blood offspring.

“Descendants” is a word which had a definite and certain meaning under the Illinois law when the settlor created his trust in 1926. The legal meaning of descendants was first established by our supreme court in Bates v. Gillett, 36 years before the settlor executed his trust. (Bates v. Gillett (1890), 132 Ill. 287.) There, our supreme court held that a descendant is a person “who is descended from another, — that is, one who proceeds from the body of another.” (Bates, 132 Ill. at 297.) It is coextensive with issue, but does not embrace others not of issue. (Bates, 132 Ill. at 297.) The court added that “descendant” is a good term of description and that the foregoing meaning is the ordinary meaning applied to the word “descendants,” not only by the profession but by the laity, i.e., even laymen would understand without edification from legal counsel that “descendants” did not include adopteds.

In Rasmusson v. Unknown Wife of Hoge (1920), 293 Ill. 101, 107, decided six years before the settlor executed his trust, the supreme court cited Bates v. Gillett and reiterated its definition that “descendants” is a broader term than children and includes all lineal heirs in the descending line from the person or all who proceed from his body. In 1925, the year before the settlor here executed his trust, the appellate court reconfirmed the definition and meaning of “descendant” in Hale v. Hale (1925), 237 Ill. App. 410, 413, The appellate court observed that the testator did not use the word “children” or “heirs,” which arguably might have included adopteds, but rather used the word “descendants,” thereby indicating an intention to exclude those who are not descendants of a deceased beneficiary even though such deceased beneficiary might leave surviving heirs who had the legal status of children.

Our supreme court in Continental Illinois National Bank & Trust Co. v. Clancy stated:

“The term ‘issue’ was then [in 1928] synonymous with ‘descendants’ and meant those descending or issuing out of the stock or blood. It did not include strangers to the blood.” (Continental Illinois National Bank & Trust Co. v. Clancy (1959), 18 Ill. 2d 124, 128.)

The supreme court held that an adopted grandchild could not be a beneficiary of a 1928 trust, a trust made just two years after the trust in this case.

The Appellate Court, Second District, in Wielert v. Larson (1980), 84 Ill. App. 3d 151, reviewing the effect of the 1955 Probate Act stated:

“First, the ordinary definition of the word ‘descendant’ or ‘issue’ or the meaning of phrases such as ‘issue of their bodies’ or ‘heirs of their bodies’ have always meant and still continue to mean in their ordinary usage those descending or issuing out of the stock or blood. In their ordinary meaning these words or phrases have never included adopted children.” Wielert, 84 Ill. App. 3d at 154.

The court continued and pointed out that legislation in 1955 changed the definition of “descendants” by declaring that the 1955 enactment altered the term “descendant” by stating that a “child lawfully adopted is deemed a descendant.” (Ill. Rev. Stat. 1955, ch. 3, par.. 165; Wielert, 84 Ill. App. 3d at 153.) The court then stated:

“But it is equally clear that by the 1955 amendment to the Probate Act (Ill. Rev. Stat. 1955, ch. 3, par. 165) the legislature has continued to broaden the definition of the word ‘descendant’ as used for inheritance purposes beyond that of its ordinary meaning ***.” (Emphasis added.) Wielert, 84 Ill. App. 3d at 154.

In its ordinary meaning, “descendant” never included adopted children. Hence, the settlor’s intent is clear when the settlor used the term “descendants,” because in 1926 and prior to 1955 “descendants” was both legally and ordinarily defined as excluding adopteds.

The dissent implies that in order for the appellants to have sustained their burden which the dissent has imposed, the settlor was required to include words somewhere within the trust document to the effect “when I say descendant I do not mean adopteds.” Such a statement would be required post-1955 but not pre-1955. Ironically, based upon the law in existence at the time of the execution of the document, such language would have been deemed superfluous and would have raised doubts as to the clear intent of the testator because it would raise the inference that the settlor did not understand either the ordinary or the legal definition of the term “descendants.” Having determined that there was no ambiguity in the term “descendants,” we determine the settlor’s clear intent was to exclude adopteds.

Insofar as the per stirpes issue is concerned, we believe that when one interprets per stirpes in pari materia to the term “descendants” it is clear that, based upon the law at the time the document was executed, adopteds were excluded and they could not inherit by representation. Belfield v. Findlay (1945), 389 Ill. 526.

RIGHTS OF ILLEGITIMATES

Previously, we stated that illegitimates do not take because the illegitimate in this case could only take through the adopted person. However, assuming arguendo the adopted would take under this trust, we still determine the illegitimate’s right to take also fails based upon the following rationale.

The natural borns argue that the settlor’s use of the term “lawful” before the word “descendants” shows his intent to prohibit illegitimate descendants from taking under the trust. Again, we must look at the state of the law in 1926 to determine whether the term “lawful” meant “legitimate.” It is important to note, however, that the 1989 statute applies only to adopteds, not to illegitimates. Thus, when examining what the term “lawful” meant in 1926, we do not look through the prism of a presumption requiring clear and convincing proof. We look to see only what the “plain and ordinary” meaning of the term “lawful” was in 1926. (Feder v. Luster (1973), 54 Ill. 2d 6, 11.) We find that, in 1926, the term “lawftd” ordinarily meant “legitimate.”

In Marsh v. Field (1921), 297 Ill. 251, our supreme court stated, “obviously, [the term] ‘leaving lawful issue’ cannot include illegitimates.” (Marsh, 297 Ill. at 255.) The court then explained that both the terms “issue” and “lawful issue” ordinarily meant legitimate issue. (Marsh, 297 Ill. at 257.) Similarly, the court in 1920 stated:

“It is a rule of construction that prima facie the word ‘child’ or ‘children,’ when used in a statute, will or deed, means legitimate child or children, and will not be extended, by implication, to embrace illegitimate children unless such construction is necessary to carry into effect the manifest purpose of the legislature, the testator or the grantor.” Murrell v. Industrial Comm’n (1920), 291 Ill. 334, 336, overruled by Yellow Cab Co. v. Industrial Comm’n (1969), 42 Ill. 2d 226.

In Stearns v. Stearns (1941), 376 Ill. 283, the court held that a “testator’s bequests to ‘grandsons’ and the trust provisions for ‘lawful grandchildren’ [were] to legitimate grandchildren.” (Stearns, 376 Ill. at 289.) The court noted that its conclusion was supported by circumstances surrounding the execution of the 1888 will and its testamentary trust. (Stearns, 376 Ill. at 290-91.) For example, the testator took great care when drafting his will to name only his legitimate grandchildren, even though he knew of his illegitimate grandson’s existence. Stearns, 376 Ill. at 290.

Finally, as late as 1991, the court in Harris Trust & Savings Bank v. Donovan (1991), 145 Ill. 2d 166, 173, held that the term “lawful” meant “legitimate” where a settlor in his 1982 trust defined “children” and “descendants” as “only lawful blood children.” The court also noted that its construction of the word “lawful” as meaning “legitimate” was in line with other States’ decisions. Donovan, 145 Ill. 2d at 173.

We thus conclude that the term “lawful descendants” meant legitimate descendants in 1926. We also find that the illegitimate person’s attempts to explain away the language in Marsh, Stearns and Donovan are unpersuasive, in part because we are not viewing the law in 1926 in light of a presumption requiring clear and convincing proof of the settlor’s intent. Accordingly, the illegitimate person here may not share in the trust.

Having determined that neither adopteds nor illegitimates are entitled to take under the trust agreement, the constitutional issues ■ raised by defendants need not be decided by this court. People v. Rogers (1989), 133 Ill. 2d 1, 8; In re Harrison (1983), 120 Ill. App. 3d 108, 111.

In sum, we reverse the trial court’s judgment finding that the adopted person and the illegitimate person may take under the terms of the trust.

Reversed.

QUETSCH, J., concurs.

PRESIDING JUSTICE INGLIS,

dissenting:

I respectfully dissent from that portion of the majority opinion prohibiting adopteds from taking under the trust. In my view, the 1989 statute requiring clear and convincing evidence of an intent to exclude adopteds in an instrument executed at any time mandates that the adopteds share in the trust in this case.

I agree that the term “descendants” ordinarily meant only blood kin in 1926, when the trust was executed. If we were construing the trust under normal circumstances, with words to be given their “plain and ordinary” meaning (Feder v. Luster (1973), 54 Ill. 2d 6, 11), adopteds would not take under the trust. However, the 1989 statute changed the prism through which we must examine the trust’s language.

The trust’s use of the terms “descendants” and “per stirpes" does not convince me that the settlor even considered the question of adopted heirs, much less convince me that he intended to exclude them. The majority does not give the 1989 statute its intended effect and, in fact, renders it a nullity by making the “clear and convincing evidence” test and the “plain and ordinary language” test indistinguishable.

