text:
    KATHLEEN THOMPSON, Indiv. and as Adm’r of the Estate of Richard Thompson, Deceased, et al., Plaintiffs-Appellees, v. THE COUNTY OF COOK et al., Defendants-Appellants.
    First District (2nd Division)
    No. 1—90—1547
    Opinion filed November 19,1991.
    Rehearing denied December 17, 1991.

      Jack O’Malley, State’s Attorney, of Chicago (Joan S. Cherry and Frank J. Oles, Assistant State’s Attorneys, of counsel), for appellants.
    Leahy & Donovan, of Chicago, and Roy D. Simon, Jr., of Washington University School of Law, of St. Louis, Missouri (Tom Leahy, of counsel), for appellees.
   PRESIDING JUSTICE SCARIANO

delivered the opinion of the court:

An intoxicated driver, while exceeding the speed limit, went off a highway alleged to have been lacking in proper warning signs, causing the death of his intoxicated passenger. The issue is whether the deceased’s widow, minor child and personal representative may recover damages for his death under the provisions of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1981, ch. 85, par. 1 — 101 et seq.).

On March 6, 1982, at about 7:00 p.m., Richard Thompson and Brian Gittings visited Richard’s brother, Mark Thompson, Mark’s wife, and their newborn baby at Humana Hospital. While there, according to Mark’s testimony, Gittings told Mark that he and Richard had been drinking beer that afternoon at the Arlington Park Boat Show and that subsequently they had gone to the Assembly, a tavern, where they drank beer and “shots.” Based upon what Mark had heard and observed of Gittings at the hospital and his four years of experience as a bartender, he concluded that Gittings had been drinking and that Richard had been drinking even more heavily.

Police officer Gary Dembek testified as follows: At approximately 8:50 p.m., as Gittings was driving west on Route 62, Dembek picked his car up on radar. Although Dembek would typically give drivers “an allowance of 12 to 13 miles an hour before [he] would stop them,” his radar indicated that Gittings was driving at 69 miles per hour in a 55-mile-per-hour zone. Dembek activated the Mars lights on his roof, turned his vehicle around and pursued Gittings in an attempt to stop him. After Dembek followed him for a short while on Route 62, Git-tings turned northbound onto Sutton Road, where Dembek continued to pursue him. Although the posted speed limit on Sutton Road was 35 miles per hour, Dembek estimated the speed of Gittings’ vehicle to be in excess of 80 to 85 miles per hour. He did not at any time observe Gittings weaving along the road. Dembek lost sight of Gittings’ vehicle as it continued northbound on Sutton Road. As Dembek entered a curve he observed several small tree branches lying in the roadway, but continued northbound on the road past the curve and the branches. He estimated his speed through the hills and curves to be approximately 60 to 65 miles per hour, and 85 to 90 miles per hour on the straightaways. Dembek continued his search for Gittings’ vehicle on Sutton Road until he reached Lake-Cook Road.

When he was unable to locate Gittings’ vehicle, he turned his squad car around and returned to where he had seen the branches on the road. He then left the-car to get a better look at the scene and discovered an Oldsmobile, which appeared to be the vehicle he had been pursuing only moments before, at the bottom of a ravine, heavily damaged and covered with tree branches. Dembek observed that the only occupant of Gittings’ vehicle, who was later identified as Richard Thompson, was lying on his back on the passenger side of the vehicle, severely injured. In the approximately minute and a half that it had taken for Dembek to travel to the end of Sutton Road and back to the scene of the accident, Gittings, unbeknown to Dembek, had left the wreckage of the damaged vehicle. Dembek called on his police radio for an ambulance, and when it arrived, Richard was transported to the hospital. At the hospital, Dembek had a blood-alcohol test performed on Richard, the results of which indicated that he had a blood-alcohol level of .207, which “would be expected to have impaired [his] mental and physical functions.”

Gittings testified as follows: He arrived at the boat show at about 1 p.m. and had one beer. At about 4:30 p.m., he and Richard went to the Assembly and had some beers, then went to the hospital for approximately 30 minutes, and later returned to the Assembly at about 7:30 p.m. for one more beer. Although Gittings testified in his deposition that he had a total of eight beers at the Assembly, at trial he stated that he had a total of four beers while there, but had not eaten anything during the day. At about 8 p.m., he left the Assembly accompanied by Richard and attempted to drive him to his home in Lake in the Hills.

Gittings further testified that although Route 62 led directly to Richard’s home in Lake in the Hills, he took Sutton Road because it was a “scenic drive.” He had driven on Sutton Road only a few times before the accident, most recently two years earlier, and never at night. He was intoxicated while driving down Sutton Road at a speed of 45 miles per hour, but felt able to drive and did not think his physical abilities had been “impaired that much.” He neither heard nor saw a police car as he drove on Route 62. He saw a speed limit sign for the road but did not see any sign indicating any curves in the road. The next morning, he was arrested and later convicted of reckless homicide, Richard having died of his injuries 133 days after the accident.

Robert Lippman, a civil engineer, called by plaintiffs, testified as follows: The curve on northbound Sutton Road where Gittings turned off the road should have been marked with a sign indicating that the curve was a “sharp” one instead of one indicating that it was a “gentle” curve. One would not expect the curve at that point to be a sharp one because although there were two “gentle” curves before that one, all three were indicated as “gentle” ones. A driver would therefore expect the third curve to be gentle and might not have enough time to react on finding the unexpected. The “sharp” (or third) northbound curve was particularly difficult to see because it was not visible until a driver was within 10 to 15 feet of it, after the driver proceeded past the crest of a hill. In contrast, the southbound portion of the road at that point properly indicated the presence of a “sharp” curve. Centerlines and edgelines, such as those on Sutton Road, are sometimes not visible at night, especially to one who is driving over a hill, so “chevrons” should have been placed around the curve.

Lippman further testified that during the three years before Git-tings drove off Sutton road, six accidents had occurred near the same curve involving northbound traffic and this should have provided the County with notice of a dangerous condition. It was Lippman’s opinion that Richard Thompson used the road in an intended and permitted manner, and despite Gittings’ and Thompson’s intoxication, Thompson’s use of the road was foreseeable. The fact that he had gotten to the point where he drove off the road showed that he was in “fairly good shape” until he was surprised by the curve.

On cross-examination, Lippman conceded that chevrons “were somewhat of an innovation when this accident occurred” and that he “could not fault the county if they had not installed chevrons at that time.”

Robert Seyfried testified that he was a highway expert and traffic and highway engineer, and that based upon tests that he and the County conducted, the signs and pavement markings on Sutton Road provided adequate warning of the curve where Gittings turned off, to those who drove within the legal speed limit.

At the close of all the evidence, defendants moved for a directed verdict based upon, among other grounds, the absence of any dtity owed to plaintiffs. The motion was denied, the trial judge stating, “It’s a question of fact as to whether or not the County proximately caused this injury despite the testimony ***.” The jury returned a verdict in the net amount of $2,361,740, after reducing the gross amount by 23% for Richard’s negligence. Defendants’ motions for judgment notwithstanding the verdict, or in the alternative, a new trial, were denied.

In light of Gittings’ testimony that he did not see any signs but the posted speed limit on Sutton Road, it is difficult to imagine what all of the jousting over the content of the highway signs was all about; nor was there any dispute over the placement or the location of the signs. No matter, for the disposition we make of this case requires no tedious cerebration over this issue. Defendants, citing Curtis v. County of Cook (1983), 98 Ill. 2d 158, argue that under the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1981, ch. 85, par. 3 — 102(a)) (the Act), they did not owe any duty to Richard because he was not an intended and permitted user, in the exercise of ordinary care, of Sutton Road. The Act provides:

“Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used ***.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 85, par. 3— 102(a).

In Curtis, plaintiff was a passenger in an automobile which was being used for speed-clocking, “a form of drag racing in which a motorist attempts to reach the greatest possible speed in the space of a quarter mile” (Curtis, 98 Ill. 2d at 161), and alleged that she was in the exercise of due care, but that the defendants were negligent in failing to take adequate steps to prevent such activity, thus causing her to suffer severe physical injuries. 98 Ill. 2d at 161.

