author: JUSTICE COUSINS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARL WILLIAMS, Defendant-Appellant.
    First District (5th Division)
    No. 1—89—1850
    Opinion filed August 27, 1993.
    Rehearing denied November 24, 1993.

      Rita A. Fry, Public Defender, of Chicago (Mary C. Arundel, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE COUSINS

delivered the opinion of the court:

Defendant, Carl Williams, was charged with attempted murder, aggravated battery, aggravated battery of a child, and cruelty to children. Following a jury trial, defendant was convicted of attempted murder and was sentenced to a 60-year imprisonment term at the Illinois Department of Corrections. Defendant appeals.

The issues presented for review are: (1) whether the State failed to provide race-neutral reasons for excluding two African-Americans from the venire; (2) whether the State’s cross-examination of defendant regarding information he reportedly gave to a probation officer about employment and also regarding what he allegedly told a friend about the child’s injuries constituted error; (3) whether the trial court erred by limiting defendant’s cross-examination of the victim’s mother about Department of Children and Family Services (DCFS) neglect charges against her; (4) whether the trial court erred in allowing evidence of prior injuries to the victim’s sister; (5) whether the trial court abused its discretion by refusing defendant’s request for a continuance; (6) whether certain alleged discovery violations denied defendant a fair trial; (7) whether it was error for a State witness to testify about observing defendant lift a man and throw him down; (8) whether the State’s rebuttal closing argument constituted error; (9) whether the trial court erred in allowing a physician to testify that the injuries sustained by the child were consistent with child abuse; (10) whether the trial court properly denied defendant’s motion to suppress statement; (11) whether the trial court erred by imposing a 60-year sentence; (12) whether the cumulative effect of errors deprived defendant of a fair trial; and (13) whether defendant was proven guilty of attempted murder beyond a reasonable doubt.

We reverse and remand for a new trial.

Background

On the morning of July 24, 1987, paramedics transported two-year-old Earnest Henry (Ernie) to the emergency room of Evanston’s St. Francis Hospital. There, Dr. Aguilara, the emergency care doctor, noted that Ernie was comatose and suffering from a serious head injury. Dr. Aguilara testified that he suspected child abuse and did not expect Ernie to live.

Later that day, Ernie was taken to Children’s Memorial Hospital, where he was examined by Dr. McClone, chief of the pediatric surgery department. He found Ernie’s condition to be extremely critical. Ernie’s brain was pouring into his neck and spinal column. Dr. McClone opined to police officers that Ernie’s condition was more than child abuse because he did not expect Ernie to survive.

Ernie was comatose for six weeks and remained at Children’s Memorial Hospital for three months during which he endured numerous operations. Upon release from this hospital, Ernie was admitted to the Rehabilitation Institute of Chicago, where he stayed for eight months. When he was released, Ernie was paralyzed on his left side. The doctor from the Rehabilitation Institute testified that Ernie’s injuries were consistent with someone of superior strength taking Ernie’s head and slamming it into the floor with great force.

Marie Henry (Marie), Ernie’s mother, testified that she awoke at 7:45 a.m. on July 24, 1987. Defendant, her live-in boyfriend, and Ernie were already up. She testified that Ernie appeared to be in a daze. She tried to talk to him but he did not understand. She heard three pounding noises while she was in the shower.

Dee Humes (Humes), who lives below Marie, testified that she awoke around 6:45 a.m. on July 24, 1987. She heard Marie’s shower around 7:45 a.m. and then heard thumping coming from Marie’s bedroom. Twenty minutes later, Humes went to Marie’s apartment to investigate. As the door was ajar, she could see Ernie lying facedown on the floor with his eyes going back in his head. He made no movement or noises. She saw defendant attempt to wake Ernie by slapping him on his face. She told defendant that Ernie was in a coma and that he should call an ambulance. Defendant did not respond and Humes left. She did not see Marie.

When Marie finished her shower, she saw defendant carrying Ernie, whose body was shaking and whose eyes had rolled into the back of his head. Marie called an ambulance, paramedics arrived, and Marie accompanied Ernie to the hospital. Defendant went to the hospital later. There, a police officer read defendant and Marie their rights. Both said they understood their rights and agreed to speak to the officer. Marie also talked with detectives and Assistant State’s Attorney Mondello (Mondello).

Chicago police officer Warren Seyferlich (Seyferlich) went to St. Francis Hospital around 11:30 a.m. on July 24, 1987. He spoke with hospital staff and then contacted his supervisor. Seyferlich spoke with Marie and defendant in the family waiting room. Both said they did not know what had happened to Ernie. Sergeant Jones (Jones) arrived and read defendant his rights. Defendant said that he understood his rights and agreed to talk with Jones.

Detectives Ryan (Ryan) and Fitzgibbons (Fitzgibbons) arrived at the hospital and spoke with Jones and Dr. Aguilara. Ryan had a conversation with defendant around noon, and defendant said he had been living with Marie since March of 1987. Defendant told him that when he awoke that morning, he saw Ernie lying on the floor with his eyes rolled up into his head. He picked up the child, and when he saw that Ernie was not breathing, he gave him mouth-to-mouth resuscitation. He also rubbed Ernie with cold water and told Marie to call 911. Defendant said he had not struck or injured the child. Defendant said he had not seen anyone else strike the child. When Ryan told defendant about Ernie’s injuries, defendant said he had hit the child on the buttocks a few times the previous week. Ryan left to speak with Fitzgibbons.

Fitzgibbons had spoken with Marie and told Ryan what she said. The two then told defendant what Marie had said. Defendant then told them that on July 23, 1987, he, Marie, and the two kids had been watching television. When Ernie disturbed the television, defendant became angry, placed his hand over the child’s face, and shoved him down causing his head to strike the floor. Defendant said that he also struck Ernie with a belt and his fist, and that he disciplined the child in a like manner almost every day since defendant had moved in with Marie.

Defendant was eventually transported to Area 6, where Ryan read him his rights and talked with him around 6 p.m. After each right was read defendant said he understood. Defendant reiterated much of what he had said at the hospital with some additions: because Ernie had bothered the television and was making a mess of his spaghetti, defendant hit him in the head with a remote control. He then pushed Ernie to the floor by placing his hands over Ernie’s face, causing the boy to fly backwards and strike his head on the floor. After the kids had gone to bed, defendant checked them around 10:30 p.m. and found that Ernie was not in the position in which he had been told to sleep. Defendant struck Ernie in the chest two or three times and ordered him into the washroom.

Defendant followed Ernie into the washroom, and when he saw that he had left the toilet seat down, defendant picked him up by his clothes and threw him to the floor three times, causing him to strike his head on the floor and on a cupboard. Defendant said Marie was present.

Defendant woke up on the morning of July 24, 1987, to find Ernie acting strangely, so he hit him on the buttocks and later rubbed cold water on him. Defendant said he had often disciplined Ernie in a like manner by using his hands, fists, and belts. Ryan contacted Assistant State’s Attorney Mondello.