Contrary to the majority’s inferences, I do not believe that the settlor would have to have said “I intend to exclude adopteds” in order to do so, although that might have been the best course. The term “blood descendants” would have met the test of the 1989 statute.

The 1989 statute changed the rules of the game in significant fashion. The majority refuses to give the statute its full effect, and for this reason, I dissent.


source: Caselaw Access Project

author: JUSTICE McNULTY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFF FORT et al., Defendants-Appellants.
    First District (5th Division)
    Nos. 1 — 88—3632, 1—88—3635, 1-88-3636, 1-89-0220 cons.
    Opinion filed June 4, 1993.
    Rehearing denied July 7, 1993.

      Rita A. Fry, Public Defender, of Chicago (Donald S. Honchell, Assistant Public Defender, of counsel), for appellants.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Judy L. DeAngelis, and Carol L. Gaines, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNULTY

delivered the opinion of the court:

After a jury trial, defendants Jeff Fort, Derrick Kees, Ray Ferguson and William Doyle were convicted of the murder of Willie Bibbs. Defendant Fort was sentenced to 75 years, defendants Kees and Doyle were sentenced to 55 years and defendant Ferguson was sentenced to natural life imprisonment. Defendants appeal their convictions and sentences.

The following issues are raised on appeal: (1) whether the prosecution purposefully used its peremptory challenges to exclude black venirepersons from the jury; (2) whether the trial court erred in denying defendants’ motions for change of venue; (3) whether the trial court improperly denied defendant Fort’s challenges for cause as to those prospective jurors who knew of Fort’s prior conviction or who were exposed to pretrial publicity on Fort; (4) whether the trial court erred in failing to ask during voir dire certain questions proposed by defense counsel; (5) whether defendants were restricted in presenting their defense that somebody other than defendant murdered Willie Bibbs; (6) whether defendants were improperly restricted in their cross-examination of Earl Hawkins; (7) whether it was improper for the trial court to allow detailed testimony concerning the El Rukn gang; (8) whether the accomplice testimony of Anthony Sumner and Earl Hawkins was sufficient to prove defendants Kees, Doyle, and Ferguson guilty beyond a reasonable doubt; (9) whether the prosecutor made improper comments in closing argument; (10) whether the trial court erred in refusing to allow defendants Kees and Doyle to inspect their presentence reports three days prior to imposing sentence; and (11) whether the trial court improperly imposed extended-term sentences on defendants Fort, Kees and Doyle.

The relevant facts are as follows. On June 14, 1981, around midnight, Willie Bibbs was gunned down as he stood outside the Fountainhead lounge at 114 E. 43rd Street in Chicago. Bibbs died from two gunshot wounds. Six expended shell casings from a .38-caliber weapon were found near the scene. Gregory Hollis was also in front of the lounge at that time and saw a man pacing up and down 43rd Street, by the passenger side of his car. Hollis saw the man look towards the lounge and nod his head. Hollis looked to see what the man was nodding at and saw three men exit the alley wearing ski masks and carrying guns. Hollis shouted a warning to Bibbs, and as Hollis was driving off, he saw one of the men wearing a ski mask point a gun at Bibbs and he heard five or six shots fired. As Hollis drove around the block he saw two old, dark-colored cars emerge from the other end of the alley. Hollis later identified Earl Hawkins as the man he saw pacing across the street from the Fountainhead lounge. Hollis knew that Bibbs sold drugs and that Bibbs owed another drug dealer money.

Emanuel Slaughter was also sitting in his car outside the lounge when Bibbs was shot. Slaughter also noticed a man, who he later identified as Earl Hawkins, pacing across the street. He looked to see what the man was looking at and saw two men come out of the alley and he then heard five or six shots being fired.

On October 9, 1981, Earl Hawkins was arrested and charged with the murder of Willie Bibbs. Hawkins was tried and acquitted of the murder.

In 1985, Anthony Sumner, Earl Hawkins, J.L. Houston, Alvin Toney, and James Walker were found in an El Rukn safe house in Cleveland. The police arrested Houston and Walker on outstanding warrants and took them and Sumner back to Chicago. Sumner implicated himself in the Bibbs murder and another double murder. Later, Sumner was charged in the double homicide and subsequently made arrangements with the State’s Attorney’s office to testify against various members of the El Rukn street gang. Sumner told police that Fort was the leader of the El Rukns and that Fort ordered six of his men to shoot up 43rd Street. According to Sumner, Fort was upset because the Titanic Stones were selling drugs on 43rd Street without giving any money to the El Rukns. Fort was also upset because the Titanic Stones refused to drop the word Stones from their name. The El Rukns were previously known as the Blackstone Rangers and Fort did not want anybody using “Stones” as part of their name.

In 1987, after Hawkins was sentenced to death for his involvement in a double homicide and on death row, Hawkins wrote a letter to Detective Brannigan in which Hawkins offered to help Brannigan if Brannigan would help him. Hawkins, like Sumner, claimed that Fort ordered the shooting at the Fountainhead lounge because the Titanic Stones had refused to comply with Fort’s requests to kickback money and to stop using the name Stones. Hawkins claimed that a meeting was held in Fort’s apartment on the evening of June 14, 1981, and the plan was made to shoot up 43rd Street. Hawkins claimed that all of the defendants were present at the meeting. At this meeting, it was decided that Derrick Porter and Sumner were to drive cars, one with the shooters in it, the other with guns locked in the trunk. Kees and Doyle were to get handguns from the car trunk once they reached the alley near the lounge, and Ferguson was to use a machine gun. The men with the guns were to set up a crossfire and shoot into the lounge area. Hawkins was to act as the lookout. Hawkins would signal to the shooters and they would open fire on the lounge and anyone near it. Everyone, except Hawkins, was to wear a ski mask. Hawkins was to use Fort’s gun to shoot at the police if any came by before the other El Rukns had completed their assignments.

Hawkins claimed that the plan initially went as planned. Hawkins and Sumner drove to a location near the lounge, and Hawkins got out and took his lookout position. Porter and Sumner then dropped off Kees, Doyle, and Ferguson. The shooters walked down the alley, Kees and Doyle with handguns and Ferguson with a machine gun. Kees then peeked around the corner of the building to the east of the lounge where the alley and the sidewalk intersect, saw Bibbs and fired five or six shots. Hearing the shots, the others abandoned their plan and ran away. Hawkins claimed that Kees fired all the shots from the same spot.

Former El Rukn Trammel Davis also confirmed that a meeting was held at Fort’s apartment on the night Bibbs was murdered and that after the meeting Doyle, Kees, and Ferguson left with guns.

Based on this information defendants were arrested, tried and convicted. All defendants appeal.

We first address the contention, raised by all defendants, that the prosecution improperly used its peremptory challenges to exclude black venirepersons from the jury. In order to prevail on a claim of unconstitutional discrimination in the exercise of peremptory challenges, a defendant must establish a prima facie showing of purposeful discrimination. (Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct 1712.) A prima facie case of purposeful discrimination is established when defendant shows that the prosecutor exercised peremptory challenges to remove venirepersons of a cognizable racial group and that relevant circumstances create an inference of discrimination in the exclusion of venirepersons based on race. (People v. Edwards (1991), 144 Ill. 2d 108, 579 N.E.2d 336.) Relevant circumstances include a pattern of strikes against black venirepersons, the prosecutor’s questions and statements during voir dire and in exercising his challenges, whether there has been a disproportionate use of peremptory challenges against blacks, whether the excluded blacks were a heterogeneous group sharing race as their only common characteristic, the level of black representation in the venire as compared to the jury, the race of the defendant and the victim, and the race of the witnesses. (People v. Lovelady (1991), 221 Ill. App. 3d 829, 582 N.E.2d 1217.) The trial court’s determination that a defendant failed to establish a prima facie case will not be overturned .unless it is against the manifest weight of the evidence. People v. Batchelor (1990), 202 Ill. App. 3d 316, 559 N.E.2d 948.

Initially, we reject the State’s contention that defendants waived the right to raise this issue since they failed to make a proper record as to the number of black veniremembers excluded and included in the jury. Although there is some disagreement between the parties as to the exact number of blacks in the venire, the trial court, in order to make a proper record, specifically stated the number of blacks in the venire and the number of black jurors selected. The State at no time disagreed -with these figures. Accordingly, we proceed to the merits of this issue.