Plaintiffs, however, maintain that in accordance with the holding of the court in Palladini v. City of East Peoria (1985), 134 Ill. App. 3d 345, the doctrine of comparative negligence governs in this case. In Palladini, plaintiffs brought suit after their son suffered fatal injuries caused when his motorcycle struck a large hole in the city’s road, went out of control, and smashed into a tree. The trial court granted the city’s motion to dismiss, in which the city contended that no cause of action was stated in the four counts at issue in the case since the plaintiffs failed to allege that decedent was in the exercise of ordinary care, citing section 3 — 102(a) of the Tort Immunity Act. On appeal, the court, while conceding that “[a] literal reading of the Act would lead one to believe that the legislature intended that a municipality has no duty to one who is contributorily negligent,” stated:

“The principal thrust of the Act was to hold a municipality to the same standards as a common law defendant. At the time this meant that contributory negligence was a complete affirmative defense. The advent of comparative negligence alters only the results, not the standards. A municipality has a duty to maintain its property in a reasonably safe condition. Persons using the property still must use ordinary care. When those duties are simultaneously breached, however, it is the effect which is different due to the changes dictated in Alvis [v. Ribar (1981), 85 Ill. 2d 1]. Thus, accepting the thesis that the Act seeks to apply common law standards to municipalities, the purposes of the statute are served by applying comparative negligence.” (Palladini, 134 Ill. App. 3d at 348.)

However, plaintiffs and the Palladini court overlook that in upholding the grant of judgment on the pleadings to the defendants in Curtis, the court noted that the plaintiffs had pleaded the absence of any negligence on the part of the passenger, and, deciding the case strictly in accordance with the provisions of the Tort Immunity Act, ruled that the county and village defendants owed her no duty thereunder.

We must therefore determine whether the trial court erred in denying defendants’ motion for a judgment notwithstanding the verdict, in which it contended that defendants did not owe Richard a duty, for “[although the questions of whether a duty has been breached and whether the breach proximately caused an injury are factual matters [citation], the existence of a duty must be determined as a matter of law. [Citation].” (Emphasis added.) (Curtis, 98 Ill. 2d at 163.) As Curtis further instructs us, “[t]he Local Governmental and Governmental Employees Tort Immunity Act, which was enacted at least in part as a result of this court’s rejection of the principles underlying the sovereign immunity doctrine in Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11, is in derogation of the common law action against governmental entities and specifies certain limitations on the liability of such bodies.” (Emphasis added.) (Curtis, 98 Ill. 2d at 164.) The court went on to hold that “[o]ne of those limitations [(emphasis added)] appears in section 3— 102(a)” of the Act, quoted above, and that

“[the] language [of the Act] evinces a legislative intent to extend a duty of care only to those persons by whom the local government intended the property to be used. As a passenger in a speed-clocking automobile, Deborah Curtis cannot be said to fall within the class of motorists by whom defendant’s highways were intended to be used. [Citations].” (Emphasis added.) (Curtis, 98 Ill. 2d at 164-65.)

Moreover, section 4 of Article XIII of the Illinois Constitution abolishes sovereign immunity “[e]xcept as the General Assembly may provide by law.” (Ill. Const. 1970, art. XIII, §4.)

“The primary rule in the interpretation and construction of statutes is that the intention of the legislature should be ascertained and given effect. [Citation.] The legislative intent should be sought primarily from the language used in the statute. Where the language of the act is certain and unambiguous the only legitimate function of the courts is to enforce the law as enacted by the legislature. [Citations.] It is never proper for a court to depart from plain language by reading into a statute exceptions, limitations or conditions which conflict with the clearly expressed legislative intent. [Citations.]” Certain Taxpayers v. Sheahen (1970), 45 Ill. 2d 75.

We therefore decline to follow Palladini, it being the sole prerogative of the General Assembly, under the constitutional provision cited above, to define the nature and extent of the tort liability of local public entities. In view thereof, it becomes unmistakably clear that local public bodies may be successfully sued in Illinois only upon those terms and conditions and within the “limitations on the liability of such bodies” as specified by the General Assembly (Curtis, 98 Ill. 2d at 164 (and the cases there cited)) — all of which clearly explains the Curtis court’s holding that Deborah Curtis’ pleadings had to survive the defendants’ challenge that she failed to demonstrate that her action came within the plain provisions of the Act: that she was an intended and permitted user, in the exercise of ordinary care, of a public roadway.

Plaintiffs contend, however, that Curtis is inapplicable because there the passenger was an active participant in an illegal activity. Yet the complaint in Curtis, as noted in the opinion, states that the plaintiff passenger, a minor, age 16, was in the exercise of the degree of care required of one of her “age, experience, intelligence and understanding,” a necessary allegation since the incident complained of occurred prior to our adoption of the doctrine of comparative negligence in Alvis. Nevertheless, our supreme court held, in granting judgment on the pleadings, that:

“As a passenger in a speed-clocking automobile, Deborah Curtis cannot be said to fall within the class of motorists by whom defendant’s highways were intended to be used. [Citations.]” (Emphasis added.) Curtis, 98 Ill. 2d at 165.

It is to be carefully noted that the Curtis court drew no distinction between the driver and the admittedly passive passenger in determining the liability of the defendants. (Curtis, 98 Ill. 2d at 165.) Accordingly, plaintiffs’ argument that Gittings’ culpability as driver cannot be imputed to Thompson as his passenger is irrelevant in light of the Curtis court’s clear and unmistakable holding that a passenger, however passive, does not come “within the class of motorists by whom defendant’s highways were intended to be used.” (Emphasis added.) 98 Ill. 2d at 165.

But we need not enter into any extended disputation as to whether the foregoing discussion of Curtis furnishes an answer to plaintiffs’ contention regarding Richard’s alleged freedom of any negligence, for the finding of an absence of a duty is not in all cases determined by an examination of the pleadings, or even during the course of pretrial proceedings. Nor does it require any citation of authority that a timely raising of the issue and the making of a proper record thereon suffice to preserve it for review in the event of an adverse ruling, as happened here. Based on the evidence adduced in this case, the jury determined Richard to have been 23% negligent in causing his own demise, a verdict hardly consistent with the statutory requirement that he be in the exercise of ordinary care, and a verdict plaintiffs do not challenge. The record is also clear, as Gittings testified, that Richard did not object to his driving him home, and that Richard never asked Gittings “to pull over because he wanted to get out of the car.” The argument, therefore, cannot be sustained that Richard falls “within the class of motorists by whom defendant’s highways were intended to be used.” Curtis, 98 Ill. 2d at 165.

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

Reversed.

HARTMAN and DiVITO, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE CERDA JUSTICE GREIMAN,

license: Public Domain

text:
    RAYMOND DATTILO, Petitioner-Appellee, v. MARY GROTH, Respondent-Appellant.
    First District (3rd Division)
    No. 1—90—2051
    Opinion filed November 20,1991.
    GREIMAN, J., dissenting.
    Candace J. Wayne, of Chicago, for appellant.
    Joel S. Ostrow, of Chicago, for appellee.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

Respondent, Mary Groth, appeals from an order changing the name of her child born out of wedlock from Brian Joseph Groth to Brian Joseph Dattilo Groth. Respondent argues that there was no evidence that to change Brian’s name was in his best interest.

The parties agree that petitioner filed a petition to change the last name of Brian, but the petition does not appear in the record on appeal. According to a copy of a petition contained in the appendix to petitioner’s brief, petitioner desired that the child use the name of Brian Groth-Dattilo.

Petitioner testified to the following. Brian was born August 11, 1983. Petitioner exercised all his visitation rights. Brian once told petitioner that he wanted his name to be Brian Joseph Dattilo. Petitioner had a conversation with Brian in which Brian referred to the fact that he did not have his father’s name like other children did. Brian said he was concerned about the matter and asked when it would be resolved. Petitioner told Brian that he was working on it and not to be concerned. Brian asked when the transaction would take place. The trial court questioned whether a six-year-old child was mature enough to use such language, and petitioner responded that those were the words used and that Brian was “very with it.” On a few occasions, petitioner asked Brian to write the name Brian Dattilo, and Brian had mixed emotions about it. Petitioner also told Brian on a few occasions that he would like Brian to have the last name of Dattilo. Brian told him about 20 or 25 times that he wanted the name Dattilo.

Brian testified under examination by the trial court that he would like his name to be Brian Joseph Groth because it had been his name all his life. He shook his head in response to the questions whether he wanted the name Brian Joseph Groth Dattilo or Brian Joseph Dattilo.

In its oral ruling, the trial court referred to the fact that in the United States normally children bear the name of the father and stated that respondent had to show that the name should not be changed because it would be harmful. The petition was denied, but the trial court ordered that the name be changed to Brian Joseph Dattilo Groth.

At a hearing on the motion to reconsider, the trial court stated that the facts did not warrant the change of the name that petitioner requested. Respondent’s motion to reconsider was denied.

Respondent argues on appeal that: (1) the trial court changed Brian’s name without any basis in law or fact but based on “some bizarre notion of paternal name propriety”; (2) Brian clearly stated that he did not want his name changed; and (3) although it was petitioner’s burden of proof to show that the change in name was in Brian’s best interest, the trial court placed the burden instead on respondent to prove that the name change would not be in Brian’s best interest.