Mondello reviewed the police reports and spoke with Ryan and Fitzgibbons. After speaking with Marie, she spoke to defendant. She advised him of his rights and defendant stated that he understood each of those rights. Mondello advised defendant that she was an assistant State’s Attorney, that she was working with the police, and that she was not his lawyer. Defendant said that he understood. Mondello spoke with defendant for a while, left the room, and returned. She told defendant she was going to write down what he said, and defendant agreed. Mondello left the room, wrote the statement, and returned.

Defendant read aloud the typewritten portion of the statement which contained the Miranda rights. Mondello then read the statement aloud and Ryan testified that defendant moved his eyes as if he were reading. Defendant made corrections and initialled each. All three signed their names to each page. Defendant’s statement was published to the jury.

Defendant testified that he suffers from hypertension and cataracts. He said he was blind from birth until age four or five when corrective surgery gave him partial sight. He has always been under doctor’s care for his eyes and had further surgery between the ages of 15 and 17. Defendant received eye care while in Cook County jail and had been scheduled for further surgery.

Defendant further testified that on July 23, 1987, Skip, Ernie and his sister’s biological father, picked the children up for a visit with him. They did not have any bruises when they left. When Skip returned the children later that night, they had a few minor cuts. Defendant said that the kids appeared to be afraid of something.

Defendant denied hitting Ernie with a remote control on July 23, 1987, but he admitted that he may have spanked him because he and his sister were hitting each other with their toys.

Defendant further testified that around 6 a.m., July 24, 1987, Ernie woke up and wanted some water. Defendant got Ernie the water and sent him back to bed. He did not strike Ernie. Later, Ernie was having a seizure so defendant patted him down with cold water and tried mouth-to-mouth resuscitation. He also tapped Ernie’s face in an effort to revive him. Defendant said he told Marie to call 911 and that Humes was present. Defendant denied pounding Ernie’s head into the floor on July 24, 1987, striking the child in the face, and slapping him.

Defendant testified that he saw Jones at the hospital and was transported to Area 6. There, Jones read him his rights but no one told him that he was under arrest. He stated that he asked Ryan if he could call his lawyer but Ryan told him that he did not need a lawyer because he was not under arrest. Defendant was permitted to call his brother the next day and told him to contact his attorney, who came to see defendant a week later.

Defendant also testified that Ryan told him that if he cooperated with the “lady reporter” he was about to bring into the room, then defendant would be allowed to go to the hospital. The “lady reporter” was the assistant State’s Attorney. He made no admissions to her but admitted signing the papers even though he was not able to read them because he did not have his glasses. Defendant further testified that he could not see anything on a piece of paper as far as lines are concerned, and he can sign his name only when the place is pointed out to him. The assistant State’s Attorney pointed out to defendant where he was to sign. Defendant said that she made corrections and that the statement which she read in court was not the one that she read to him that night at Area 6.

On cross-examination, defendant stated that, to read, he sometimes had to use a magnifying glass or get close to the paper. He said that he did not have a magnifying glass while at the county jail so his cell mate read Marie’s letters to him and helped him write letters to her.

Defendant admitted telling Mondello that he could read and write. He admitted that his signatures and initials appeared on the statement.

Defendant also admitted that he filed a pro se motion to reduce bond while he was in the county jail, but that it was prepared by a friend. In the motion, defendant did not mention that he worked as a security guard because he thought that it was unnecessary. He did state that he worked at the Victory Center, a church-operated store.

Defendant further testified that there was no doubt in his mind that Skip picked up the kids on the morning of July 23, 1987. He saw Skip when he brought the kids home and Ernie and his sister had bruises and scratches on them.

Officer Dianna Earnest of the Cook County Department of Corrections stated that she is the supervisor of the Old Records Division. She stated that her records reflected that Casley Wilson, also known as Skip or “Irscon [sic]” Wilson, was continuously incarcerated at Cook County jail from July 12, 1987, until his release on December 19,1987.

The jury found defendant guilty of attempted murder. The trial court sentenced him to 60 years’ imprisonment. This appeal follows.

Opinion

I

Defendant contends that the State failed to provide race-neutral reasons for excluding two African-Americans from the venire. We disagree.

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 the defendant demonstrates that the prosecutor exercised peremptory challenges to remove venirepersons in a discriminatory manner and that relevant circumstances create an inference of discrimination in the exclusion of those venirepersons based on race. People v. Edwards (1991), 144 Ill. 2d 108, 152-53, 579 N.E.2d 336.

A trial court’s determination is a finding of fact and will not be overturned on review unless it is found to be clearly erroneous. People v. Andrews (1993), 155 Ill. 2d 286, 293-94.

The exclusion of even one minority venireperson on account of race is unconstitutional and requires reversal of the conviction below. Andrews, 155 Ill. 2d at 294; People v. Harris (1989), 129 Ill. 2d 123, 175, 544 N.E.2d 347.

The selection of an all white jury in Cook County is a circumstance which a trial court can take notice of even if defense counsel fails to raise such an issue.

Here, the trial court, sua sponte, called a Batson hearing and asked why the two African-Americans (Stanley Prewitt and Thomas Landor) had been excluded.

A prosecutor’s explanation must demonstrate that the excluded veniremembers exhibited specific bias related to the particular cause to be tried. Andrews, 155 Ill. 2d at 294.

Stanley Prewitt (Prewitt) lived on the south side of Chicago. He previously lived on the west side. He was a single parent with a child in grammar school. He had recently been discharged from Arby’s where he had been employed for two years. Before Arby’s, he did maintenance work.

The State said that it excluded Prewitt because he had just been fired from his job at Arby’s, and that he was a single parent. The prosecutor further stated that Prewitt was excused for the aforementioned reasons “as this being a child abuse case.” The State contends that Prewitt had no visible means of support, had recently moved, and gave no indication of ever having been married.

Employment status has been recognized as a valid race-neutral explanation in the jury selection process. (People v. Mack (1989), 128 Ill. 2d 231, 241-42, 568 N.E.2d 1107.) However, the unemployment explanation must be viewed within the larger context of the entire selection process and whether or not there appears to be a pattern of racially motivated strikes. People v. Sims (1993), 249 Ill. App. 3d 246, 249-50.

Defense counsel compared Prewitt to a divorced white juror named Ronald Farrar (Farrar). Farrar had two children. He had lived in the northwest suburbs for 20 years and had been an electrician for most of his employed life. He had been working at his job for five years and had been in the trade for 24 years. One of his children worked and the other could not because of an ailment.

Where the State fails to exclude white veniremembers having the same characteristic as a black venireperson who was excused on the basis of that characteristic, an inference of purposeful racial discrimination is raised. (Andrews, 155 Ill. 2d at 295; Mack, 128 Ill. 2d at 239.) However, a characteristic deemed unfavorable in one prospective juror, and hence grounds for a peremptory challenge, may be, in a second prospective juror, outweighed by other favorable characteristics. Andrews, 155 Ill. 2d at 295; Mack, 128 Ill. 2d at 239.

We find no error in the trial court’s determination.

Thomas Landor (Landor), the other African-American who was excluded, lived on the west side of Chicago for 16 years at the current address and had been a cutter for Mars M&M’s for three months, before which he was a truck driver. He was married and his wife had been working at a record company for two years. He had two children, one in grammar school and the other in high school.