In arguing to the trial court that the prosecutor purposefully excluded blacks from the jury, defense counsel relied exclusively on the number of peremptory challenges used by the prosecutor to exclude blacks, arguing that a disproportionate number of peremptory challenges were used against blacks. It is clear that the mere number of black veniremembers peremptorily challenged, without more, will not establish a prima facie case of discrimination. (People v. Mahaffey (1989), 128 Ill. 2d 388, 539 N.E.2d 1172.) The trial court found that no prima facie case of discrimination had been established based on the fact that five blacks (four jurors and one alternate) had been chosen out of 15 blacks on the venire. The record also reveals that 10 of the State’s 24 peremptory challenges were used on blacks and 14 were used on whites. Accordingly, because defense counsel pointed to no circumstances showing purposeful discrimination except for the number of excluded black veniremembers, the trial court did not abuse its discretion in determining that defendants had failed to established a prima facie case of purposeful discrimination.

Defendants next argue that the trial court improperly denied their motions to change venue based on the pervasive pretrial publicity on defendant Fort. Defendant Fort claims that for the past two decades he had been the subject of extensive publicity as being the leader of Chicago’s most notorious street gang and because of this publicity, the trial court’s voir dire was futile. Defendants Kees, Doyle and Ferguson claim that because of the publicity on Fort, the trial court should have granted their motions for change of venue or severance.

A defendant is entitled to a change of venue as a result of pretrial publicity if there is a reasonable apprehension that the defendant cannot receive a fair and impartial trial. (People v. Williams (1968), 40 Ill. 2d 522, 240 N.E.2d 645.) Jurors need not be totally unaware of a case for a defendant to receive a fair trial. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. (Irvin v. Dowd (1961), 366 U.S. 717, 6 L. Ed. 2d 751, 81 S. Ct. 1639.) Accordingly, a change of venue should be granted only when it becomes apparent that it will not be possible to find 12 jurors sufficiently unfamiliar with the case to withstand a challenge for cause. (People v. Olinger (1986), 112 Ill. 2d 324, 493 N.E.2d 579.) The decision whether to grant a change of venue is within the trial court’s discretion and will not be reversed absent an abuse of that discretion. People v. Knippenberg (1979), 70 Ill. App. 3d 496, 388 N.E.2d 806.

The trial court in the instant case recognized that Fort had received substantial publicity. Consequently, the court questioned the venirepersons in order to determine the impact of the publicity and noted that if it was revealed during voir dire that it was impossible to pick an impartial jury, the case would be moved to a different county. The total venire consisted of 335 prospective jurors. Of the 198 veniremembers excused for cause, 141 were excused because of their fixed opinions regarding defendant Fort and the El Rukns. (See People v. Speck (1968), 41 Ill. 2d 177, 242 N.E.2d 208) (large number of venirepersons excused for cause demonstrates that trial court exercised care in assuring that defendant was tried by a fair and impartial jury).) A review of the voir dire reveals that while practically all of the jurors had heard of defendant Fort and the El Rukns, the 12 jurors and two alternates selected had little if any knowledge pertaining to the details of the Bibbs murder. In addition, they stated that they could set aside the information they had heard about Fort from the media and could render a verdict based solely on the evidence. See People v. Hines (1988), 165 Ill. App. 3d 289, 518 N.E.2d 1362.

Although one juror initially expressed uncertainty about his ability to be impartial due to media reports of defendant Fort and the El Kukns, upon further inquiry by the court, he stated that he would try to be as objective as possible, that it was the State’s burden to prove defendants guilty, that he had no opinion as to defendant’s guilt and that he would decide the case based solely on the evidence. The trial judge was in the best position to evaluate this response and fairly decide its candor. (People v. Tipton (1991), 222 Ill. App. 3d 657, 584 N.E.2d 316.) We do not believe that the trial court abused its discretion in finding that juror capable of rendering a fair and impartial verdict. Accordingly, the trial court did not abuse its discretion when it denied defendants’ motions for change of venue since the trial court was able to find 12 people who were able to serve as fair and impartial jurors.

We also find that the trial court acted properly in denying the motions by defendants Kees, Doyle and Ferguson requesting to be tried separately from defendant Fort. Generally, defendants indicted together are to be tried together unless separate trials are required to avoid prejudice. (People v. Bean (1985), 109 Ill. 2d 80, 485 N.E.2d 349.) It is within the trial court’s sound discretion whether to grant a motion to sever, and this court will not reverse unless there has been an abuse of discretion. (People v. Olinger (1986), 112 Ill. 2d 324, 493 N.E.2d 579.) The mere anticipation of prejudice is not sufficient to warrant a severance. Instead, severance is appropriate where codefendants’ defenses are so antagonistic that a joint trial could not be fair or where the State introduces out-of-court statements of a non-testifying codefendant that implicate the defendant. (People v. Wilson (1987), 161 Ill. App. 3d 995, 515 N.E.2d 812.) Even if we were to determine that pretrial publicity relating only to Fort is a sufficient reason to sever the trial of defendants Kees, Doyle and Ferguson from that of Fort, we would still decline to reverse the trial court’s decision denying severance. Because we determined that Fort was able to receive a fair trial despite the publicity he received, we also conclude that the other defendants were able to receive a fair trial and were not prejudiced by the fact that they were tried with defendant Fort.

Defendant Fort next contends that the trial court improperly denied his challenges for cause as to those prospective jurors who knew of his prior convictions. Defendant claims that because of the trial court’s denial, he was forced to use peremptory challenges to discharge the jurors who knew of such convictions and was forced to accept certain jurors because he had exhausted his peremptory challenges. A decision to grant challenges for cause or a request for additional peremptory challenges rests within the sound discretion of the trial court. (People v. Pecina (1985), 132 Ill. App. 3d 948, 477 N.E.2d 811.) That discretion was not abused here. After reviewing the voir dire of the two venirepersons defendant was allegedly forced to peremptorily challenge and the three jurors defendant was allegedly forced to accept, it is apparent to us that these veniremembers were properly not dismissed for cause. The court conducted extensive voir dire for the purpose of getting “out in the open” exactly what each prospective juror knew and whether he or she would be able to set aside that knowledge and base his or her decision solely on the evidence presented at trial. Although these venirepersons knew that defendant had been in jail or convicted, they did not know what the previous charges against defendant were and they stated that their knowledge would not affect their ability to be impartial. (See Murphy v. Florida (1975), 421 U.S. 794, 44 L. Ed. 2d 589, 95 S. Ct. 2031 (wherein jurors had vague recollections of defendant’s past crimes but found the prior offenses irrelevant, court noted the distinction between mere familiarity with a defendant’s past and an actual prejudice against him); People v. Tucker (1990), 193 Ill. App. 3d 849, 550 N.E.2d 581 (juror in defendant’s drunk driving trial properly found fair and impartial where she stated her knowledge that defendant had other alcohol-related convictions would not affect her impartiality).) We are not persuaded by the cases cited by defendant Fort, Marshall v. United States (1959), 360 U.S. 310, 3 L. Ed. 2d 1250, 79 S. Ct. 1171, and People v. Edwards (1976), 63 Ill. 2d 134, 345 N.E.2d 496, since the jurors in those cases knew specific details of the defendant’s prior convictions. We therefore conclude that the trial court did not abuse its discretion in believing that the jurors could evaluate this case strictly on the evidence presented at trial.

In a similar argument, defendant Fort next contends that the trial court improperly denied his challenges for cause as to certain prospective jurors who were exposed to pretrial publicity regarding Fort. Again, a careful review of the voir dire of the five individuals defendant Fort claims should have been excused for cause reveals that the trial court did not abuse its discretion when it determined that these individuals could be fair and impartial. While each of these five jurors initially may have given equivocal answers regarding his or her ability to be fair based on the information received on defendant from the media, what is significant is the fact that these individuals each said that it was the State’s burden to prove defendant guilty and that he or she could set aside the information received from the media and render a decision based solely on the evidence presented at trial. See People v. Goff (1985), 137 Ill. App. 3d 108, 484 N.E.2d 414.

Defendant Fort next maintains that it was error for the trial court to refuse to ask the venirepersons the following supplemental voir dire question:

“Can you promise that you can completely put aside anything you have read or heard about defendants and/or this case and render a verdict based solely on the evidence?”

The trial court refused to ask this question, stating that although it would not follow any strict format, it would ask the jurors whether they could decide the case based solely on the evidence presented at trial and if they could set aside any opinions they may have. While the trial court did not ask defendant’s supplemental question verbatim, the court did indeed ask the venirepersons whether they could set aside the information they received from the media and render an impartial decision. Clearly there was no abuse of discretion here.

Defendant Fort's next contention is that the trial court erred in refusing to ask supplemental voir dire questions relating to racial prejudice. Specifically, defendant wanted the court to ask whether the jurors thought that blacks were more likely than whites to commit crimes and whether the jurors had any racial animosities. We do not believe that the trial court abused its discretion in refusing to ask this supplemental question since there were no racial overtones in this case, and to ask these questions may have served to inject racial prejudice where none previously existed. See Rosales-Lopez v. United States (1981), 451 U.S. 182, 68 L. Ed. 2d 22, 101 S. Ct. 1629.