Petitioner responds that: (1) Brian’s wishes should be disregarded because he was only six years old; (2) the use of petitioner’s name was beneficial in regard to petitioner’s relationship with Brian because Brian’s parents were never married, because respondent undermined petitioner’s interest in Brian and Brian’s ability to identify with petitioner, and because respondent continuously interfered with petitioner’s visitation rights; (3) the trial court found that it was in Brian’s best interest to have the name Dattilo appear as a middle name; and (4) the use of the father’s name as a middle name neutralized the effects of the mother’s behavior.

“An Act to revise the law in relation to names” (Name Change Act) provides that an order changing the name of minors

“shall only be entered *** if the court finds by clear and convincing evidence that the change is necessary to serve the best interest of the child. In determining the best interest of a minor child under this Section, the court shall consider all relevant factors including:
(1) the wishes of the child’s parents, and any person acting as a parent who has physical custody of the child.
(2) the wishes of the child and the reasons therefor. The court may interview the child in chambers to ascertain the child’s wishes with respect to the change in name. ***
(3) the interaction and interrelationship of the child with his or her parents or persons acting as parents who have physical custody of the child, step-parents, siblings and step-siblings or any other person who may significantly affect the child’s best interest.
(4) the child’s adjustment to his or her home, school and community.” Ill. Rev. Stat. 1989, ch. 96, par. 1.

In In re Marriage of Presson (1984), 102 Ill. 2d 303, 309, 465 N.E.2d 85, 88, the Illinois Supreme Court outlined the factors to consider in determining whether a name change would be in the best interest of a child: (1) the wishes of the child and the parents; (2) the stated reasons for the proposed name change; (3) the child’s age and maturity; (4) the nature of the family situation; (5) the strength of the tie between the child and each parent; (6) any misconduct toward or neglect of the child by the parent opposing the change; and (7) the name by which the child had customarily been called.

The trial court properly may have found that to make petitioner’s surname Brian’s middle name was in Brian’s best interest. The middle name change would not be disruptive as a last name change might be and would affirm Brian’s relationship with his father, with whom he did not live. The trial court may have determined that Brian was too immature to know what he wanted his name to be. (See Presson, 102 Ill. 2d at 310, 465 N.E.2d at 88 (seven-year-old boy’s testimony about wanting to use names of both parents was not controlling because of child’s questionable judgment).) Although the trial court incorrectly stated the burden of proof (section one of the Act provides that the court must find by clear and convincing evidence that the change of name is necessary to serve the best interest of the child (Ill. Rev. Stat. 1989, ch. 96, par. 1), the result is supported by the evidence.

The judgment of the circuit court is affirmed.

Affirmed.

RIZZI, J., concurs.

JUSTICE GREIMAN,

dissenting:

This case is not a matter of great moment to our system of justice. Some might say that it is a trivial matter and that the parties ought to consider the best interests of the child and accept the equitable decision of the trial court.

However, in many ways this case is a crucible for appellate court judges.

The child’s father has supported him, has a close relationship with him and understandably desires him to bear his name. The mother, who has never been married to the father, bore this child, has been the primary person responsible for his development and education, desires the child to bear her name and have no part of the father’s name introduced into his cognomen.

The trial court, seeking to do equity, resolves the matter in a most reasonable manner by ordering that the father’s name be designated as a middle name.

The majority cites In re Marriage of Presson (1984), 102 Ill. 2d 303, 309, 465 N.E.2d 85, 88, which acknowledges that a name change must be in the best interest of the child and sets out seven criteria for a court to consider. At best, only two of the factors in Presson would be applicable to the facts of this case.

In any event, Presson was decided in 1984 and in 1985 the General Assembly amended the Name Change Act (Ill. Rev. Stat. 1985, ch. 96, par. 1) to require that any changes be effected only “if the court finds by clear and convincing evidence that the change is necessary to serve the best interest of the child.” Therefore, the standard that might obtain under Presson has been superseded by the Act of the General Assembly in the year following its decision.

The statute has been construed to acknowledge as a basis for name change the expanded standard of clear and convincing evidence necessary to the best interests of the child. (In re Marriage of Schaefer (1987), 161 Ill. App. 3d 841, 515 N.E.2d 710.) It is clear that use of the term “clear and convincing” imposes upon the petitioner an extraordinary burden, under law and that the court must employ the standard imposed upon it by statute.

Often appellate judges must only speculate as to what was in the mind of the trial court. Unfortunately, in the case at bar, the trial court leaves no room for speculation as to what was in his mind. He lays on the record his entire mental processes for all to examine.

The trial court tells us:

“The petition indicates that it would be *** in the child’s best interests that his name be changed. There has not been a great deal of evidence along those lines.
* * *
Therefore, I have not heard evidence to warrant that it would be in the best interest of the child and in the best welfare for the child that the name be changed.
•i* %
I decided that the facts *** in this case did not warrant the relief that was requested by [the father].”

The trial court’s offerings and conclusion, therefore, are at serious odds with the language and intent of section 1 of the Name Change Act (Ill. Rev. Stat. 1989, ch. 96, par. 1).

He advised the parties:

“In the United States of America normally children, except in some unusual circumstances, bear the name of their father.
* * *
I would venture to say 99% of the children in the United States bear the name of their father
* * *
I still feel that in our country the child takes the father’s name. In our country the wife takes the husband’s name, although that is not as common nowadays. It is something that is done.”

The court seems to ignore the fact that the parents have never been married. Additionally, the court appears to shift the burden of coming forward with evidence to the respondent mother in contravention of the statute. Again, the court has afforded us an opportunity to examine his thinking process. Again, he has strayed from the standard provided by the legislature.

The trial court states that he has “chancery powers” which allow him to insert the father’s name as the middle name of the child. While such action is intelligent, wise and thoughtful on the part of the trial judge, it is without authority.

The issue is not whether the burden on the youngster to bear the father’s name is difficult or unnecessary since many of us bear the burden of a name we might not have selected for ourselves.

I noted this case was a crucible for appellate judges because the trial court has done the fair, the equitable, the thoughtful thing, but has ignored the statute governing such action, imposed an improper burden upon one of the parties and looked to matters outside of the record for direction.

I believe that appellate decisions should stand as signposts for future trial judges and would return this to the trial court for a new hearing.

Accordingly, I respectfully dissent.

       Amendment to the Name Change Act was initiated by the 1984 Supreme Court Recommendations to the General Assembly. Moreover, the issue of “clear and convincing evidence” was considered separately by the House, which imposed this standard by Amendment 2 to House Bill 197 of the 84th General Assembly. Originally the standard was only a rebuttable presumption that favored the use of the family name of the natural father. 84th Ill. Gen. Assem., House Bill 197, Amendment 2, 1985 Sess.; Amendment adopted April 24,1985.

      This writer is none too pleased with his middle name “Joel” and similar dissatisfaction may someday be voiced by people currently being named Amber, Brittani, Ashley, Brandi, Blaine, Chelsea, Kelsee, Courtney, Krista, Sierra, Shawna, Chantel, Shayla, Tiffany, Moira, Katlynn, Maya, Shira, Joshua, Justin, Cody, Jared, Cameron, Chad, Kyle, Zachary, Corey, Bryce or Trevor. It is because of this dissatisfaction that we affect “Buddy,” “Bunny,” “Spike,” “Honey” and a variety of other nicknames to take the place of these unloved monikers.


author: JUSTICE McMORROW

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD SMITH, Defendant-Appellant.
    First District (4th Division)
    No. 1—88—0446
    Opinion filed November 21,1991.

      Michael J. Pelletier and Patricia Unsinn, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, William Pistorius, and John Wilk, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McMORROW

delivered the opinion of the court:

Following a jury trial, defendant was found guilty of four counts of aggravated criminal sexual assault and aggravated kidnapping. He was sentenced to an extended term of 60 years for aggravated criminal sexual assault, to be served consecutively to the sentence imposed on another conviction of aggravated criminal sexual assault. (See People v. Smith (1990), 199 Ill. App. 3d 839, 557 N.E.2d 596.) He was also sentenced to a concurrent term of seven years on a conviction for escape from custody pending trial.

On appeal, defendant contends that his lineup identifications and subsequent inculpatory statement should have been suppressed as the fruit of an unlawful detention in violation of his fourth amendment rights; that the statement should also have been suppressed because his fifth amendment right to counsel was violated; that the trial court improperly allowed irrelevant and prejudicial evidence of other crimes; and that the cumulative effect of prosecutorial misconduct in closing argument denied him a fair trial.