During the Batson hearing, the State indicated that Landor was excused because he lived on the west side of Chicago in an area that the State did not think was conducive to his hearing the case. The State was not pleased with Landor’s demeanor while he was answering the judge’s questions, and he began to “nod off” during the questioning of other prospective jurors.

Defense counsel compares Landor to Renee Arza, a white juror. Arza lived in the northwest suburbs, was a veterinary biologist, and had been at his present job for six months. He acquired a degree in Santo Domingo, resided in the United States for 23 years, and was single.

Absent clear error, a trial court’s determination will not be overturned. We find no clear error.

II

Defendant contends the State’s cross-examination of him regarding information he reportedly gave to a probation officer about employment and also regarding what he allegedly told a friend about the child’s injuries constituted error. We agree.

Where a witness, when asked as to the making of statements inconsistent or at variance with his testimony, neither directly admits nor denies the making of such statements, but states that he does not know or recollect, or gives any other answer not amounting to an admission, it is competent to prove the affirmative by way of impeachment. People v. Preston (1930), 341 Ill. 407, 419, 173 N.E. 383; People v. Bush (1963), 29 Ill. 2d 364, 372, 194 N.E.2d 356.

Therefore, it is improper for the prosecution to make unsupported insinuations of misconduct on cross-examination without producing supporting evidence in response to denials of misconduct. People v. Nuccio (1969), 43 Ill. 2d 375, 381, 253 N.E.2d 353; People v. Beringer (1987), 151 Ill. App. 3d 558, 561, 503 N.E.2d 778; People v. Giangrande (1981), 101 Ill. App. 3d 397, 405, 428 N.E.2d 503.

Where the guilt of the accused is not manifest, but is dependent upon the degree of credibility accorded by the trier of fact to his testimony, and there are substantial numbers of unperfected insinuations which, if considered, could seriously impeach the credibility of the defendant and his witnesses, justice dictates that defendant be given a new trial. (Nuccio, 43 Ill. 2d at 396.) The question is one of degree.

During cross-examination, the State asked defendant questions regarding his previous employment:

“Q. MR. VICTORSON [Assistant State’s Attorney]: Do you remember telling her [probation officer Linda Hynek] that you worked for Star Detective Agency at 813 East 75th Street for the past seven years as a security guard earning $8.50 per hour?
A. DEFENDANT: I might have.
Q. Do you remember her telling you that Star Detective Agency had no records of you ever working there?
A. She might have, I don’t remember.
Q. Were you able to explain to her how it was that you told her you had worked somewhere for seven-and-a-half years, that place had never heard of you?
MR. MILLER [Defense Counsel]: Object to the form of the questions relating double hearsay type testimony.
THE COURT: Objection overruled.
Q. MR. VICTORSON [Assistant State’s Attorney]: Were you able to explain to her how come those people never heard of you when you said you’ve been there so long?
A. DEFENDANT: I might have, but I do believe she had talked to the father-in-law previously.
Q. I’m talking about the Star Detective Agency?
MR. MILLER [Defense Counsel]: Once again, double hearsay, form of the question, they are going from Star Agency to Linda Hynek to the defendant, form of the question.
THE COURT: Cross-examination, he made certain statements here that he worked for Star Agency some time ago. This is certainly contrary, contradictory to that, proceed.
Q. MR. VICTORSON [Assistant State’s Attorney]: Did you tell Linda Hynek that you were working at a place called the Victory Center?
A. DEFENDANT: Yes.
Q. What was the nature of your duties with Victory Centers?
A. I was working in, workclothes store, carpet and furniture store.
Q. What was your job there?
A. I was working all over.
Q. What was the nature of your duties?
A. Whichever duty it was, working in the workclothes section, working in the carpet section or working in the furniture section.
Q. Selling?
A. Selling, carrying, moving, sweeping.
Q. You told Linda Hynek when you were interviewed for this probation report, you were a floor manager there, right?
A. Yes, I might have told her that.
Q. That wasn’t true wasn’t [sic] it?
A. I didn’t say that as [sic] wasn’t true.
Q. Now, yesterday, when you were talking about your work for the Victory Centers, you said that that was charitable work, right?
A. Yes.
Q. You were doing that out of the goodness of your heart?
A. Yes, and return I was given a donation.
Q. You told Linda Hynek you were working there, you were getting paid a salary on commission?
A. I was working there on a commission, before I started working that charity work, I told you I had to leave it alone for full-time job.
Q. For a full-time job?
A. Yes.
Q. Where was that full-time job at?
A. Which one?
Q. You left Victory Centers for?
A. Jewel’s.
Q. Jewel Food Store?
A. Yes.
Q. You never told Linda Hynek about that job, did you?
A. Yes.
Q. Your security guard work, whether it was for the Star Detective Agency who never heard of you or a private—
MR. MILLER [Defense Counsel]: Objection.
THE COURT: Sustained.”

The court erred in overruling the objection to the State’s questions asking defendant to explain why people never heard of him at the Star Detective Agency. Further, the State did not perfect the questioning. The court did sustain an objection after prolonged examination. Yet, this prolonged cross-examination with unperfected, improper questions and improper rulings diminished defendant’s credibility.

Instead of overruling the objection to this line of questioning, the court compounded the error by stating:

“[H]e made certain statements here that he worked for Star Detective Agency some time ago. This is certainly contrary, contradictory to that, proceed.”

Additionally, in response to other State questioning, defendant answered that he was a floor manager while working in a store where he was engaged in “Selling, carrying, moving, sweeping.” The State then retorted, “That wasn’t true wasn’t [sic] it?” Defendant answered that he did not say that it was not true. The State’s comments constituted error because no perfection was had regarding these questions. Also, no perfection was had when the State asked defendant about his employment at the Jewel Food Store: “You never told Linda Hynek [probation officer] about that job, did you?” Defendant answered “yes” to this question.

The State also conducted the following cross-examination:

“Q. MR. VICTORSON: [Assistant State’s Attorney]: Did you ever tell him [Tracy Miller — defendant’s friend] that it was Irscon [sic] Wilson who had inflicted these injuries on July the 23rd of ’87 that you were accused of?
A. DEFENDANT: I don’t recall.
Q. As a matter of fact, what you told Tracy Miller about it was that you don’t remember how these injuries occurred, isn’t that what you told Tracy Miller?
A. I don’t recall.”

The State cites People v. Moore (1973), 54 Ill. 2d 33, 37, for the proposition that only if a defendant denies making a statement is it incumbent upon the cross-examiner to offer evidence that such statement was made. The State asserts that defendant’s replying “I don’t remember” and “I might have” was not a denial, and thus, perfection of impeachment was unnecessary. However, the question itself implies the existence of a fact which has not yet been proven and, without perfection, diminished the credibility of the defendant and constituted error.

Ill

Defendant contends that the trial court erred by limiting his cross-examination of Marie regarding DCFS charges against her. We disagree.