We likewise find no merit to defendant Fort’s contention that the trial court failed to ask juror Sally Bradley follow-up questions which would have revealed her incompetency to act as a juror in this case. Ms. Bradley’s responses to questioning during voir dire indicated that she was an impartial juror and that she was competent to serve as a juror. In fact, at the conclusion of Bradley’s voir dire defendant neither challenged her for cause nor asked the court to inquire further of Bradley. Later, defendant asked the court to “reconsider” Bradley because some of the defense counsel believed her to be incompetent. The court stated that it found no indication that she was incompetent. The next day, however, Chief Waldron of the sheriff’s office informed the court that Bradley had engaged in strange behavior the previous night and that she was illiterate. The court then excused Bradley and she was replaced by the first alternate. Certainly defendant Fort cannot now assert that the trial court should have asked Bradley supplemental questions when defendant never requested that the court ask Bradley any further questions. Additionally, as a review of Bradley’s questioning on voir dire reveals, there was nothing in her answers to indicate that she was incompetent to serve as a juror. The court had no reason to believe Bradley was incompetent until it was informed of her erratic behavior the next day by Chief Waldron.

Defendants Kees, Doyle and Ferguson next contend that their convictions should be reversed since they were based on the testimony of Earl Hawkins and Anthony Sumner, both of whom were accomplices. It is well established that a conviction will not be set aside unless the evidence is so improbable or unsatisfactory that.it creates a reasonable doubt of the defendant’s guilt. (People v. Byron (1987), 116 Ill. 2d 81, 506 N.E.2d 1247.) It must be determined 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. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) The uncorroborated testimony of an accomplice can be sufficient to sustain a conviction where the jury is convinced of the defendant’s guilt beyond a reasonable doubt. (Collins, 106 Ill. 2d 237, 478 N.E.2d 267.) The testimony of an accomplice witness has inherent weaknesses since the accomplice may have been promised leniency in exchange for his testimony. (People v. Newell (1984), 103 Ill. 2d 465, 469 N.E.2d 1375.) The ultimate determination of whether such testimony is sufficient to base a conviction is for the jury, which is entrusted with the task of assessing the credibility of the witnesses and the weight afforded their testimony. People v. Byron (1987), 116 Ill. 2d 81, 506 N.E.2d 1247.

The jury in the instant case was fully aware of the weaknesses. in the testimony of Hawkins and Sumner. The jury was informed that Hawkins and Sumner not only were accomplices in this case but had prior criminal backgrounds. The jury was aware that Hawkins hoped to benefit from his testimony. The jury also knew that in exchange for Sumner’s testimony, a separate murder charge against him was dismissed and he was not charged with the Bibbs murder. Defendants were afforded ample opportunity to impeach Hawkins and Sumner. Despite this impeachment, the jury still found Hawkins and Sumner credible. (See People v. Fields (1990), 135 Ill. 2d 18, 552 N.E.2d 791 (wherein the defendant also argued that Sumner’s testimony was unworthy of belief because he testified in exchange for the dismissal of a double charge against him and the court held that the evaluation of Sumner’s credibility was best .left to the jury).) Furthermore, the jury was instructed that, “When a witness says he was involved in the commission of a crime with a Defendant, the testimony of that witness is subject to suspicion and should be considered by you with caution.” (See People v. Roy (1988), 172 Ill. App. 3d 16, 526 N.E.2d 204.) We cannot say that the jury’s conclusion was unreasonable, improbable, or unsatisfactory and therefore conclude that the evidence was sufficient to prove defendants guilty beyond a reasonable doubt.

All the defendants next argue that the trial court improperly limited proof that someone other than defendants murdered Willie Bibbs. It is well settled that an accused may attempt to prove that someone else committed the crime with which he is charged. (People v. Ward (1984), 101 Ill. 2d 443, 463 N.E.2d 696.) However, if the evidence is too remote or too speculative, or if it fails to link a third person with the commission of the crime, then the trial court should exclude the evidence. (People v. Bruce (1989), 185 Ill. App. 3d 356, 541 N.E.2d 708.) The determination whether to admit evidence rests within the sound discretion of the trial court. Bruce, 185 Ill. App. 3d 356, 541 N.E.2d 708.

Defendants attempted to establish that someone named “Duke” killed Bibbs because Bibbs owed “Duke” money but refused to pay him. Our review of the record reveals that no evidence was presented to establish Duke’s identity, his presence at the scene of the murder, or his involvement in the murder. As the State points out, courts have disallowed evidence of another’s involvement in the crime even in instances where the evidence is less remote than that presented here. (See People v. Dukett (1974), 56 Ill. 2d 432, 308 N.E.2d 590) (trial court properly refused to admit testimony that several months before the murder, someone had fired a blank cartridge in the victim’s direction, burned the victim’s jacket, and told the victim that he should have his “block knocked off”).) Accordingly, the evidence linking Duke to Bibbs’ murder was too remote and speculative and therefore was properly denied by the trial court.

Defendants further contend that they were improperly restricted in their cross-examination of Earl Hawkins. Defendants complain that they were improperly precluded from questioning Hawkins about the specifics of his prior murder conviction and another double homicide that had been nol-prossed. The scope of cross-examination concerning the circumstances of a witness’ prior conviction is within the trial court’s sound discretion, and absent an abuse of that discretion, the ruling will not be reversed on appeal. People v. Boclair (1989), 129 Ill. 2d 458, 544 N.E.2d 715.

Defendants were permitted to elicit from Hawkins that he had been sentenced to death for a double murder and the fact that Hawkins testified in order to benefit himself. The trial court, however, properly determined that defendants were not entitled to elicit the details of the double murder since that crime is unrelated and irrelevant to this crime. See People v. Boclair (1989), 129 Ill. 2d 458, 544 N.E.2d 715 (trial court properly limited scope of cross-examination of State witnesses to the date and nature, but not the circumstances, of the witness’ prior murder).

Defendant Fort, in turn, argues that Hawkins should not have been allowed to testify at all because he invoked his fifth amendment rights when asked certain questions. On cross-examination, Hawkins was asked whether he was in Cleveland in 1985. Initially, Hawkins answered that he was in Cleveland in 1985, but when defense counsel repeated the same question, Hawkins refused to answer because his response may impact his appeal. Under these circumstances, it was proper for Hawkins to testify since he only refused to answer one question which would incriminate himself and he did in fact answer the question when it was initially asked.

Defendants all contend that it was improper for the trial court to allow detailed testimony regarding the El Rukn street gang. Courts recognize that, particularly in metropolitan areas, there may be a strong prejudice against street gangs. (People v. Parrott (1976), 40 Ill. App. 3d 328, 352 N.E.2d 299.) Despite this fact, evidence of gang affiliation, if relevant to the crime, is generally admissible even though it may prejudice the defendant. (People v. Buchanan (1991), 211 Ill. App. 3d 305, 570 N.E.2d 344.) Evidence showing that defendant was a member of a gang or involved in gang-related activity is admissible to provide a motive for an otherwise inexplicable act. People v. Johnson (1991), 218 Ill. App. 3d 967, 578 N.E.2d 1274.

In the instant case, evidence of defendants’ gang affiliation was indeed relevant since the evidence reveals that the killing of Willie Bibbs was motivated by a territorial feud between defendants’ gang, the El Rukns, and the victim’s gang, the Titanic Stones. Defendants also argue that Davis, Sumner, and Detective Brannigan gave unnecessary detail into the history and structure of the El Rukns. Evidence of gang history and structure is admissible when relevant. (See People v. Suarez (1991), 238 Ill. App. 3d 110, 606 N.E.2d 1237 (testimony providing insight to the gang structure in Chicago and to the behavior of such gangs was admissible because it was relevant to the crime charged).) Here, we determine that the information Sumner, Davis, and Hawkins presented regarding the details of the El Rukn infrastructure was relevant to their knowledge and involvement in the murder. Furthermore, despite defendants’ contentions to the contrary, a police officer’s testimony regarding gang activity is proper when the officer’s testimony qualifies as expert opinion, the testimony is relevant, and the probative value of the testimony outweighs its prejudicial effect. (People v. Jackson (1986), 145 Ill. App. 3d 626, 495 N.E.2d 1207 (an officer would have a better opportunity than a layperson to observe and learn about the detailed hierarchy and activities of street gangs).) The police officer in People v. Langford, (1992), 234 Ill. App. 3d 855, 602 N.E.2d 9, was determined to be an expert since he had worked as a gang crimes specialist for 10 years and was assigned to the area where the murder occurred. Similarly, in People v. Jackson (1986), 145 Ill. App. 3d 626, 495 N.E.2d 1207, the officer qualified as an expert in light of his five years’ experience investigating, observing and infiltrating gangs.