In December 1985, defendant moved to suppress his post-arrest statement and the lineup identifications on the grounds that the statement was involuntary and the lineups were suggestive. Following a hearing, the motions were denied. In August 1987, defendant filed a petition for rehearing of the earlier-denied motions asserting ineffective assistance of counsel at the hearings. The trial court reviewed the transcript of the 1985 hearing and denied the petition.

Defendant also filed a motion to quash his arrest and suppress evidence on the ground that he was arrested and detained without probable cause. Evidence presented indicated that defendant and his codefendant, Sandra Gicla, were arrested at approximately 8 p.m. on March 4, 1985, by Officer Siwek and his partner. The officers were conducting a drug surveillance on a street on the southwest side of Chicago when they noticed a car pass which they believed had been reported stolen. The car was occupied by defendant and Gicla. They followed the car until they received confirmation from the police dispatcher that it was a stolen car. The officers then curbed the vehicle, advised defendant and Gicla of their Miranda rights, and placed them under arrest. The officers recovered a wallet which did not belong to defendant or Gicla from the back seat of the car. During a later inventory of the car, a large plastic bag filled with stolen purses and wallets was found inside the trunk.

Defendant and Gicla were transported to the nearby eighth district police station. After routine processing, defendant was taken to the lockup and told that he would be taken to court the following morning. At approximately 11 p.m., defendant placed a telephone call to his aunt informing her of his arrest and requesting that his mother come to court the next morning with bond money.

On the motion to suppress, Sergeant Thomas O’Connor testified that in late February 1985, he became actively involved in the investigation of two similar sexual assaults which his brother, Detective Terrence O’Connor, and Detective Leonard Kukulka had been investigating from the time the assaults occurred in September 1984. Because the assaults were alleged to have been committed by a male and female, O’Connor had requested that he be notified of any arrests of Caucasian male-female teams. O’Connor also testified that he thought there might be a relationship between the sexual assaults and a series of auto thefts and thefts from cars which began in the same area shortly after the sexual assaults occurred.

Pursuant to notification of defendant’s and Gicla’s arrests, O’Con-nor and his brother went to the. eighth district police station. At approximately 1 a.m., after conferring with other officers, O'Connor advised defendant of his Miranda rights and had a brief conversation with him. The sexual assault cases were not mentioned. O’Connor then conferred with his brother, who had met with Cicla in a second-floor interview room. Due to the lateness of the hour, they were unable to assemble a sufficient number of “control subjects” with physical characteristics sufficiently similar to defendant and Cicla to conduct a fair lineup for viewing of the victims. O’Connor therefore ordered a “hold” on defendant, i.e., that defendant not be taken to court the following morning but, rather, to Area 3 headquarters for the purpose of conducting lineups.

O’Connor next spoke with defendant at 1 p.m. at Area 3 headquarters. He advised defendant of his Miranda rights and informed him that he was a suspect in two sexual assault cases and would be placed in a lineup later that day. At approximately 7 p.m. four separate lineups were conducted. Defendant was positively identified by both victims as the male assailant, and Cicla was positively identified as the female assailant.

At approximately 8 p.m., O’Connor reapprised defendant of his Miranda rights and informed him of the identifications. Defendant then made a statement admitting his involvement in the sexual assaults, after which he asked to speak with Gicla. When she was brought to the interview room, defendant encouraged her to admit her involvement also, which she did. At approximately 10 p.m., Assistant State’s Attorney Babbitt met with defendant. After receiving the Miranda warnings from Babbitt, defendant repeated the inculpatory statement he had earlier made to O’Connor. However, defendant also stated that he was “uncomfortable” signing anything, and therefore refused to sign the written summary of his statement, prepared by Babbitt.

Following arguments by counsel, the trial court ruled that there was probable cause to arrest defendant for possession of a stolen vehicle and to detain him as a suspect in the sexual assault cases. The court therefore denied defendant’s motion to quash his arrest and suppress the statement and lineup identifications, and the case proceeded to trial.

Testimony at trial established that the complaining witness, S.W., was lured by subterfuge into an automobile driven by a woman, identified by complainant as Gicla. After her abduction, she was taken to various locations where she was brutally and repeatedly sexually and physically assaulted over a 12-hour period, by a man and woman whom S.W. identified as defendant and Gicla. Over defendant’s objection, the testimony of J.S., the victim of an abduction and aggravated criminal sexual assault occurring three days after the crimes in the case at bar, was admitted by the court for the purpose of establishing identification. Her abduction and sexual assault are recounted at length and in detail in People v. Smith (1990), 199 Ill. App. 3d 839, 557 N.E.2d 596, defendant’s appeal from his separate conviction of the crimes committed against J.S. The testimony of J.S. in the case at bar was virtually identical to that given by her in defendant’s trial on those charges. On March 5, 1985, she viewed two lineups in which she positively identified defendant and Gicla as her attackers.

Officer Thomas O’Connor’s testimony relating to his investigation of the crime and defendant’s arrest was essentially the same as his suppression hearing testimony. At trial, however, he also testified to the substance of his conversation with defendant on the night of March 5, 1985. Defendant first denied any involvement in the crime. As they continued conversing, defendant mentioned that he rented a garden apartment near where J.S. had been abducted. The address was not the same as the one listed in defendant’s arrest report and was previously unknown to the police.

After O’Connor informed defendant that he had been identified in the lineups, defendant made an inculpatory statement. According to O’Connor, defendant said that he and Gicla were driving on Archer Avenue when he noticed a blond girl walking. He exited the car in an alley and instructed Gicla to circle around the block and attempt to lure the girl into the car. The remainder of his statement was consistent with S.W.’s account of her abduction and sexual assaults.

Former Assistant State’s Attorney Babbitt testified that the written summary of defendant’s statement that Babbitt prepared was essentially the same as S.W.’s account of the crimes and O’Connor’s summary of defendant’s statement to him. Defendant read the statement and agreed that it was accurate but refused to sign it. Defendant also asked Babbitt if he would “go easy on [Gicla].” Babbitt explained that he had no authority in that regard.

It was stipulated that on June 18, 1985, defendant escaped from Cook County Hospital, where he had been sent for surgery. On June 25, 1985, he was arrested in Oak Lawn, Illinois. The State then rested.

Following the presentation of all the evidence, unnecessary to relate here as not relevant to the issues before this court, the jury found defendant guilty on all counts charged in the indictment. After denying defendant’s motion for a new trial, the trial court sentenced defendant to an extended term of 60 years for aggravated criminal sexual assault and seven years for escape. This appeal followed.

Opinion

Defendant first contends that evidence concerning his statements and the lineup identifications of him made while he was in custody should have been suppressed as the fruit of an unlawful detention. Defendant has apparently abandoned his pretrial assertion that the police lacked probable cause to arrest him for possession of a stolen vehicle. He maintains, however, that the police lacked probable cause to arrest him for the sexual assaults because the descriptions provided by S.W. and J.S. of their assailants were too general to provide police with reasonable grounds to believe he committed those offenses. He argues that detaining him, beyond the time he was scheduled to appear in court on the possession charge, solely for investigatory purposes was unlawful.

Our criminal code allows a warrantless arrest when a police officer has reasonable grounds to believe that the person to be arrested has committed or is committing an offense. (Ill. Rev. Stat. 1985, ch. 38, par. 107 — 2(1)(c).) As used in the statute, “reasonable grounds” is synonymous with “probable cause” (People v. Tisler (1984), 103 Ill. 2d 226, 469 N.E.2d 147). Probable cause exists when a reasonable and prudent person in possession of the knowledge of facts and circumstances known to the officer at the time of the arrest would believe that the suspect had committed the offense. (Gerstein v. Pugh (1975), 420 U.S. 103, 43 L. Ed. 2d 54, 95 S. Ct. 854.) Whether the necessary probability is present depends on commonsense considerations and the totality of circumstances and facts known to the officer. People v. Tisler, 103 Ill. 2d at 236.

Although mere suspicion by the officer does not suffice to justify a warrantless arrest, evidence sufficient to convict is not necessary. (People v. Lippert (1982), 89 Ill. 2d 171, 432 N.E.2d 605.) An officer may rely on his knowledge and law enforcement experience to draw reasonable inferences from facts and observations. Information possessed by officers working in concert is relevant in the determination of whether an arrest is lawful. People v. Lee (1986), 151 Ill. App. 3d 510, 502 N.E.2d 399.