Cross-examination should be directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities. (Davis v. Alaska (1974), 415 U.S. 308, 316, 39 L. Ed. 2d 347, 354, 94 S. Ct. 1105, 1110.) However, the latitude of inquiry is within the trial court’s discretion and will only be reversed where an abuse of discretion results in prejudice to the defendant. People v. Thompkins (1988), 121 Ill. 2d 401, 441-42, 521 N.E.2d 38.

Here, during cross-examination of Marie, defense counsel posited the following questions:

“Q. MS. HAYASHI [Defense Counsel]: And back in March of 1986, you were also charged with neglect by the Department of Children and Family Services?
A. MARIE HENRY: That was not—
MR. YICTORSON [Assistant State’s Attorney]: Objection.
THE COURT: What date was this?
Q. MS. HAYASHI [Defense Counsel]: March 29,1986.
THE COURT: The objection is sustained.
Q. MS. HAYASHI [Defense Counsel]: Well, two of your children are in foster care now, are they not?
A. MARIE HENRY: Yes, they are.
Q. And would that be Ernie?
A. Ernie and Denise.
Q. Are you going to be able to get those children back?
MR. VICTORSON [Assistant State’s Attorney]: Objection.
MS. WOLOSHIN [Assistant State’s Attorney]: Objection.
THE COURT: Sustained.”

This line of questioning was irrelevant and improper.

IV

Defendant contends that the trial court violated its motion in limine when it permitted the State to cross-examine defendant on the extent of Ernie’s sister’s injuries. We disagree.

Although the admissibility of evidence may depend upon whether the probative value of the evidence outweighs its prejudicial effect to the defendant, generally what is relevant is admissible. (People v. Monroe (1977), 66 Ill. 2d 317, 321-23, 362 N.E.2d 295.) Relevancy is established where the evidence offered tends to prove a fact in controversy or renders a matter in issue more probable. Monroe, 66 Ill. 2d at 321.

Applying this rule to the case at bar, we find that no violation occurred. The motion in limine restricted mention of possible chastisement which defendant inflicted on the victim’s sister. The testimony in question involved the State’s questioning of defendant about the kind of injuries he noticed on the victim’s sister after her real father (Skip or “Irscon [sic]” Wilson) allegedly returned them from a visit on July 23, 1987. Defendant’s defense was that Skip inflicted such injuries on both Ernie and his sister, and defendant testified on direct examination that he had observed injuries. Therefore, such testimony was relevant.

V

Defendant contends that the trial court abused its discretion by refusing defendant’s request for a continuance. We disagree.

Whether to grant a continuance is within the sound discretion of the trial court (People v. Young (1989), 128 Ill. 2d 1, 27, 538 N.E.2d 453), and reviewing courts will not interfere with the trial court’s grant or denial of a continuance absent clear abuse of discretion. People v. Collins (1985), 106 Ill. 2d 237, 281, 478 N.E.2d 267.

In reviewing the exercise of the court’s discretion, when a continuance is sought to secure the presence of a witness, reviewing courts must consider whether (1) the defendant has demonstrated a diligent effort to have the witness present, (2) the witness’ testimony is material and might affect the outcome of the case, and (3) defendant has been prejudiced in his right to a fair trial. People v. Sargent (1989), 184 Ill. App. 3d 1016, 1022, 540 N.E.2d 981.

Defendant did not demonstrate a diligent effort to secure these witnesses. During his motion for continuance, he stated that he had prepared, but never served, the subpoena meant for defendant’s brother. Further, defendant’s brother’s testimony was immaterial and would not have affected the outcome of the trial. Defendant wanted his brother to confirm that defendant was visually impaired and also to corroborate defendant’s assertion that because he had retained counsel on a pending, unrelated charge, he had instructed his brother to call counsel for this charge.

However, other witnesses, including defendant, testified to his impaired vision. Further, whether defendant had instructed his brother to call counsel was of no probative value.

VI

Defendant asserts that certain alleged discovery violations denied him a fair trial. We disagree.

Specifically, defendant asserts that the State purposefully failed to produce discovery letters which defendant had written to Marie while incarcerated, a bond motion filed by defendant while he was in jail, and statements made by defendant to his probation officer.

Supreme Court Rule 412(a) requires disclosure to the defense of intended witnesses, their written or oral statements or summarizations thereof, and any papers which the State intends to use or which were obtained from or belong to the defendant.

To establish a discovery violation which would warrant a new trial, a defendant bears the burden of establishing (1) that the evidence was favorable to him, (2) that the prosecutor failed to disclose the evidence after a specific request, and (3) that the evidence was material. People v. Blount (1991), 220 Ill. App. 3d 732, 745, 580 N.E.2d 1381.

Defendant has not met his burden. Generally, rebuttal evidence is not discoverable. In this case, the State asserts that its utilization of such evidence was contingent upon defendant’s testimony at trial. There was no failure to disclose after a specific request. Defendant testified that his cell mate helped him write those letters to Marie and that a friend helped him write his bail bond motion. The evidence was material because it reflected on defendant’s credibility.

VII

Defendant contends that it was error for a State witness to testify about observing defendant lift a man and throw him down. We agree.

“[A] defendant’s prior misconduct is not admissible for the purpose of establishing his bad character or propensity to commit illegal or immoral acts, because the prejudicial impact of such evidence outstrips its negligible probative value.” People v. Hendricks (1990), 137 Ill. 2d 31, 52, 560 N.E.2d 611.

Here, the State asked Humes whether she had ever seen a demonstration of defendant’s strength. The trial court overruled defendant’s objection and Humes testified that she saw defendant “pick up this gentleman and just put him down in the chair.” The prosecutor then rephrased the question in the following manner:

“Q. MR. VICTORSON [Assistant State’s Attorney]: And he picked him up and threw him down into [sic] chair?”

The prosecutor then rested. The question so expressed constituted error because it represented a bad act.

Further, we question the relevance of such an inquiry. Here, the victim was a two-year-old boy and defendant was a male adult. The probative value of this testimony is obscure, the prejudice clear.

VIII

Defendant contends that the State’s rebuttal closing arguments were prejudicial. We disagree. At issue is the State’s commenting on defendant’s failure to call certain defense witnesses.

Where defense counsel provokes or invites a response, defendant cannot complain that the State’s reply denied him a fair trial. People v. Lyles (1985), 106 Ill. 2d 373, 390, 478 N.E.2d 291.

During opening statement, defense counsel told the jury:

“Why do we caution you to listen very carefully to her [Marie’s] testimony and we want you to listen to the testimony. And the other witnesses that are going to talk about conversations that they’ve had with Marie Henry, when she told at least four different people already four different things.”

This did not materialize at trial. Hence, in rebuttal closing, the State indicated:

“In opening statement, you heard that you would be hearing from a family member that Marie said something different. Did you?”

Defendant’s objection was overruled. Defendant’s objection to this was premised on the fact that this family member (defendant’s brother) was the one who would testify in this regard. However, defendant’s brother did not testify. These comments were proper.

The second assertion of error arose from the following statements made by defense counsel during closing argument:

“And, also, if Carl’s statements as to his eye problems, the operations that he received, the doctors that attended him were not the absolute truth, these two experienced attorneys would have brought in either medical records of doctors who would have testified in rebuttal, gee, I don’t know this guy, Carl Williams, and I never, I never attended him or never operated on him when he was two-and-a-half or 15 or 16. That never happened because what Carl said as to his eye problems is the whole and absolute truth.”