The officer in the instant case, Officer Brannigan, was a Chicago police officer in the gang crimes unit. He was assigned to the Organized Crime Task Force through the Bureau of Alcohol, Tobacco, and Firearms. His main assignment was to investigate the El Rukns and he had been investigating the El Rukns since 1978. He monitored the El Rukns through surveillance, contact with informers, speaking with members who were willing to talk, and speaking with other law enforcement officers. Certainly, Brannigan was qualified to give expert testimony as to the hierarchy of the El Rukns.

Defendants next maintain that the trial court erred when it allowed testimony that arrest warrants had been issued for defendants. Defendants claim such testimony improperly enhanced the credibility of police officer Murphy by proving he made statements consistent with his trial testimony. Officer Murphy testified as to his investigation into the Bibbs murder. He explained that after interviewing Earl Hawkins and Trammel Davis he obtained arrest warrants for defendants. He then explained that the arrest warrants were served and defendants were arrested. The police officer in People v. Hayes (1990), 139 Ill. 2d 89, 564 N.E .2d 803, gave similar testimony that an arrest warrant was issued for the defendant’s arrest and that defendant was later arrested after a four-day stakeout. The court found:

“The issuance of a warrant for the defendant’s arrest was part of the narrative of police activities leading to the defendant’s arrest and was intertwined with the circumstances of the arrest. Testimony that an arrest warrant was issued was therefore properly admitted.” (Hayes, 139 Ill. 2d at 136, 564 N.E.2d at 823.)

We likewise conclude that the testimony of Detective Brannigan as to his investigation into the murder of Willie Bibbs and the subsequent arrest of defendants was properly admitted.

We next address defendant Fort’s argument that the trial court allowed the State to improperly rehabilitate Detective Dwyer, Lieutenant Murphy and Detective Brannigan. In defendant’s three-sentence argument on this point, defendant neither directs us to the relevant portion of the record nor explains why he believes that the rehabilitation was improper. (See Williams v. Danley Lumber Co. (1984), 129 Ill. App. 3d 325, 472 N.E.2d 586 (reviewing court is entitled to have the issues clearly defined with pertinent authority cited and comprehensive legal argument presented).) Accordingly, we consider this issue waived since it has not been adequately presented.

Defendants next argue that the prosecutor made prejudicial comments in closing argument. Defendants specifically argue that the prosecutor: (1) improperly commented on defense counsel’s views of the State’s evidence; (2) misstated the evidence; and (3) improperly emphasized the violent nature of the El Rukn street gang. Defendants first take issue with the prosecutor’s comment:

“They want you to deflect everything you’ve heard away from these five guys because they know that’s the only way they can win the case, they know that the evidence from the box is overwhelming against their clients.”

Defendants contend that the prosecutor’s comment portrayed defense counsel as being in agreement with the State on the extent of the State’s proof. (See People v. Monroe (1977), 66 Ill. 2d 317, 362 N.E.2d 295.) While we find that the prosecutor’s comment was improper, we decline to reverse on this basis. Reversible errors occurs only when the prosecutor’s remarks substantially prejudiced the defendant or in other words, were it not for the remarks, the verdict would have been different. (People v. Salazar (1991), 211 Ill. App. 3d 899, 570 N.E.2d 802.) It is our conclusion that even if this comment had not been made, the jury still would have found defendants guilty.

Defendants next claim that the prosecutor misstated the evidence when he commented:

“And remember what Earl Hawkins said about that machine gun that everybody makes a big deal of. Earl Hawkins said that he saw Ferguson coming up the alley, Ferguson was trying to get the machine gun out of the bag.”

Defense counsel objected on the basis that Hawkins never made that statement. The court responded that the jury heard the evidence and will determine the outcome of the case from the evidence. Later, the jury was instructed that any statement made in closing argument that is not supported by the evidence must be disregarded. The State concedes that the prosecutor’s comment was not supported by the evidence. However, based on the overwhelming evidence against defendants and the instruction given to the jury, we do not find the comment so prejudicial as to require a new trial. See People v. Beamon (1991), 213 Ill. App. 3d 410, 572 N.E.2d 1011.

Defendants next contend that the prosecutor improperly commented on the evil nature of the El Rukn street gang, thereby encouraging the jury to convict on the basis of defendants’ general criminal nature rather than because they were guilty of the crime charged. Specifically, the prosecutor commented that the jury had seen how the El Rukns and Jeff Fort have held the city hostage through the sale of drugs, and fear and intimidation of coming forward. The prosecutor further asked the jury why Emanuel Slaughter would give false testimony when “he’s got to go back out there on the street, he’s got to go back out there where these people prowl and murder.”

It is well settled that while a prosecutor may not make statements solely to inflame the passions or arouse the prejudice of the jury, the prosecutor may comment upon the evil results of crime and the benefits of a fearless administration of the law. (People v. Jackson (1981), 84 Ill. 2d 350, 418 N.E.2d 739.) The prosecutor may also comment on the results of the crime and its effects on the community. (People v. Johnson (1979), 73 Ill. App. 3d 431, 392 N.E.2d 587.) We find that the comments here were properly based on the evidence which showed that Willie Bibb was gunned down because he was part a gang which sold drugs in an area the El Rukns sought to control. Furthermore, Emanuel Slaughter and Gregory Hollis testified that they originally lied about their knowledge of El Rukn involvement in Bibbs’ murder because they felt threatened and were in fear of the El Rukns. A prosecutor may properly argue that defendant engendered fear in the witnesses when it is based on the evidence. (People v. Brandon (1990), 197 Ill. App. 3d 866, 557 N.E.2d 1264.) Here, the prosecutor properly commented on the evidence.

Next, defendants Kees and Doyle contend that they are entitled to new sentencing hearings because they did not receive presentence reports three days before sentencing as required by section 5 — 3— 4(b)(3) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 3—4(b)(3)). The section provides that a presentence report shall be open for inspection at least three days prior to the imposition of sentence, unless the three days are waived. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 3—4(b)(3).) The presentence report need not be tendered to defense counsel three days before the sentencing hearing, (People v. Stewart (1984), 101 Ill. 2d 470, 463 N.E.2d 677.) Section 5 — 3—4(b)(3) requires only that the report be open for inspection, suggesting that the attorney must make a request to inspect the report. People v. Grant (1979), 70 Ill. App. 3d 268, 387 N.E.2d 1026.

The trial court noted that the sentencing date had been set for a month, the sentencing date was agreeable to all counsel and there was no indication that Kees or Doyle requested to inspect the reports three days before the hearing. In fact, we have no reason to believe that the report was not open for inspection three days before the sentencing hearing. Furthermore, even assuming the reports were not available for inspection three days before sentencing, defendants Doyle and Kees have not persuaded us that they were prejudiced by the late notice. Defendant Doyle informed the trial court that his sentencing report was incomplete. Defendant Doyle was, however, given the opportunity to orally inform the court of the missing information. Defendant Kees also argues on appeal that his report contained incomplete mitigating material. Nonetheless, defendant Kees apparently did not make that argument to the trial court. Accordingly, we see no reason to remand this case for resentencing.

Lastly, defendants Fort, Kees and Doyle maintain that they were improperly sentenced to an extended term. We completely disagree. A trial court may sentence a defendant to an extended term “[w]hen a defendant is convicted of any felony and the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.2(b)(2).) The trial court’s decision is entitled to great weight and deference and will only be reversed if it is manifestly erroneous. People v. Benkowski (1991), 215 Ill. App. 3d 615, 575 N.E.2d 587.

Before imposing sentence, the trial court stated:

“In the case at bar,, what the evidence does disclose is a motive arising from a territorial dispute over drug distribution, and the use of the names Stones. The order of Mr. Fort to get the swords, yes, it was premeditated, but more because ruthlessness was certainly envisioned, ruthlessness to the extent of the systematic liquidation of persons who might be out on 43rd Street, not limited to drug dealers alone or drug pushers, but to anybody, including the police as well for which a special weapon was supplied. And as to the manner of execution would, could scarcely not conclude that it was flagrantly criminal, masked hunters hiding in shadows, stalking their prey, cold-blooded, without any doubt.”

In light of the fact that defendants would have shot anybody, even a police officer, the trial court certainly was justified in finding that defendants’ actions were premeditated, ruthless and cold-blooded, thereby warranting an extended-term sentence.

Accordingly, based on the reasons set forth above, we affirm defendants’ convictions and sentences.

Affirmed.