In the instant case, the sexual assaults which the police were investigating occurred four days apart on the southwest side of the city. The police knew that each victim was abducted by a man and woman and driven away in a car. The male assailant was described as a Caucasian, 5 feet 5 inches to 5 feet 7 inches tall, between 140 and 150 pounds, 25 to 35 years old, with brown hair. The record discloses only that the woman involved was described as being a Caucasian, 5 feet 4 inches tall and approximately 140 pounds, but testimony established that both J.S. and S.W. had given more detailed descriptions of the woman to the investigating officers, and that S.W. spent three hours describing the woman to a police sketch artist. Officer O’Con-nor also testified that immediately after the assaults occurred, the police received numerous reports of auto thefts and thefts of purses and wallets from autos on the southwest side of Chicago. Although many of the reports did not contain a description of the offender, or contained descriptions not fitting defendant or Cicla, in some of the cases witnesses reported that the thefts were committed by a male and female of the same general descriptions as given of the male and female involved in the sexual assaults.

Within a few weeks of the assaults, the police conducted lineups, but no identifications were made. Officer O’Connor believed that there might be a connection between some of the auto thefts and the sexual assaults, and when he became actively involved in the investigation, he requested notification of any arrests of male-female “teams.” Defendant and Cicla were arrested on the southwest side of the city in possession of a stolen vehicle. At the time of the arrest a stolen wallet was found on the back seat and, a short time later, a large bag full of purses and wallets which had been reported stolen was found in the trunk. When O’Connor arrived at the police station, he learned that defendant was a male Caucasian, 37 years old, 5 feet 7 inches tall, 150 pounds with brown hair. These physical characteristics were sufficiently similar to the descriptions given by S.W. and J.S. of the assailants to give rise to a reasonable inference that defendant and Cicla were the assailants.

We are not persuaded otherwise by defendant’s argument that the victims’ descriptions were “inconsistent” with his appearance' because the victims did not mention his receding hairline or moustache. It is true that the failure of the victim to include a notable physical feature may affect the credibility of that description; however, minor discrepandes between the description and the appearance of the offender do not destroy the validity of the victim’s description. See People v. Thomas (1984), 121 Ill. App. 3d 883, 460 N.E.2d 402.

In the case at bar, S.W. told the police that the male abductor wore a blue bandana around his head, which may account for her failure to describe defendant’s hairline. The absence of any notation by J.S. of this feature is inconsequential, particularly since the lineup photographs contained in the record show defendant had only a modestly receding hairline at the time of his arrest. Further, although defendant maintains and offered the trial testimony of his sister that he had worn a moustache for several years, the temporal focus in probable cause assessments is the time of the arrest. Even if the victims had expressly stated, which they did not, that the male assailant was clean shaven, the importance of that characteristic would be negated by the six-month interval between the assaults and the arrest for purposes of probable cause. The absence of facial hair in the victims’ descriptions was a matter for consideration by the jury in its evaluation of the credibility of the witnesses and the weight to be given to their identifications of defendant. However, this alleged inconsistency does not support defendant’s argument that the police lacked probable cause to believe he committed the offenses.

The totality of facts and circumstances, as described above and known to the police at the time of the arrest, provided the arresting officers with sufficient probable cause to detain defendant for purposes of a lineup and interrogation. We find no error in the trial court’s denial of defendant’s motion to quash his arrest and suppress his statements and the lineup identifications on the ground that probable cause for his detention was lacking.

Defendant contends that by preventing his appearance in court on the possession of a stolen vehicle charge, the police violated his fourth amendment right to a prompt judicial determination of probable cause for his arrest for that offense. Defendant argues that the officers’ failure to take him to court as scheduled was not a “necessary delay” since the police had completed processing procedures for the possession of the stolen auto charge, and that his transfer to Area 3 instead was done solely to gather evidence against him on unrelated charges. He asserts that his statements and the lineup identifications were products of this fourth amendment violation and should have been suppressed. Defendant bases his contention on Gerstein v. Pugh (1975), 420 U.S. 103, 43 L. Ed. 2d 54, 95 S. Ct. 854. We disagree.

In Gerstein, the United States Supreme Court held that the fourth amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest. (Gerstein v. Pugh, 420 U.S. at 114, 43 L. Ed. 2d at 65, 95 S. Ct. at 863.) In conformance with Gerstein, section 109 — 1(a) of our criminal code provides that “[a] person arrested without a warrant shall be taken without unnecessary delay before the nearest and most accessible judge in that county, and a charge shall be filed.” Ill. Rev. Stat. 1985, ch. 38, par. 109-1(a).

The Illinois Supreme Court has held that a delay in presentment to a judge does not render a statement made during this interval inadmissible, but is a factor to be considered in determining the voluntariness of the statement. (People v. Brooks (1972), 51 Ill. 2d 156, 281 N.E.2d 326.) It is only when the statements are involuntary that they must be excluded. If the defendant meets his burden of showing actual and substantial prejudice as a result of the delay, the burden shifts to the State to demonstrate the reasonableness or necessity of the delay. People v. Dees (1981), 85 Ill. 2d 233, 422 N.E.2d 616.

In People v. Pendleton (1982), 104 Ill. App. 3d 1104, 433 N.E.2d 1076, and People v. Smith (1990), 203 Ill. App. 3d 545, 561 N.E.2d 252, the courts held that because the defendants’ initial arrests for traffic violations were clearly based on probable cause, the subsequent lineup identification by a rape victim (Pendleton) and the confession of murder (Smith) were admissible against them at their trials. The court in People v. Gomez (1986), 147 Ill. App. 3d 928, 498 N.E.2d 767, held that requiring a defendant lawfully in custody for a traffic offense to appear in a lineup did not implicate any fourth amendment rights, even though the police did not advise the defendant that he had a right to post bail on the traffic warrant. In People v. Littleton (1988), 175 Ill. App. 3d 105, 529 N.E.2d 700, the court held that it was proper for the police to complete their total investigation prior to bringing the defendant before a magistrate approximately 30 hours later. In People v. Martin (1984), 121 Ill. App. 3d 196, 459 N.E.2d 279, the defendants claimed that the police deliberately delayed filing charges and taking them before a magistrate for the purpose of conducting lineups. The court held that conducting lineups for investigatory purposes prior to a preliminary hearing does not necessarily constitute law enforcement abuse. The court noted that Gerstein was concerned with the serious consequences of extended restraint of liberty following arrest, and that holding the defendants for only 24 hours did not constitute prolonged detention. People v. Martin, 121 Ill. App. 3d at 209.

In the instant case, defendant’s motion to suppress his statements, on the basis that they were involuntary, and the lineup identification, on the ground of improper suggestivity, was heard and denied, as was his motion for rehearing. Defendant abandoned his assertion that the lineup was improperly suggestive; and the trial court’s ruling that his statements were voluntary was affirmed on appeal in People v. Smith (1990), 199 Ill. App. 3d 839, 557 N.E.2d 596. A later hearing was also held on defendant’s motion to quash his arrest and suppress evidence.

In a thorough statement of its findings of fact and law, the trial court expressly found that the police had sufficient probable cause to arrest defendant for possession of a stolen vehicle, theft and a traffic offense. The court further-ruled, and we agree, that the police had probable cause to detain defendant in connection, with the sexual assault cases. Although the burden of showing prejudice was on defendant, the court noted that the testimony of Officer O’Connor indicated that a lineup would have been held prior to defendant’s scheduled appearance in court, if it had been possible to assemble a group of persons with characteristics sufficiently similar to defendant and Cicla to constitute “fair” lineups, but that due to the lateness of the hour, it was not possible to do so. Finally, the court held that the delay in taking defendant for a judicial determination of probable cause on the possession charge was not unreasonable and did not constitute a violation of Gerstein. The court’s ruling is amply supported by the record and case law.

Defendant additionally contends, however, that by preventing him from appearing in court on the possession charge, the police intentionally “suspended his ability to invoke his right to counsel.” Defendant argues that if he had been taken to court, he could have exercised his fifth amendment right to counsel by accepting the attorney the court would have been required to appoint for him (Ill. Rev. Stat. 1985, ch. 38, par. 109 — 1(b)(2)), and that the appointment of counsel would have prevented the police-initiated interrogation which culminated in his confession. We find no merit in defendant’s position. We have already ruled that because the police had probable cause to detain him, their holding of him beyond the court call for the purpose of conducting a lineup was not unlawful.

Moreover, the record establishes that defendant was advised of his right to counsel twice before the time he was to appear in court on the possession charge and at least five times prior to his statement to the assistant State’s Attorney. On each occasion, defendant declined counsel. Indeed, defendant’s testimony on direct examination at the suppression hearing does not indicate that he utilized his telephone privilege to call an attorney or that he asked his family to secure counsel for him; he merely requested that his mother come to court with bond money.