In rebuttal, the State replied:

“Same thing with the doctors. Why didn’t we bring in his doctors to say it wasn’t true about his eyes? We heard the names of those doctors yesterday. And all we heard was a last name. Dr. Brunox (phonetic) or something like that. We are supposed to find him? They are his doctors. Why weren’t they here.”

These comments were legitimately responsive and, therefore, proper.

IX

Defendant contends that the trial court erred in allowing Dr. Aguilara to testify that he indicated on Ernie’s medical report that he suspected child abuse as being the cause of Ernie’s injuries. We disagree.

Expert testimony is proper only when the subject matter is of such a character that only persons with special skill or experience in a particular area are capable of forming a judgment regarding the applicable facts, and if the jury is competent to determine the facts at issue, expert opinion should not be admitted. People v. Perry (1986), 147 Ill. App. 3d 272, 275, 498 N.E.2d 1167.

Here, defendant stated that the doctor’s comments constituted a legal conclusion which invaded the province of the jury. However, child abuse was not an ultimate issue in this case. Unlike Perry, the doctor in this case did not testify as to the ultimate issue.

X

Defendant contends that the trial court erroneously denied his motion to suppress his statements. We disagree.

Specifically, defendant asserts that the trial court erred in denying his motion to suppress because he told the police that he wished to speak with his attorney and that he had retained counsel in an unrelated, pending case.

A reviewing court will not set aside a trial court’s ruling on a motion to suppress unless it is clearly erroneous. (People v. Clark (1982), 92 Ill. 2d 96, 99, 440 N.E.2d 869.) Nor will a court of review substitute its judgment when the evidence is conflicting, for it is within the jury’s province to determine the credibility of the witnesses, the weight to be given their testimony, and the inferences to be drawn from the evidence. People v. Akis (1976), 63 Ill. 2d 296, 298-99, 347 N.E.2d 733.

Defendant asserts that he asked for an attorney. However, Sergeant Jones testified that he spoke with defendant at the hospital and read him his rights. Defendant said that he understood his rights and agreed to speak to Jones. Later, at 6 p.m., at Area 6, Detective Ryan testified that he read defendant his rights again. After each right was read, defendant said that he understood and agreed to talk with the detective. Assistant State’s Attorney Mondello (Mondello) testified that she advised defendant of his rights and he stated that he understood each of these rights and agreed to talk. After Mondello wrote down defendant’s confession, she returned to him and asked him to read aloud the typewritten portion of the statement which contained the Miranda rights. Defendant obliged.

The only evidence adduced at trial which supports defendant’s claim is his own testimony. Other testimony indicated that at no time did defendant ask any of these three individuals for an attorney.

The question, then, is one of credibility of the witnesses. The record supports the trial court’s finding and the jury’s verdict supports the trial court’s denial of defendant’s motion to suppress.

XI

Defendant contends that his 60-year incarceration sentence was excessive and constituted an abuse of discretion because the trial court did not consider his rehabilitative potential. We disagree.

At issue is the following comment:

“As far as rehabilitation is concerned, I’ve always maintained there is very little rehabilitation anyplace in the penitentiary or in incarceration. Penitentiaries are for punishment, and that is what this for, punishment.”

Sentencing is a matter of discretion possessed by the trial court and, absent an abuse of that discretion, the sentence may not be altered on review. People v. Willingham (1982), 89 Ill. 2d 352, 364, 432 N.E.2d 861.

The trial court’s comment, while harsh, indicates, in effect, that it does not consider the penitentiary system to be rehabilitative of prisoners and that the reality is that persons who are sentenced to the penitentiary are being punished. The trial court has discretion relative to the punishment to be imposed. We find no abuse of discretion in this case.

XII AND XIII

Defendant contends that the cumulative effect of the errors deprived him of a fair trial. We agree. Defendant also contends that he was not proven guilty of attempted murder beyond a reasonable doubt.

The cross-examination of defendant regarding information he reportedly gave to a probation officer about employment and also regarding what he allegedly told a friend about the child’s injuries was erroneous and prejudicial. The testimony by the State’s witness about observing defendant lift a man and throw him into a chair was also erroneous and prejudicial. The principal charge in this case was attempted murder. The proof of this offense requires a specific intent to kill. Intent to do bodily harm is insufficient. The seriousness of the injury alone is insufficient. To prove attempted murder, the State must demonstrate that the defendant possessed the criminal intent to kill. (People v. Solis (1991), 216 Ill. App. 3d 11, 17, 576 N.E.2d 120.) A defendant’s specific intent may be inferred from the nature of the assault and surrounding circumstances. Solis, 216 Ill. App. 3d at 17.

Although the injuries were extreme in this case, we cannot say that, without the errors, proof of specific intent is overwhelming. Although the law does not require a perfect, error-free trial, the law does require that parties receive a fair one. People v. Szabo (1991), 144 Ill. 2d 525, 531, 582 N.E.2d 173.

Defendant urges in his myriad of arguments offered to justify a new trial that he has been prejudiced. (See People v. Albanese (1984), 102 Ill. 2d 54, 83, 464 N.E.2d 206.) The errors which occurred during the trial are connected with defendant’s contention that he was not proven guilty of attempted murder beyond a reasonable doubt.

Reviewing courts should not disturb criminal convictions unless the evidence is so improbable or unsatisfactory as to create a reasonable doubt of guilt. People v. Collins (1985), 106 Ill. 2d 237, 261.

The reasonable doubt standard should be applied in reviewing the sufficiency of the evidence in all criminal cases, whether the evidence is direct or circumstantial. People v. Pintos (1989), 133 Ill. 2d 286, 291, 549 N.E.2d 344.

On review, the question is whether,

“after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.

Without the errors which occurred in this trial (permitting a witness to testify to a bad act which demonstrated defendant’s strength when the victim was a toddler, coupled with erroneous court rulings and unperfected impeachment testimony about defendant’s employment history and what defendant reportedly said to a friend about the child’s injuries), we cannot say that the jury would have found defendant guilty of attempted murder beyond a reasonable doubt.

For the foregoing reasons, we reverse and remand for a new trial.

Reversed and remanded.

MURRAY and McNULTY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HOFFMAN PRESIDING JUSTICE JIGANTI,

license: Public Domain

text:
    DAVID R. PASQUALE, Adm’r of the Estate of Diane K. Pasquale, Deceased, for the Benefit of Samantha Pasquale, Plaintiff-Appellee, v. SPEED PRODUCTS ENGINEERING, Defendant-Appellee and Cross-Appellee and Third-Party Plaintiff-Appellee (F and B Manufacturing Company, Defendant-Appellant and Third-Party Defendant-Appellant; David R. Pasquale, Indiv. and as Adm’r of the Estate of Diane K. Pasquale, Deceased, Plaintiff and Cross-Appellant; Wesley Law, Special Adm’r of the Estate of Raymond Law, Deceased, Plaintiff).
    First District (4th Division)
    No. 1—91—1738
    Opinion filed August 26, 1993.
    Rehearing denied September 27, 1993.