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


author: PRESIDING JUSTICE MANNING

text:
    LARRY FRET, Plaintiff-Appellee, v. EDWARD TEPPER, Defendant (The Department of Transportation, Defendant-Appellant).
    First District (1st Division)
    No. 1 — 91—1064
    Opinion filed June 7, 1993.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, of Chicago, of counsel), for appellant.
    Alfieri, Abbene, Durkin & Dailey, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

This is an appeal brought by Illinois Department of Transportation (hereafter the Department), which challenges the trial court’s entry of an order limiting the Department’s workers’ compensation lien pursuant to section 5(b) of the Workers’ Compensation Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.5(b)). Although plaintiff, Larry Fret (hereafter plaintiff), filed a motion to adjudicate the lien held by the Department following his settlement of the underlying personal injury lawsuit against defendant, Edward Tepper (hereafter defendant), the trial court failed to conduct an evidentiary hearing to determine the amount of the settlement to be attributed to the lien. Consequently, we vacate the order and remand this matter for an evidentiary hearing to determine what amount of the settlement should be applied to the Department’s lien.

The pertinent facts follow. Plaintiff was employed as a highway maintainer with the Department. On June 6, 1984, he was involved in a vehicular accident with defendant while driving a truck for his employer. Plaintiff received medical treatment and workers’ compensation benefits from the Department for the injuries he suffered. According to his deposition testimony, plaintiff remained off work for three weeks during which time he was examined once on July 19, 1984, by Dr. Ben Camacho, a physician hired by the Department to assess plaintiff’s injuries and disabilities. Dr. Camacho concluded that plaintiff would be fully recovered from any injuries sustained and able to return to his normal duties with the Department in about a week. Although plaintiff returned to work on July 30, 1984, he worked intermittently for approximately one month.

On August 29, 1984, while driving a tractor mower, plaintiff hit a bump and either injured anew or reinjured his back. As a result of this accident, plaintiff was hospitalized for a month but eventually returned to work briefly in December 1984 until he finally quit in January 1985. Plaintiff also received workers’ compensation benefits from the Department during this time. The record also reflects, as exhibitory parts of the Department’s motion for reconsideration, a copy of the settlement contract lump sum petition and order and a copy of the memorandum of decision of the arbitrator filed in the ongoing workers’ compensation proceedings between plaintiff and the Department.

In the interim, plaintiff filed a personal injury lawsuit against the driver of the other vehicle, defendant Tepper. Although the original lawsuit was dismissed by voluntary nonsuit due to the inability of the plaintiff to locate the defendant, defendant’s motion to dismiss was denied by the trial court and plaintiff was allowed to refile his complaint. Plaintiff and defendant then negotiated a settlement for $12,000 and the trial court subsequently dismissed the lawsuit.

Plaintiff then filed a motion to adjudicate the workers’ compensation lien held by the Department. In the motion, plaintiff stated that the Department was claiming a lien in excess of $20,000. During the hearing on the motion to adjudicate, plaintiff’s counsel represented to the trial court that two accidents were involved rather than one and that the Department alone, not defendant Tepper, was the responsible party for the second on-the-job accident. The Department responded that only one worker’s compensation claim had been processed and that, if anything, the second injury was a mere aggravation of the first injury which entitled it to attach the lien to the entire settlement. Without the benefit of an evidentiary hearing, the trial court entered an order on October 24, 1990, adjudicating the Department’s lien. The court found that the amount of the benefits attributable to the vehicular accident between plaintiff and defendant was $2,702.96. This sum represented medical bills of $219.75 and $529 and temporary total disability benefits of $1,954.21. After deducting 25% from the figure for attorney fees, the court ruled that the final figure owed the Department was $2,027.22. The court also ruled that the amount of compensation benefits over and above $2,702.96 was “attributable to and results from the 8/29/84 accident as an employee of the Illinois Department of Transportation.”

On its motion for reconsideration, the Department argued that the trial court first erred by permitting settlement of the lawsuit without the consent of the Department pursuant to section 5 of the Act. The Department also argued that the court improperly accepted plaintiff’s representations that there were really two accidents instead of one accident. The Department urged that the trial court improperly accepted plaintiff’s theory that a second accident was alleged to have occurred on August 29, 1984, for which the Department could attach no lien.

Nevertheless, without settling the substantive issues, the trial court reiterated that the Department’s lien covered only benefits paid between June 6, 1984, and August 29, 1984, and that the remaining benefits were not subject to the lien held by the Department. After the trial court denied the Department’s motion for reconsideration, it filed a timely notice of appeal. This court granted the Department’s motion to stay the trial court proceedings pending resolution of the appeal.

Section 5(b) of the Act provides:

“Where the injury or death for which compensation is payable under this Act was caused under circumstances creating a legal liability for damages on the part of some person other than his employer to pay damages, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer’s payment of or liability to pay compensation under this Act. In such case, however, if the action against such other person is brought by the injured employee or his personal representative and judgment is obtained and paid, or settlement is made with such other person, either with or without suit, then from the amount received by such employee or personal representative there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee or personal representative including amounts paid or to be paid pursuant to paragraph (a) of Section 8 of this Act.
* * *
If the injured employee or his personal representative agrees to receive compensation from the employer or accept from the employer any payment on account of such compensation, or to institute proceedings to recover the same, the employer may have or claim a lien upon any award, judgment or fund out of which such employee might be compensated from such third party.
In such actions brought by the employee or his personal representative, he shall forthwith notify his employer by personal service or registered mail, of such fact and of the name of the court in which the suit is brought, filing proof thereof in the action. The employer may, at any time thereafter join in the action upon his motion so that all orders of court after hearing and judgment shall be made for his protection. No release or settlement of claim for damages by reason of such injury or death, and no satisfaction of judgment in such proceedings shall be valid without the written consent of both employer and employee or his personal representative, except in the case of the employers, such consent is not required where the employer has been fully indemnified or protected by Court order.” Ill. Rev. Stat. 1989, ch. 48, par. 138.5(b).

In the instant case, the propriety of the adjudication of the Department’s lien pursuant to section 5(b) revolves around the statutory language: “[w]here the injury or death for which compensation is payable under this Act was caused under circumstances creating a legal liability for damages on the part of some person other than his employer to pay damages.” (Ill. Rev. Stat. 1989, ch. 48, par. 138.5(b).) Plaintiff contends that the June injury occurred under circumstances creating liability to pay damages on the part of the defendant. However, he asserts that the August 29, 1984, injury was a second work-related injury for which the defendant has no liability to pay damages to him. Thus, any benefits paid to him by the Department for the August injury and resulting disability cannot be claimed by the Department as “compensation” for which a third party was responsible and which the Department could recoup from him in its lien. He contends that the trial court properly allowed the Department to collect its lien only from compensation benefits paid from the June to the August injury and properly denied all.other amounts.

The Department contends that the August 29, 1984, injury was merely an aggravation of the original injury. Moreover, it maintains that the plaintiff considered it as such as revealed in his own deposition. We have reviewed the record and note preliminarily, that is, without the benefit of testimony, expert or otherwise, or evidence of record, that it bears out the Department’s position.

For example, a review of the pleadings below demonstrates that in the underlying complaint, plaintiff sought damages only for the accident which occurred on June 6, 1984. However, in his response to defendant’s interrogatories, plaintiff listed several attending physicians and the dates on which they rendered services as follows: August 29, 1984 to September 28, 1984 and June 12, 1984 to July 11, 1984. He also listed the hospital and medical bills as: June 6, 1984— $219.85; June 7, 1984 — $529; August 30, 1984 to November 10, 1984 — $9,100.24. Plaintiff then further attributed time he was unable to work as a result of the injury as follows: June 4, 1984 to June 25, 1984; June 29, 1984 to July 29, 1984 and August 30, 1984 to December 17, 1984. Finally, in response to question No. 13, plaintiff responded that he “aggravated his back by having to return to work” and “on a tractor cutting grass on a highway near Elmhurst.”

The law is well established that where any normal activity can aggravate an employee’s preexisting condition, disability resulting from the aggravation is not compensable under the Act. (Reliance Elevator Co. v. Industrial Comm’n (1988), 171 Ill. App. 3d 18, 524 N.E.2d 1022.) However, a work-related aggravation of a preexisting problem can properly be found to entitle a claimant to compensation. (Anderson Clayton Foods v. Industrial Comm’n (1988), 171 Ill. App. 3d 457, 526 N.E.2d 844.) Before he can receive benefits, however, the employee must demonstrate that the employment significantly contributed to the injury by placing him in a position increasing the dangerous effects of the physical act which revealed the condition of ill-being. (Pryor v. Industrial Comm’n (1990), 201 Ill. App. 3d 1, 558 N.E.2d 788.) Nowhere does the law mandate that this aggravation is a second or separate and distinct injury for which the employer alone is liable to the employee. To the contrary, the plaintiff here sought damages from the defendant for the injury which occurred on August 29, 1984, as if it were an aggravated condition of the injury of June 6, 1984.