Defendant’s lengthy criminal history evinces his familiarity with the criminal justice system, including a knowledge of his constitutional rights. In this matter, defendant chose not to exercise his right to counsel. Defendant was given the opportunity to obtain counsel prior to both the probable cause hearing and his statements (see People v. Smith (1990), 199 Ill. App. 3d 839, 557 N.E.2d 596), but he voluntarily waived his right to counsel.

The Court in Gerstein held that a probable cause hearing is not a prerequisite to prosecution by information nor will a subsequent conviction be vacated on the ground that the defendant was detained without a determination of probable cause. (Gerstein v. Pugh, 420 U.S. at 119, 43 L. Ed. 2d at 68, 95 S. Ct. at 865.) The Court reasoned that the probable cause hearing is not a “critical stage” in the criminal justice process, and may be conducted before a judicial officer in an informal, nonadversarial hearing, at which appointment of counsel is not required. (Gerstein v. Pugh, 420 U.S. at 120, 43 L. Ed. 2d at 69, 95 S. Ct. at 867.) Thus, although Illinois provides for the appointment of counsel for an indigent defendant at the probable cause hearing, that statutory provision does not derive from a constitutional mandate. Defendant suffered no violation of his fifth amendment right to counsel.

Defendant next contends that he was denied a fair trial by the admission of prejudicial evidence of other crimes, in contravention of the court's order limiting such evidence to the issue of identity. Specifically, defendant argues that the “vivid and gruesome” testimony of J.S. regarding various “brutal” and “perverted” acts of criminal sexual assault to which she was subjected, but to which S.W. was not, portrayed her assailants as “absolutely depraved” and thus served only to prejudice and inflame the jury against defendant.

Generally, evidence of other crimes is inadmissible if it has no relevance except to show the defendant’s propensity to commit crime. (People v. Tiller (1982), 94 Ill. 2d 303, 447 N.E.2d 174.) The underlying rationale for excluding such evidence is not that it has no appreciable probative value but that it has too much. (People v. Kimbrough (1985), 138 Ill. App. 3d 481, 485 N.E.2d 1292.) Evidence of other crimes is admissible, however, if it is relevant for any purpose other than to show the defendant’s character or propensity to commit crime (People v. McKibbins (1983), 96 Ill. 2d 176, 449 N.E.2d 821), including, but not limited to, modus operandi, identity, motive, intent, common scheme or design, or placing defendant in proximity to the place of the crime (see generally People v. Kimbrough, 138 Ill. App. 3d at 486-87). The admission of evidence is a matter within the discretion of the trial court, and its rulings will not be disturbed absent a clear showing of abuse of that discretion. People v. Kimbrough, 138 Ill. App. 3d at 490.

The extensive number of glaring similarities in the crimes, not necessary to restate here, demonstrates that there was more than sufficient evidence that they were committed by the same persons. Further, we believe that, overall, the testimony of J.S. was proper. For example, the testimony that when defendant confronted J.S. in the alley, he threatened that if she screamed he would “cut her up in tiny pieces” was admissible both because S.W., too, was held at knife-point when abducted and during much of the time of her captivity, and also because it was necessary to explain how defendant and Gicla caused J.S. to enter the car. In other instances, it would have been difficult, if not impossible, to excise details and still present a coherent, chronological account of the crimes committed against J.S. and their similarity to the crimes committed against S.W. However, even assuming error in the introduction and admission of portions of the testimony of J.S., any such error is harmless beyond a reasonable doubt. Indeed, the evidence against defendant is so overwhelming that there is no reasonable possibility that the jury could have reached a different verdict.

Defendant also contends that the prosecutors engaged in misconduct during closing argument. He maintains that the cumulative effect of this misconduct denied him a fair trial.

In general, prosecutors are given wide latitude in their closing arguments, the only requirement being that the argument is based on the evidence or reasonable inferences from it. (People v. Morgan (1991), 142 Ill. 2d 410, 452-53, 568 N.E.2d 755.) Allegations of prosecutorial misconduct are to be reviewed in the context of the entire closing arguments of both the State and the defense. (People v. Morgan, 142 Ill. 2d at 453.) Where remarks by the prosecutor are provoked or invited by defense counsel, they will not be held improper. (People v. Lyles (1985), 106 Ill. 2d 373, 478 N.E.2d 291.) Even improper comments, however, will not serve as a basis for reversal unless they were so egregious and prejudicial that they constituted a material factor in the defendant’s conviction, i.e., that without them the verdict likely would have been different. People v. Morgan, 142 Ill. 2d at 453.

In the case at bar, no objections were made to the allegedly improper statements at trial, nor were objections to the prosecutor’s argument raised in a post-trial motion. It is well settled that the failure to object at trial to allegedly improper remarks made by the State or to raise those objections with reasonable specificity in a post-trial motion normally constitutes a waiver of any error on appeal. (People v. Smith (1985), 139 Ill. App. 3d 21, 486 N.E.2d 1347.) However, even if not waived, our review of closing arguments discloses no basis for reversal.

Defendant asserts that the prosecutor exaggerated the identification evidence by characterizing S.W.’s memory of defendant as being like a “snapshot” which stored a picture of his face away forever, and by commenting that both S.W. and J.S. had recurring visions of defendant. Defendant argues that this was a “gross distortion” of the testimony because neither S.W. nor J.S. mentioned defendant’s most prominent facial characteristic, his moustache. Defendant made the identical argument in his appeal from his convictions of aggravated sexual assault of J.S. The fifth division found that the prosecutor’s remarks were allowable inferences that could be drawn from the evidence. We agree with that determination. The only evidence presented that defendant wore a moustache at the time of the crimes was the testimony of defendant’s sister that he had worn a moustache for several years. In contrast, substantial evidence was introduced on the issue of the victims’ identification of defendant. Testimony established that both S.W. and J.S. gave similar descriptions of the male assailant and that the descriptions fit defendant. Also, both women made immediate lineup identifications of defendant. In the case of S.W., Detective O’Connor testified that the moment she viewed the lineup assemblage, prior to any formal lineup procedures, she began shaking and crying, and pointed to defendant, saying “that’s him.” The State’s remarks were a fair characterization of the evidence relating to the victims’ ability to identify defendant.

Defendant also argues that the prosecutor misstated the function of the jury and thereby diminished the presumption of innocence. He quotes a passage from the State’s rebuttal argument in which the State remarked that when S.W. was abducted, she was alone, but that in court she was safe because the jurors, not “as people alone anymore” but as a unit, had the power to hold defendant responsible for what he did. He maintains that by these remarks the State mischaracterized the jurors as advocates for and defenders of the victim. Again, a similar argument was made and rejected in defendant’s previous appeal. (People v. Smith, 199 Ill. App. 3d at 855.) We do not believe the State’s comments were a perversion of the nonpartisan nature of the jury, nor did they diminish the presumption of innocence. Rather, the argument read in its entirety was a permissible urging of the fearless administration of justice. People v. Stiff (1989), 185 Ill. App. 3d 751, 542 N.E.2d 392.

Finally, defendant claims that a portion of the prosecutor’s argument in which he stated that S.W.’s life had changed since the crimes and that “everything that was nice turned bad” was so prejudicial as to be plain error. Defendant argues that this argument had no relevance except to elicit the jurors’ sympathy.

All of the cases cited by defendant involved remarks relating to the victims’ needs for psychiatric therapy as a result of the sexual assaults committed upon them. Further, in each case reversal was based on cumulative errors where the evidence was closely balanced. Those cases are clearly inapplicable to the case at bar.

In People v. Tannahill (1987), 152 Ill. App. 3d 882, 504 N.E.2d 1283, the court held that a reference that the victim was traumatized as a result of the sexual assault was a reasonable inference from the evidence presented at trial. In the case sub judiee, the jury heard evidence that the victim was abducted at knifepoint and held captive for 12 hours, during much of which time she was tied and blindfolded, subjected to the running of a knife up and down her body and to repeated sexual assaults of varying types. We find defendant’s argument that the jury convicted him, “not because it was persuaded by the evidence that no doubt of his guilt existed, but because it did not want to aggravate her suffering by finding [him] not guilty,” incredible. Sympathy for S.W. was not evoked by the State’s remarks, but rather by the heinous nature of the crimes and the overwhelming evidence that defendant committed those crimes.

For the reasons stated, defendant’s conviction is affirmed.

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.


author: JUSTICE JOHNSON

text:
    LOIS HAMROCK, Plaintiff-Appellant, v. DIANE K. HENRY, Adm’r of the Estate of Marvin D. Henry, Deceased, et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—90—0869
    Opinion filed November 21,1991.