      Johnson & Bell, Ltd., of Chicago (Thomas H. Fegan and Mindy Kallus, of counsel), for appellant F & B Manufacturing Company.
    Leonard M. Ring & Associates, P.C., of Chicago (Leonard M. Ring, William J. Jovan, and Leslie J. Rosen, of counsel), for appellees.
   JUSTICE HOFFMAN

delivered the opinion of the court:

Diane K. Pasquale died as a result of injuries she sustained on May 27, 1979, when part of the clutch mechanism of a race car struck her in the head as she and her husband, David R. Pasquale, were watching a drag race at the Great Lakes Dragway in Union Grove, Wisconsin. In addition to her husband, Diane was survived by her minor daughter, Samantha E. Pasquale.

As a result of the occurrence, David, both individually and as administrator of the estate of Diane, sought recovery against, among others, F & B Manufacturing Company (F & B), Speed Products Engineering (Speed), and Great Lakes Dragway, Inc. (Great Lakes). Prior to trial, Great Lakes settled the action brought against it. The cause proceeded to trial before a jury which retumed.verdicts against F & B and Speed and apportioned the damages on their contribution claims 30% against F & B and 70% against Speed. The trial court denied all post-trial motions and provided for certain setoffs against the verdicts by reason of the Great Lakes settlement. David, both individually and as administrator of the estate, and F & B have appealed.

Before addressing the issues on appeal, a brief recitation of the facts giving rise to this litigation is appropriate.

Speed is in the business of selling and distributing race car parts. F & B is in the metal fabricating business. In the late 1960’s, Speed engaged F & B to fabricate clutch housings (bellhousings). Originally, the bellhousings produced by F & B for Speed were made from aluminum but subsequently they were produced from one-quarter-inch hot rolled steel.

Peak Brothers (Peak), a company engaged in building chassis for race cars, purchased a steel bellhousing from Speed which had been produced by F & B. Peak installed the bellhousing in a race car that it built for Clayton Harris, a professional race car driver.

On May 27, 1979, David and Diane were spectators at a drag racing event at the Great Lakes Dragway. Harris was competing in the event driving the car built for him by Peak. As his car accelerated, the clutch mechanism located within the bellhousing broke apart. Pieces of the clutch penetrated the bellhousing and were propelled into the spectator area. One of the pieces struck Diane in the head with such velocity that she was killed instantly. David was seated next to her at the time.

The instant action was filed on July 18, 1979. After Great Lakes effectuated its settlement, David filed a fourth-amended complaint naming only F & B and Speed as defendants. For purposes of this appeal, we are concerned only with counts I, II, and III of that complaint. Counts I and II were wrongful death actions (see Ill. Rev. Stat. 1991, ch. 70, par. 1 et seq.) brought by David as administrator of Diane’s estate and grounded in allegations of strict product liability. Count I was brought against both F & B and Speed for the benefit of Samantha, as Diane’s next of kin. Count II was against Speed only and brought for the benefit of David as Diane’s surviving spouse. The manner in which counts I and II were pled was necessitated by the fact that recovery could not be had against F & B for David’s benefit because the action against F & B was not filed within the two-year limitations period of the Wrongful Death Act. (Ill. Rev. Stat. 1991, ch. 70, par. 2(c).) However, because Samantha was a minor, a wrongful death action against F & B for her benefit was not similarly barred. (Ill. Rev. Stat. 1991, ch. 70, par. 2(c); Wilbon v. D.F. Bast Co. (1978), 73 Ill. 2d 58, 382 N.E.2d 784.) Count III was an action by David, individually, against Speed only and brought on a theory of strict product liability seeking damages for emotional distress.

The case was tried before a jury on the fourth-amended complaint and the cross-claims for contribution brought by F & B and Speed against each other. F & B moved for a directed verdict on the wrongful death claim for Samantha’s benefit both at the close of David’s case and at the close of all of the evidence. The trial court denied the motions. Additionally, F & B moved for a directed verdict against Speed on Speed’s counterclaim for contribution. That motion was also denied. After all of the parties rested, the trial court refused to instruct the jury on David’s individual claim for emotional distress and, in effect, granted Speed a directed verdict on count III. After deliberating, the jury returned multiple verdicts which, as they relate to this appeal, read as follows:

“VERDICT FORM 1-A
As to the claim of the plaintiff, David Pasquale, for the benefit of Samantha Pasquale, we, the jury, find in favor of the plaintiff and against the defendants, F & B Manufacturing Company and Speed Products Engineering and assess plaintiff’s damages in the sum of $1,500,000.”
“VERDICT FORM II-A
As to the claims of the plaintiff, David Pasquale, as Administrator of the Estate of Diane Pasquale, for the benefit of himself, we, the jury, find in favor of the plaintiff and against the defendant, Speed Products Engineering and assess plaintiff’s damages in the sum of $150,000.”

F & B filed a post-trial motion requesting: a judgment notwithstanding the verdict in its favor and against David in his representative capacity for Samantha’s benefit or, in the alternative, a setoff of $861,789 against the judgment awarded for the benefit of Samantha by reason of the settlement with Great Lakes and a judgment notwithstanding the verdict in its favor against Speed on Speed’s claim for contribution. The trial court denied F & B’s motions for judgment notwithstanding the verdicts and granted F & B a setoff of $430,894.50 against the verdict rendered against it for the benefit of Samantha and further found that David’s share of the Great Lakes settlement would act as a full satisfaction of the verdict against Speed on the claim brought for his benefit.

David, individually and as administrator of the estate, also filed a post-trial motion requesting, inter alia, a new trial on the issue of damages only on the wrongful death claim brought for his benefit against Speed and an order reinstating his individual claim for emotional distress and a new trial thereon on the issue of damages only. The trial court denied David’s post-trial motion.

The issues on appeal are as follows: F & B claims error in the denial of its motion for judgment notwithstanding the verdict, the denial of its motion to dismiss Speed’s contribution claim, and the failure of the court to grant a setoff for the full amount of the settlement with Great Lakes. David claims error in the dismissal of his individual claim for emotional distress and seeks a new trial on the issue of damages only in the wrongful death action brought for his benefit.

We first address the issues raised by F & B.

The theory of F & B’s defense was that it did not design the bell-housing which it manufactured for Speed. F & B elicited evidence that Speed supplied the specifications, that F & B did not know how the part would be used, and that F & B was never asked to test the product. Further, F & B contends that David did not show that Speed’s specifications were obviously dangerous.

Compliance with the specifications provided by a third party is a defense in a strict product liability action unless the specifications were so obviously dangerous that no competent manufacturer would follow them. (Hunt v. Blasius (1978), 74 Ill. 2d 203, 384 N.E.2d 368; Loos v. American Energy Savers, Inc. (1988), 168 Ill. App. 3d 558, 522 N.E.2d 841.) However, a component part manufacturer can be strictly liable when an injury is attributable to a defect in the component part itself. (Thomas v. Kaiser Agricultural Chemicals (1980), 81 Ill. 2d 206, 407 N.E.2d 32.) This proposition is true regardless of whether the defect in the component causes it to malfunction or the design of the component renders it faulty. Thomas, 81 Ill. 2d 206, 407 N.E.2d 32.