Moreover, as noted above, the record here does not support the trial court’s purported finding that a second, separate accident occurred on August 29, 1984, for which the Department paid separate workers’ compensation benefits. Plaintiff processed a claim for only one loss. His lawsuit against defendant claimed only one injury. He also claimed an aggravation of the initial injury as a result of the tractor injury on August 29, 1984. The settlement was based on medicals and time lost from work for a period commencing with the June 1984 injury until December 1984. Consequently, in addition to resolution of the issues of whether a second separate accident ensued or whether the second injury was merely an aggravation of the first injury, we also believe a question is raised as to what amount of the settlement, purportedly based upon the plaintiff’s medicals and specials, should be attributed to the Department’s lien.

Accordingly, based on a plain reading of the Act, we conclude that the Department is entitled to workers’ compensation payments it made to the plaintiff for injury or injuries he sustained to the extent he has obtained a recovery in the underlying personal injury lawsuit for that injury or those injuries. Pursuant to section 5(b), to the extent that a recovery is had from a third party, an employer is entitled to be reimbursed for the compensation benefits it paid. To hold otherwise would be to permit the employee to receive a double recovery, one from the third party and the other from his own employer. Continental Casualty Co. v. Sweda (1969), 113 Ill. App. 2d 423, 427-28, 251 N.E.2d 65, 67.

Moreover, the Illinois Supreme Court has opined that the plain meaning of section 5(b) imposes the duty of protecting the employer’s lien upon the court. The court states, “where a settlement between the employee and the third party is reached, the statute requires either the employer’s consent or an order of the court protecting him. There can be little question that what is protected is the employer’s right to be reimbursed for the ‘amount of compensation paid or to be paid by him to such employee ***.’ ” (Freer v. Hysan Corp. (1985), 108 Ill. 2d 421, 426, 484 N.E.2d 1076, quoting Ill. Rev. Stat. 1975, ch. 48, par. 138.5(b).) Here, the record is clear that the Department did not provide its written consent for the settlement and it is unclear whether the Department was fully indemnified or protected by court order. On remand the trial court must consider whether the Department’s lien is protected. See Insurance Co. of North America v. Andrew (1990), 206 Ill. App. 3d 515, 521, 564 N.E.2d 939.

Finally, as argued by the parties on appeal, we have revisited this court’s recent opinion in Robinson v. Liberty Mutual Insurance Co. (1991), 222 Ill. App. 3d 443, 584 N.E.2d 182. In Robinson, the plaintiff suffered a work-related injury and applied for workers’ compensation benefits. Two and one-half years later, he underwent surgery which left him in worse condition. Plaintiff then filed a medical malpractice lawsuit against the surgeon. He claimed the surgery was necessary because of the prior injury, and he also sought and received compensation benefits for the surgery. When the malpractice suit settled, the workers’ compensation carrier sought reimbursement for its entire lien. This court held that the carrier was not entitled to reimbursement for the benefits it paid to the plaintiff prior to the surgery because the services were incurred prior to the surgery and were not related to the medical malpractice suit. Under Robinson, there were two separate and distinct causes for the plaintiff’s injuries.

The Robinson case may or may not lend support to the respective parties on remand. On the one hand, the record in this appeal fails to show that there were two separate causes for plaintiff’s back injury since it does show that plaintiff made a claim for workers’ compensation benefits for the intermittent periods when he was off work between June and December 1984 and he attributed all of the time off work to the accident of June 6, 1984. This includes benefits he received, according to his deposition testimony, after he aggravated the injury on August 29, 1984. On the other hand, the deposition testimony of the Department’s physician, Dr. Camacho, reveals the expert testimony of a medical professional that plaintiff had fully recovered from the June 1984 accident. This conclusion standing alone, as it does now, without the benefit of other expert testimony or any testimony about the expenses attributable to that injury or the aggravation of the injury; if any, might lead one to a contrary position. As stated in Robinson, most courts have ruled that the employer’s lien should extend to only those expenses attributable to the medical aggravation of the injury. Robinson, 222 Ill. App. 3d at 447.

However, because no motions for summary disposition were of record, because there was no testimony, and because no evidence was introduced or admitted into the record, we would be remiss to assess what is included in the record on appeal and draw our own conclusions. The trial court stated it was normal for the court to determine the claim and we agree, with the caveat that it must be done in a manner in light of a proper record. In Bart v. Union Oil Co. (1992), 236 Ill. App. 3d 964, 603 N.E.2d 77, this court stated that a trial court has the authority to determine to which of several claims a settlement amount is attributable. In that case, the court simply failed even to attempt to allocate proceeds among plaintiffs various claims. However, the difference in Bart and the instant case is that there the court’s decision would have followed a full hearing. All that remained was for the court to determine what amount of the settlement therein should have been offset by benefits paid.

Accordingly, we reverse and remand this cause for an evidentiary hearing to adjudicate the Department’s lien by determining what amount of the workers’ compensation lien attaches to the settlement and to resolve other substantive issues in a manner not inconsistent with this opinion.

Reversed and remanded for further proceedings.

CAMPBELL and O’CONNOR, JJ., concur.


author: JUSTICE O’CONNOR

text:
    FRANK FAKHOURI, Special Adm’r of the Estate of Joseph Fakhouri, Deceased, Plaintiff-Appellant, v. DONALD TAYLOR et al., Defendants-Appellees (Boniface Dy, Defendant).
    First District (1st Division)
    Nos. 1 — 91—3641, 1—92—1416 cons.
    Opinion filed June 7, 1993.

      Corboy & Demetrio, P.C., of Chicago (Philip H. Corboy and Kevin G. Burke, of counsel), for appellant.
    Querrey & Harrow, Ltd., of Chicago (Michael Resis and Dennis A. Marks, of counsel), for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff, Frank Fakhouri, brought this action for the wrongful death of Joseph Fakhouri, who plaintiff alleged died as a result of an overdose of Imipramine, a psychiatric drug. Plaintiff sued Dr. Boniface Dy, the physician who prescribed the drug, the K mart Corporation (K mart), at whose pharmacy the prescriptions were filled, and two of K mart’s employees, Robert Kelly and Donald Taylor, the pharmacists who actually filled the prescriptions. Relevant here is count II of the complaint, in which plaintiff alleged that K mart, Kelly, and Taylor (collectively defendants) had been negligent in filling prescriptions for quantities of Imipramine beyond those normally prescribed and in failing to warn either Dr. Dy or Joseph Fakhouri that the prescriptions were for an excessive and unsafe quantity. Plaintiff appeals from two orders of the circuit court granting defendants’ motions to dismiss. In this appeal, plaintiff asks this court to impose upon pharmacists a duty to warn their customers of prescribed dosages of medication in excess of the manufacturer’s recommended limits. We affirm the orders of the circuit court.

We initially note that this is not a case of first impression as both the second and fourth districts of the appellate court previously have addressed the issue now before us. In both cases, the courts have rejected the imposition of the duty urged by plaintiff here.

In Leesley v. West (1988), 165 Ill. App. 3d 135, 518 N.E.2d 758, appeal denied (1988), 119 Ill. 2d 558, 522 N.E.2d 1246, plaintiff filed suit against her doctor, a pharmacy, and a pharmaceutical company for damages resulting from gastrointestinal bleeding allegedly caused by a prescription drug manufactured by the pharmaceutical company, prescribed by her doctor, and supplied by the pharmacy. Plaintiff charged the pharmacy with negligence in that it failed to warn her of the drug’s possible adverse side effects. (Leesley, 165 Ill. App. 3d at 137.) The appellate court, however, refused to subject pharmacists to liability for failure to give warnings which the physician had not requested to be given to the patient, noting such a duty would abrogate the learned intermediary doctrine. (Leesley, 165 Ill. App. 3d at 142.) That doctrine provides that manufacturers of prescription drugs have a duty to warn prescribing physicians of the drugs’ known dangerous propensities, and the physicians, in turn, using their medical judgment, have a duty to convey the warnings to their patients. (See Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 517, 513 N.E.2d 387, cert. denied (1988), 485 U.S. 905, 99 L. Ed. 2d 236, 108 S. Ct. 1077.) As a result, the doctrine prevents the imposition of a duty upon drug manufacturers to warn patients directly. (Kirk, 117 Ill. 2d at 519.) In view of the doctrine, the appellate court could not place a greater burden on pharmacists than that which was placed upon the drug’s manufacturer, concluding that the “ ‘extent of warnings to patients concerning prescription drugs *** is within the discretion of the physician.’ ” Leesley, 165 Ill. App. 3d at 143, quoting Kirk, 117 Ill. 2d at 524.