      Michael W. Rathsack, of Chicago (Montgomery W. Mackey, of counsel), for appellant.
    Hinshaw & Culbertson, of Chicago (D. Kendall Griffith, Debra S. Davy, and Bruce L. Carmen, of counsel), for appellees.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Lois Hamrock, appeals from the jury verdict, entered in the circuit court of Cook County, in favor of defendants, Diane K. Henry, administrator of the estate of Marvin D. Henry, deceased, and Eye Associates, S.C., a corporation. Plaintiff alleged that Dr. Henry and his professional corporation negligently failed to diagnose and treat her condition and that she was rendered blind in her right eye as a result of their negligence.

The issues brought on appeal are (1) whether the jury’s verdict was against the manifest weight of the evidence; (2) whether the trial court erred when, it allowed defendants to introduce evidence of plaintiff’s informed consent; and (3) whether the trial court committed reversible error when it admitted evidence that plaintiff was receiving collateral source payments in the form of a pension.

We affirm.

This matter arose out of medical treatment administered to plaintiff by Dr. Marvin D. Henry. Prior to the trial, plaintiff moved in limine to bar the admission of any evidence that she was receiving collateral source payments from her pension plan. The court granted plaintiff’s motion as to collateral sources without objection. During defendants’ opening statement, defense counsel mentioned that plaintiff “chose to seek an early pension which she received.” Plaintiff objected, however, and her objection was overruled.

During the trial, plaintiff testified that she began to experience problems with her vision in 1976. Plaintiff stated that in 1977 she was examined by Dr. Henry, who informed her that she had a cataract in her right eye. Plaintiff testified that she also visited Dr. David Orth in 1980 and he confirmed Dr. Henry’s diagnosis. Plaintiff stated that she continued to see Dr. Henry, who monitored the development of the cataract.

Plaintiff also told the court that by March of 1981 she was only able to see shadowy figures through her right eye. Plaintiff stated that she visited Dr. Henry at that time and made arrangements with him to surgically remove the cataract. Plaintiff further testified that Dr. Henry discussed his intentions to implant a plastic lens in her right eye to replace the cataract-ridden lens. According to plaintiff’s testimony, Dr. Henry told her that she would have 20/20 vision after the surgery.

Plaintiff had the lens implant surgery at Ingalls Memorial Hospital in June 1981. Plaintiff testified that on the day after the surgery Dr. Henry informed her that she had a hemorrhage in her eye. The notes Dr. Henry wrote after plaintiff’s surgery indicate that, upon examination, he found there was a 30% level of blood in the anterior (front) chamber of plaintiff’s eye. Dr. Henry also made a notation indicating that plaintiff had a good “red reflex.” Plaintiff’s expert witness, Dr. Thomas Chalkley, testified that a “red reflex” is a reflection off of the retina which occurs when an ophthalmoscope is shined into the eye. Dr. Henry testified that the presence of a “red reflex” indicated to him that plaintiff’s retina was still intact. The retina is the area of the eye which “receives visual light rays.” Stedman’s Medical Dictionary 1226 (1982).

Plaintiff testified that after she returned home her right eye was bloodshot. Plaintiff told the court that she was only able to see bright lights through her right eye at that time. Plaintiff further testified that she was examined by Dr. Henry one week after the lens implant surgery. During the examination, Dr. Henry called a nurse in and said: “Look at this eye. It looks like she was punched in the eye.” Dr. Henry gave her eyedrops and advised the placement of warm compresses over her eye. Plaintiff also stated that the redness in her right eye subsided, but she was not able to see through that eye.

Plaintiff further testified that Dr. Henry later informed her that her vision was impaired by blood which had dried and caked on the back of her lens. He recommended that she undergo a eapsulotomy, a procedure which involves cleaning the back of the lens. (Stedman’s Medical Dictionary 220 (1982).) Plaintiff had the procedure performed by Dr. Henry at Ingalls Memorial Hospital in June 1981. Plaintiff testified that her vision was “worse” after the eapsulotomy, and that she was only able to see a faint light through her right eye when Dr. Henry shined an intense light into her eye. Plaintiff continued to see Dr. Henry until March of 1982, at which time he encouraged her to see another specialist.

Plaintiff then went to the University of Illinois Eye, Ear and Throat Infirmary in April of 1982, where she was examined by Dr. Thomas Salzano. Dr. Salzano performed an ultrasound test on plaintiff’s right eye. According to plaintiff’s testimony, Dr. Salzano told her the image of her right eye, generated by the ultrasound test, indicated that she was totally blind in her right eye due to a highly detached retina. Plaintiff further stated that she had “stabbing” and “burning” sensations in her eye during the summer of 1982. Dr. Salzano informed her that if the pain intensified her only option was to have her eye removed.

Plaintiff testified that she stopped working as a school teacher in November of 1982 as a result of her condition. She then applied for early retirement. Plaintiff saw Dr. Paul Knepper, who was referred to her by the Pension Board pursuant to a law which required an examination by a physician before an early retirement pension could be obtained. Plaintiff was granted early retirement in March of 1983. Dr. Knepper’s testimony revealed that he found plaintiff to have no vision ability or light perception in her right eye because her retina had detached.

During cross-examination, defense counsel asked plaintiff if she had been “examined on [her] own volition by the Pension Board so [that she] could get a pension.” Plaintiff objected to this question, however, and her objection was overruled. In addition, defense counsel asked plaintiff whether, “[i]n any event, [she] saw these doctors and she now [has a] pension.” Plaintiff objected to this inquiry, and the court sustained the objection and instructed the jury to disregard the question.

Dr. Thomas Chalkley testified as the expert witness on behalf of plaintiff. Dr. Chalkley stated that, in his opinion, Dr. Henry was negligent because he failed to comply with the requisite standard of care for ophthalmologists. Dr. Chalkley stated that on June 29, 1981, during the postoperative period subsequent to plaintiff’s first surgery, plaintiff’s right eye began to hemorrhage. He further stated that plaintiff’s vision should have improved as a result of the capsulotomy and that her failure to improve was a signal that something was wrong with the retina in her right eye. Dr. Chalkley also testified that the retinal detachment probably occurred after the capsulotomy. Dr. Chalkley opined that had the retinal detachment been repaired in December of 1981 plaintiff would have had at least a 75% chance of'regaining vision in her right eye.

Dr. Joseph Alfano testified as the expert witness on behalf of defendants. Dr. Alfano stated that plaintiff suffered a “NEECH” (nonexpulsive/expulsive choroidal hemorrhage) as a result of the lens implant surgery. Dr. Alfano opined that plaintiff suffered an expulsive choroidal hemorrhage as opposed to a nonexpulsive choroidal hemorrhage. An expulsive choroidal hemorrhage occurs when a blood vessel inside of the eye ruptures during surgery. The retina is then pushed forward by the blood pressure toward the surgical opening in the eye and the contents of the eye are expelled through that opening. Dr. Alfano maintained that a NEECH is not necessarily characterized by severe pain. Dr. Alfano told the court that the NEECH caused blood in the vitreous chamber of plaintiff’s right eye to burst into the anterior chamber of her eye, destroying her retina and filling her eye with blood.

Dr. Alfano opined that Dr. Henry’s initial failure to diagnose NEECH was not due to negligence because NEECH is a rare phenomenon. Dr. Alfano further testified that he thought Dr. Henry did not recognize the NEECH until after plaintiff’s capsulotomy and that his delay in diagnosing the NEECH did not make any difference because plaintiff’s condition was incurable. Dr. Alfano testified that the ultrasound test administered by Dr. Salzano revealed that the plaintiff’s retina was shattered and that plaintiff’s eye was full of “debris, *** blood, red blood cells, *** iron, *** hemacytrin, [and] pieces of the retina, *** [which] form[ed] a mass.” Dr. Alfano opined that the ultrasound image was consistent with a NEECH. Dr. Alfano also stated that Dr. Henry misinterpreted the significance of plaintiff’s “red reflex” and mistakenly concluded that her retina was intact. Dr. Alfano testified that the “red reflex” appeared because the blood in the eye was still oxygenated and, therefore, still red.

Dr. Chalkley contended that plaintiff did not have NEECH. He testified that plaintiff had no history of pain in her eye and that NEECH is very painful. Dr. Chalkley also maintained the ultrasound test revealed that plaintiff’s retina had detached. Dr. Chalkley further testified that a torn retina is caused by NEECH and the test did not reveal that plaintiff’s retina was torn.

During the trial, defendant introduced a consent form signed by plaintiff prior to the cataract surgery. Plaintiff objected to the introduction of the consent form into evidence. Plaintiff’s counsel pointed out that plaintiff did not consent to defendant’s failure to discover and treat a complication of the lens implant surgery. The court overruled plaintiff’s objection. However, the trial court interrupted defense counsel when it believed that the testimony concerning the consent form was not related to the issue of corroboration.