David introduced testimony that the drawing that F & B received from Speed for fabricating the bellhousing was amateurish, that F & B’s employees made changes to the drawing, that the part was almost identical to one that F & B was making for another race car company, and that although Speed requested that the part be made from one-quarter-inch hot rolled steel, it was F & B that selected the grade of steel used. David’s experts, H. Boulter Kelsay, Jr., and Norris Yonker, testified that material selection is part of the design of a product. Charles Coakley, one of F & B’s employees, testified that there are different grades of hot rolled steel and some have greater strength and impact resistance.

Directed verdicts and judgments notwithstanding the verdict should be entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent of the motion, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) It is the jury’s function to weigh contradictory evidence, judge the credibility of the witnesses, and draw the ultimate conclusion as to the facts. (Finley v. New York Central R.R. Co. (1960), 19 Ill. 2d 428, 167 N.E.2d 212.) The jury’s conclusions relating to the issues of breach of duty, causation, damages, and other factual matters should not be set aside merely because different conclusions could be drawn. Finley, 19 Ill. 2d 428, 167 N.E.2d 212.

When the evidence in this case is viewed in its aspect most favorable to the plaintiff, it reveals a factual question as to F & B’s involvement in designing the bellhousing. The jury resolved that issue against F & B and this court cannot and will not usurp the jury’s function by reweighing the evidence on the issue. The trial court properly denied F & B’s motion for judgment notwithstanding the verdict.

F & B’s next argument concerns the denial of its motion for a directed verdict on Speed’s contribution claim and the denial of its post-trial motion relating thereto. At trial, F & B contended that the counterclaim was barred by both the statute of limitations and the statute of repose. The trial court denied the motion on both grounds. In its post-trial motion, however, F & B sought relief from the denial of its motion on statute of limitations grounds but sought no relief from the denial of the motion on statute of repose grounds. In this appeal, F & B argues that the trial court erred in denying its motion on statute of repose grounds; no issue has been raised as to the statute of limitations.

F & B’s argument on this question must fail for two reasons. First, by failing to raise the propriety of the trial court’s denial of its motion for a directed verdict on statute of repose grounds in its post-trial motion, F & B has waived the issue for purposes of appeal. (Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 415 N.E.2d 337.) Second, even if the issue was not waived, F & B’s argument is without merit. The statute of repose applicable to strict product liability actions is set forth in section 13 — 213(b) of the Code of Civil Procedure, which provides as follows:

“Subject to the provisions of subsections (c) and (d) no product liability action based on the doctrine of strict liability in tort shall be commenced except within the applicable limitations period and, in any event, within 12 years from the date of first sale, lease or delivery of possession by a seller or 10 years from the date of first sale, lease or delivery of possession to its initial user, consumer, or other non-seller, whichever period expires earlier, of any product unit that is claimed to have injured or damaged the plaintiff, unless the defendant expressly has warranted or promised the product for a longer period and the action is brought within that period.” (111. Rev. Stat. 1991, ch. 110, par. 13 — 213(b).)

The repose period contained therein is applicable to contribution actions premised upon the theory of strict product liability. Thompson v. Walters (1991), 207 Ill. App. 3d 531, 565 N.E.2d 1385.

In this case, the bellhousing F & B produced for Speed was sold to Peak on January 12, 1978, for use in a race car that Peak was building for Harris. Harris took possession of the car in December 1978. Speed’s claim for contribution against F & B was filed on February 2, 1988. F & B argues that the contribution claim is barred because it was filed more than 10 years after the sale of the bellhousing to Peak.

The argument necessarily rests upon the flawed proposition that Peak was the “initial user, consumer, or other non-seller” (111. Rev. Stat. 1991, ch. 110, par. 13 — 213(b)) of the bellhousing. A “seller” is defined in section 13 — 213(aX4) of the Code of Civil Procedure as “one who, in the course of a business conducted for the purpose, sells, distributes, leases, assembles, installs, produces, manufactures, fabricates, prepares, constructs, packages, labels, markets, repairs, maintains, or otherwise is involved in placing a product in the stream of commerce.” (111. Rev. Stat. 1991, ch. 110, par. 13 — 213(aX4).) Peak, as an assembler of Harris’ car and as the installer of the bellhousing, falls within the definition of a “seller.” Harris was the initial user, consumer, and nonseller to come into possession of the bellhousing. Harris acquired possession in December 1978. As such, the filing of Speed’s contribution claim against F & B on February 2, 1988, was within the 10-year period of repose.

The final issue raised by F & B on appeal involves the adequacy of the setoff granted by the trial court against the damages awarded for Diane’s death.

As indicated earlier, after the jury returned its verdicts in this case, the trial court granted F & B a setoff of $430,894.50 (50% of the value of the Great Lakes settlement) against the verdict rendered for the benefit of Samantha and further found that David’s $430,894.50 share of the settlement with Great Lakes would act to satisfy the $150,000 verdict rendered for his benefit against Speed.

F & B argues that by apportioning the setoff for the settlement in ratio to the distribution of the settlement proceeds, in effect, the trial court only granted a setoff of $580,894.50 as opposed to the full set-off required under section 2(c) of the Contribution Act. (111. Rev. Stat. 1991, ch. 70, par. 302(c).) David responds by arguing that if a full set-off of $861,789 were granted, Samantha would fail to realize the full $1.5 million of pecuniary loss sustained by her as fixed by the jury. David contends that such a result would unjustly enrich F & B and deprive Samantha of a substantial portion of her recovery upon a claim that was separate and distinct from his claim.

Sections 2(a) and 2(c) of the Contribution Act provide as follows:

“(a) Except as otherwise provided in this Act, where 2 or more persons are subject to liability in tort arising out of the same injury to person or property, or the same wrongful death, there is a right of contribution among them, even though judgment has not been entered against any or all of them.
(c) When a release or covenant not to sue or not to enforce judgment is given in good faith to one or more persons liable in tort arising out of the same injury or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide but it reduces the recovery on any claim against the others to the extent of any amount stated in the release or the covenant, or in the amount of the consideration actually paid for it, whichever is greater.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 70, pars. 302(a), (c).

In exchange for the payment of $695,000 in cash and certain future payments, Great Lakes received a release of all liability to David, both individually and as administrator of the estate of Diane K. Pasquale, deceased. The release document did not discharge the liability of F & B. The Great Lakes settlement was found to be in good faith by order of court entered on May 25, 1990. Although the actual release document states that it releases Great Lakes from all claims by David both individually and as administrator of the estate of Diane, the order of July 16, 1990, which distributed the proceeds of the settlement, leaves no question that the entire amount was distributed to David and Samantha as spouse and next of kin of the decedent under the provisions of the Wrongful Death Act (Ill. Rev. Stat. 1991, ch. 70, par. 1 et seq.) and nothing was distributed to David on any individual claim he may have had. The consideration paid for the release of Great Lakes had a present value of $861,789 as found by the order of July 16, 1990, and neither party has disputed either the good faith of the settlement or its value. That settlement distribution order found that David and Samantha were Diane’s surviving spouse and next of kin, respectively, and fixed their dependency upon her at 50% each. Based upon their equal percentages of dependency, the court distributed the proceeds of the settlement with Great Lakes equally to David and Samantha.