A similar approach was taken in Eldridge v. Eli Lilly & Co. (1985), 138 Ill. App. 3d 124, 485 N.E.2d 551, upon which Leesley relied. In Eldridge, the plaintiff brought a wrongful death suit against, inter alia, the pharmacy which had filled the decedent’s prescriptions. Plaintiff charged the pharmacy with negligence in that it had filled the prescriptions for quantities of the drug beyond those normally prescribed and had failed to warn the decedent’s doctor that the prescriptions were for an excessive quantity. The decedent’s death was the result of an overdose of the drug. (Eldridge, 138 Ill. App. 3d at 125-26.) That appellate court also refused to impose upon pharmacists a duty to warn of excessive prescriptions. The court noted that drug manufacturers had a duty to warn doctors of the dangerous propensities of a drug. It is the doctor who acts as a “learned intermediary” on behalf of the consumer. (Eldridge, 138 Ill. App. 3d at 127; see also Kirk, 117 Ill. 2d at 526 (citing Eldridge with approval).) Therefore, it is the physician who “must evaluate the patient’s needs, assess the risks and benefits of available drugs, prescribe one and supervise its use.” (Eldridge, 138 Ill. App. 3d at 127.) Because the propriety of a prescription depends not only on the propensities of the drug, but also on the patient’s condition, the court reasoned that to impose such a duty upon pharmacists would “require the pharmacist to learn the customer’s condition and monitor his drug usage. To accomplish .this, the pharmacist would have to interject himself into the doctor-patient relationship and practice medicine without a license.” Eldridge, 138 Ill. App. 3d at 127. See also Jones v. Irvin (S.D. Ill. 1985), 602 E Supp. 399, 402 (Federal court sitting in diversity declined to impose a similar duty upon a pharmacy, noting that such a duty would “only serve to compel the pharmacist to second guess every prescription a doctor orders in an attempt to escape liability”).

Plaintiff acknowledges both Eldridge and Leesley, but suggests that this court need not follow them because the first district has taken a seemingly opposite view of the issue in Jones v. Walgreen Co. (1932), 265 Ill. App. 308. That case, however, provides no consolation to plaintiff as it is factually distinguishable from the present case. In Jones, a pharmacist had difficulty understanding the prescription in question and filled it with a dangerous drug not indicated in the prescription. The appellate court held that when doubt exists as to what drug is intended, a pharmacist has a duty to take all reasonable precautions to avoid filling the prescription with the wrong drug. Here, however, plaintiff alleged that defendants did nothing more than fill the prescriptions as ordered by the physician.

Although our supreme court has not addressed this issue directly, it appears that it has adopted the learned intermediary doctrine relied upon by both Eldridge and Leesley. For example, in Kirk, plaintiff was injured while a passenger in a car driven by Daniel McCarthy, a former psychiatric patient at the hospital. Doctors at the hospital prescribed various drugs for McCarthy on the day he was discharged. Following that discharge, McCarthy consumed an alcoholic beverage. Later that same day, he was involved in the automobile accident which gave rise to plaintiff’s injuries. Plaintiff subsequently brought suit against, inter alia, the hospital for its alleged negligent failure to warn McCarthy about the drugs’ possible effects on his mental and physical abilities. (Kirk, 117 Ill. 2d at 515.) In affirming the circuit court’s dismissal of the action against the hospital, the court concluded that the plaintiff’s injury was not reasonably foreseeable. That holding was based on the fact that hospital employees did not know or have reason to know that the doctors had not given the relevant warnings. (Kirk, 117 Ill. 2d at 526.) The court found that the imposition of such a duty on hospital employees would be “cumbersome” and noted that, in

“analogous circumstances, negligence claims against pharmacists for failure to warn concerning overconsumption of drugs have been dismissed primarily because the manufacturers’ warnings about prescription drugs are to be given to the physicians, who then had the duty to warn the patients.” (Kirk, 117 Ill. 2d at 526, citing Eldridge, 138 Ill. App. 3d 124, 485 N.E.2d 551 and Jones, 602 F. Supp. 399.)

This view was iterated recently in Frye v. Medicare-Glaser Corp. (1992), 153 Ill. 2d 26, 605 N.E.2d 557, where, in dicta, the court stressed that, “[i]n our opinion, consumers should principally look to their prescribing physician to convey the appropriate warnings re-. garding drugs, and it is the prescribing physician’s duty to convey these warnings to patients.” Frye, 153 Ill. 2d at 34, citing Kirk, 117 Ill. 2d at 524.

We agree with the conclusions reached in Leesley and Eldridge. Determining which medication is to be utilized in any given case requires an individualized medical judgment, which, in our opinion, only the patient’s physician can provide. That physician, having prescribed the drug, presumably knows the patient’s current condition, as well as the patient’s complete medical history. To impose a duty to warn on the pharmacist would be to place the pharmacist in the middle of the doctor-patient relationship, without the physician’s knowledge of the patient. Furthermore, under Illinois law, the duty of the manufacturer runs to the physician and not to the patient. (Kirk, 117 Ill. 2d at 519.) Therefore, it is illogical and unreasonable to impose a greater duty on the pharmacist who properly fills a prescription than is imposed on the drug’s manufacturer.

Plaintiff, however, insists that the Illinois Pharmacy Practice Act of 1987 (225 ILCS 85/1 et seq. (West 1992)) recognizes that “a pharmacist has independent duties to his or her patients,” which supports the imposition of the duty advocated in the present case. We disagree.

In rejecting a similar argument, the appellate court in Eldridge stated that it was “evident that [in enacting the legislation] the legislature was not concerned with making pharmacists perform a safety check on physician’s [sic] prescriptions.” (Eldridge, 138 Ill. App. 3d at 129.) Although the court interpreted a version of the Act not now in effect (Ill. Rev. Stat. 1983, ch. 111, par. 4001, repealed by Pub. Act 81 — 999, §4.4, eff. December 31, 1987), the court’s conclusion was well founded. Our legislature has deemed the practice of pharmacy a “professional practice” which affects the health, safety, and welfare of the citizens of this State. (225 ILCS 85/1 (West 1992).) As such, the profession is subject to “regulation and control in the public interest” with only “qualified persons” being allowed to practice pharmacy. (225 ILCS 85/1 (West 1992).) To that end, the Act provides for a State Board of Pharmacy (225 ILCS 85/10 (West 1992)) and for the examination and licensing of pharmacists. (225 ILCS 85/6, 85/7 (West 1992)). The Act also established the minimum requirements for pharmacy facilities, their stock rooms and equipment in order to ensure the security, storage, and accurate measurement of the drugs. (See 225 ILCS 85/15 (West 1992).) The Act mandates that pharmacists list on the containers of the prescribed drugs the names of the pharmacy filling the prescription, of the doctor prescribing the drug, and the patient to whom it is prescribed. (225 ILCS 85/22 (West 1992).) In addition to that information, pharmacists must list their own initials, the serial number of the prescription, and the dosage instructions on the package. (225 ILCS 85/22 (West 1992).) The Act also prohibits a pharmacist from substituting a prescribed drug for another unless authorized by the prescribing doctor. (225 ILCS 85/25 (West 1992).) The Act is silent as to any warnings which must be given to the customer, either orally or as part of the above labelling requirement. Our review of the statute indicates that the aim of the Act was to regulate the legal storage and distribution of prescription drugs and to promulgate standards within which pharmacies and pharmacists would operate. Nothing in the Act speaks to the duty sought to be imposed in the present case. Indeed, the legislature explicitly stated that “[n]othing contained in any Section of this Act shall apply to or in any manner interfere with *** the lawful practice of any physician *** or prevent him from supplying to his bona fide patients such drugs, medicines, or poisons as may seem to him proper.” (225 ILCS 85/4 (West 1992).) The inclusion of this language would indicate that it is the physician, not the pharmacist, who ultimately decides which drugs, if any, to prescribe to the patient.

To be legally sufficient, a negligence complaint must allege facts establishing the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach. (Kirk, 117 Ill. 2d at 525.) The determination of whether a legal duty exists is a question of law for the court. (Kirk, 117 Ill. 2d at 525.) Because plaintiff has failed to allege the existence of a legal duty owed to him by the defendants, the circuit court correctly, granted defendants’ motions to dismiss.

The orders of the circuit court dismissing count II of plaintiff’s complaint are affirmed.

Affirmed.

CAMPBELL and BUCKLEY, JJ., concur.

       Defendant Taylor was not served with a summons at the time defendants K mart and Kelly filed their motion to dismiss. Taylor subsequently was served and adopted K mart and Kelly’s motion to dismiss as his own. The circuit court granted K mart and Kelly’s motion on October 10, 1991, and plaintiff appealed. The circuit court dismissed the action with regard to defendant Taylor on April 1, 1992, and plaintiff appealed that order as well. Both appeals were consolidated by order of this court.