During closing arguments, defense counsel argued that plaintiff might not have experienced pain from the NEECH because she was under general anesthesia at the time the NEECH occurred, or because she was taking medication to allay pain at the time the NEECH occurred. Plaintiff did not object to this argument. The jury ruled in favor of defendants and this appeal ensued.

First, plaintiff alleges that the trial court’s verdict was against the manifest weight of the evidence, because the only competent evidence was that Dr. Henry failed to recognize and repair plaintiff’s detached retina. Defendants maintain that the jury’s verdict was not against the manifest weight of the evidence.

A court of review will only reverse a jury’s verdict where the verdict is' contrary to the manifest weight of the evidence. (Kupcikevicius v. Fitzgibbons (1976), 41 Ill. App. 3d 405, 412.) A verdict is against the manifest weight of the evidence when it is “palpably erroneous and wholly unwarranted, is clearly the result of passion or prejudice, or appears to be arbitrary, unreasonable and not based upon the evidence.” (Swaw v. Klompien (1988), 168 Ill. App. 3d 705, 715.) “When considering whether a verdict is contrary to the manifest weight of the evidence, a reviewing court must review the evidence in the light most favorable to the appellee.” (Swaw, 168 Ill. App. 3d at 715-16.) A jury is not required to accept the opinion of an expert witness when it concerns an ultimate issue in the case. (Harris v. Bethlehem Steel Corp. (1984), 124 Ill. App. 3d 449, 453.) It is within the province of the jury to draw conclusions from conflicting testimony. (Thiele v. Ortiz (1988), 165 Ill. App. 3d 983, 996.) A jury’s verdict will not be set aside merely because the jury could have made a different finding, because the court believes that the verdict is not reasonable (Kupcikevicius, 41 Ill. App. 3d at 412), or “because the jury could have drawn different inferences and conclusions from conflicting testimony.” Thiele, 165 Ill. App. 3d at 996.

Upon reviewing the evidence in the light most favorable to defendants, we find that the jury’s verdict was not against the manifest weight of the evidence. A review of Dr. Alfano’s testimony when considered in conjunction with the other evidence in the case supports his theory that plaintiff suffered a NEECH. The day after the lens implant surgery, Dr. Henry told plaintiff that she had suffered a hemorrhage. A NEECH is a hemorrhage. In addition, Dr. Henry noted that there was a considerable amount of blood in the anterior chamber of the eye on the day after the lens implant surgery. The presence of a substantial amount of blood in the anterior chamber of the eye is consistent with the occurrence of a NEECH. Dr. Alfano testified that when a NEECH occurs, blood bursts into the anterior chamber of the eye. In addition, Dr. Alfano placed considerable emphasis upon Dr. Henry’s reaction to the condition of plaintiff’s eye upon seeing her in his office one week following the surgery. At that time, Dr. Henry called his nurse in and stated: “Look at this eye. It looks like she was punched in the eye.” Dr. Alfano concluded that this statement by Dr. Henry indicated that he. was confronted with extraordinary postoperative bleeding. Furthermore, plaintiff testified that a bright light shined into her right eye following the lens implant surgery appeared faint. All of these facts are consistent with the jury’s finding that plaintiff suffered a NEECH.

Plaintiff’s contention that the jury’s finding was against the manifest weight of the evidence is erroneous. Plaintiff points to several factors and argues that they support Dr. Chalkley’s theory of retinal detachment and counteract Dr. Alfano’s theory. However, the jury had the authority to draw a conclusion from the conflicting testimony. The jury was not required to believe the testimony of plaintiff’s expert witness. See Harris v. Bethlehem Steel Corp. (1984), 124 Ill. App. 3d 449, 453.

In addition, plaintiff challenges the validity of defendants’ closing argument in which they argued that plaintiff may not have experienced pain the first several hours after surgery, at which time she was alleged to have suffered the NEECH, because she was either under general anesthesia or taking medication which would prevent her from feeling pain. Plaintiff did not object to this argument at trial. In addition, counsel has wide latitude to argue inferences from the evidence. The jury heard testimony that plaintiff was under general anesthesia during the surgery. Therefore, defendants’ inference that plaintiff did not experience any pain which might have accompanied her NEECH because she had taken medication was legitimate.

We will not set aside the jury’s verdict in this case. The verdict is not palpably erroneous, wholly unwarranted, clearly the result of passion or prejudice, arbitrary, unreasonable, or contrary to the evidence. (See Swaw v. Klompien (1988), 168 Ill. App. 3d 705, 715-16.) Accordingly, we find that the jury’s verdict was not contrary to the manifest weight of the evidence.

Next, plaintiff alleges that the trial court erred when it allowed defendants to introduce evidence of plaintiff’s informed consent in order to show that she consented to certain surgical risks, since informed consent was not in issue and the evidence was immaterial and prejudicial. Defendants maintain that the trial court did not abuse its discretion by admitting plaintiff’s surgical consent form into evidence.

The decision of whether to admit evidence is within the sound discretion of the trial court, and its decision will not be reversed absent a clear abuse of discretion. (First National Bank v. Porter (1983), 114 Ill. App. 3d 1, 14.) We have found that “evidence which is competent for one purpose does not become incompetent because the jury might improperly consider it in some other capacity for which it could not properly be admitted. The opponent of the evidence may, if he so wishes, ask for an instruction confining the evidence to its legitimate sphere; and if he fails to so act, he is deemed to have waived any objection he may have.” Eizerman v. Behn (1956), 9 Ill. App. 2d 263, 279-80.

In the instant case, we find that evidence of plaintiff’s informed consent was proper because the consent form had probative value apart from the issue of consent. The language of the consent form corroborates defendants’ theory of the case. The consent form advises that the possible consequences of lens implant surgery include blood in the eye, detachment of the retina, and total loss of vision.

Moreover, plaintiff never asked the court to instruct the jury on the limited purpose for which they could consider the exhibit. Plaintiff has waived her objection to the admission of the consent form because she failed to request a limiting instruction on the issues for which the jury could consider her consent form. See Eizerman v. Behn (1956), 9 Ill. App. 2d 263, 279-80.

Finally, plaintiff contends that the trial court committed reversible error when it permitted defendants to ask certain questions during cross-examination, after plaintiff had obtained a motion in limine barring the admission of evidence concerning the fact that she was receiving collateral source payments. Plaintiff first alleges that the trial court erred when it permitted defendants to mention during their opening statement that she “chose to seek an early pension which she received.” We find that the trial court did not commit reversible error when it allowed defense counsel to refer to plaintiff’s pension during defendants’ opening statement. The trial court’s admission of defendants’ assertion during their opening statement constituted harmless error. “The party asserting error must demonstrate how he was prejudiced, and absent a clear showing of prejudice, it will not be assumed by a court of review.” (Kyowski v. Burns (1979), 70 Ill. App. 3d 1009, 1018.) Plaintiff has failed to demonstrate that she was prejudiced by defendants’ opening statement.

Plaintiff also maintains that defendants should not have been permitted to ask during cross-examination whether she had been examined by doctors referred to her by the Pension Board so that she could obtain a pension, and whether she was examined by these doctors and received a pension as a result. Plaintiff objected to the latter question concerning her contact with physicians and her objection was sustained. However, plaintiff alleges that she was prejudiced because the jury heard the inquiry.

Plaintiff has correctly noted that Illinois recognizes the collateral source rule. The collateral source rule states that the amount of damages for a plaintiff in a civil action is not decreased by the amount of benefits received by said plaintiff from a source which is collateral to the wrongdoer. (Boden v. Crawford (1990), 196 Ill. App. 3d 71, 76.) The purpose of this rule is to prevent the jury from learning about a plaintiff’s collateral income because such knowledge could influence their verdict. (Boden, 196 Ill. App. 3d at 76.) However, this court has also ruled that “ ‘a party cannot complain that evidence which he put into the record is prejudicial to him[ ]’ ” (People v. Jenkins (1991), 209 Ill. App. 3d 249, 257, quoting Casson v. Nash (1978), 74 Ill. 2d 164, 172), and that “a [party] who procures, invites, or acquiesces in the admission of improper evidence cannot complain with respect to the admission of said evidence.” Jenkins (1991), 209 Ill. App. 3d at 257.

We find that the trial court did not err with respect to inquiries concerning plaintiff’s early pension made by defendants during their cross-examination of plaintiff. The trial court properly found that plaintiff had already “opened the door” to questions concerning her pension when she testified that Dr. Knepper was a physician to whom she was referred by the Pension Board. Accordingly, we rule that defendants’ references to plaintiff’s pension do not constitute reversible error.

For the aforementioned reasons, we affirm the decision of the trial court.

Affirmed.

LINN and McMORROW, JJ., concur.