We believe that the trial court erred when it looked to the prior allocation of the Great Lakes settlement in determining the set-off to which F & B was entitled based upon that settlement. (Foster v. Kanuri (1992), 241 Ill. App. 3d 677, 608 N.E.2d 8.) There is no question that both Great Lakes and F & B were subject to liability in tort arising from the same wrongful death. The plain and unambiguous language of the Contribution Act provides that the consideration paid by Great Lakes for its good-faith settlement reduces the recovery against F & B on any claim against it by reason of that same wrongful death. (Ill. Rev. Stat. 1991, ch. 70, par. 302(c).) If, as David argues, a strict application of the setoff provisions of the Contribution Act will result in Samantha receiving less than a full recovery for her pecuniary loss as fixed by the jury, that circumstance will be as a result of David having had apportioned to him 50% of the proceeds of the Great Lakes settlement when a jury subsequently fixed his total damages at 9% of the total recoverable pecuniary loss suffered as a result of Diane’s death.

The fact that this case had to be presented to the jury as if there were two separate and distinct actions against Speed, F & B’s joint tortfeasor, due to the expired statute of limitations on the wrongful death action for David’s benefit against F & B, does not convert a single cause of action against Speed into two separate actions. The Wrongful Death Act does not create individual rights of action in favor of those for whose benefit an action under its terms may be brought. See Hall v. Gillins (1958), 13 Ill. 2d 26, 147 N.E.2d 352; Addison v. Health & Hospital Governing Comm’n (1977), 56 Ill. App. 3d 533, 371 N.E.2d 1060; In re Estate of Edwards (1982), 106 Ill. App. 3d 635, 435 N.E.2d 1379.

In this case, after the jury returned its verdicts in favor of David in his representative capacity against both F & B and Speed, they should have been combined into a single judgment for $1.65 million for which Speed and F & B would stand jointly and severally liable for $1.5 million and Speed only would stand liable for the remaining $150,000. Once that was accomplished, then the trial court should have granted a setoff of $861,789 against the joint portion of the judgment, leaving a total amount owed on the combined judgment of $788,211, for which F & B and Speed would be jointly and severally liable for $638,211 and Speed only would be liable for the remaining $150,000. Such a procedure would comply totally with the letter of the Contribution Act and F & B would receive the setoff to which it is entitled by reason of the Great Lakes settlement. On remand, the trial court shall first combine the verdicts against F & B and Speed into a single judgment and then grant F & B a setoff of $861,789 against the $1.5 million portion of that judgment for which it stands jointly and severally liable. It shall then order the remaining sums distributed pursuant to section 2 of the Wrongful Death Act (111. Rev. Stat. 1991, ch. 70, par. 2), taking into consideration the sums David already received pursuant to the order distributing the proceeds of the settlement.

In his cross-appeal, David, as administrator of the estate, requests that the jury’s award of “his” damages under the Wrongful Death Act be vacated and the matter remanded for a new trial on that issue only. If appropriate, a court has the power to grant a new trial restricted to the issue of damages only. (Hollis v. R. Latoria Construction, Inc. (1985), 108 Ill. 2d 401, 485 N.E.2d 4.) However, the assessment of damages is a factual question committed to the discretion of the jury. (Johanek v. Ringsby Truck Lines, Inc. (1987), 157 Ill. App. 3d 140, 509 N.E.2d 1295.) A court will not substitute its judgment on the adequacy of a damage award unless the jury’s determination on the issue is contrary to the manifest weight of the evidence. (Voss v. Tune (1984), 121 Ill. App. 3d 692, 460 N.E.2d 51.) To be against the manifest weight of the evidence, a jury’s award of damages must be clearly erroneous and unreasonable when examined in light of the facts and evidence in the case. (Gilman v. Kessler (1989), 192 Ill. App. 3d 630, 548 N.E.2d 1371.) As was noted in Barr v. Groll (1991), 208 Ill. App. 3d 318, 322, 567 N.E.2d 13, 16, “[a] verdict may be found contrary to the manifest weight of the evidence where the size of the award is the result of passion or prejudice [or] where the amount is palpably inadequate.”

The jurors heard the evidence relating to David’s pecuniary loss on the death of his wife. They were informed that he remarried 37 months after her death and were properly instructed that they could not award damages for his loss of society and sexual relations for any period after the date of his remarriage. We cannot find that fixing David’s pecuniary loss at $150,000 was against the manifest weight of the evidence. David’s attempt to argue the inadequacy of the jury’s award on this element of damage by a comparison to a damage award for loss of society in an unrelated case is wholly inappropriate. The propriety of an award of damages may not be measured by a comparison with verdicts in other cases. (Northern Trust Co. v. County of Cook (1985), 135 Ill. App. 3d 329, 481 N.E.2d 957.) Each verdict must be examined in light of the particular injury in a given set of circumstances with humble deference to the jury in making its determination. Lau v. West Towns Bus Co. (1959), 16 Ill. 2d 442, 158 N.E.2d 63.

The record in this case does not support the conclusion that, in fixing damages for David’s pecuniary loss for the death of his wife, the jury acted out of passion or prejudice or that the damages were clearly erroneous or unreasonable. We cannot say that the damages were clearly inadequate, and for these reasons, the trial court did not err when it denied David’s motion for a new trial on the issue of damages.

The final issue for review is the propriety of the trial court’s grant of a directed verdict in favor of Speed on David’s individual claim. Count III of the complaint was an action grounded in strict product liability seeking damages solely for emotional distress. Our supreme court in Woodill v. Parke Davis & Co. (1980), 79 Ill. 2d 26, 402 N.E.2d 194, held that strict liability should not be extended to include recovery for emotional distress and mental anguish. (See also Rahn v. Gerdts (1983), 119 Ill. App. 3d 781, 455 N.E.2d 807.) David argues that the right to recover damages for emotional distress in a strict product liability action should be governed by the same rules attendant to a plaintiff’s right of recovery in a negligence action. David contends that recovery in both negligence and strict product liability rests upon the same cornerstone of foreseeability of harm and, as such, there is no logical reason to differentiate between the type of damages that may be recovered solely based upon the plaintiff’s theory of recovery.

Were we writing on a clean slate, we would address David’s theory on its merits. However, we are foreclosed by our supreme court’s decision in Woodill because trial and appellate courts lack the authority to overrule the supreme court or to modify its decisions. Rickey v. Chicago Transit Authority (1983), 98 Ill. 2d 546, 551, 457 N.E.2d 1, 3.

For these reasons, the trial court was correct in directing a verdict at the close of the evidence on David’s individual claim.

Accordingly, we reverse the judgment of the trial court as it relates to the setoff granted to F & B and remand the cause for further proceedings consistent with this decision. We affirm the trial court in its denial of F & B’s motion for judgment notwithstanding the verdict, in its denial of F & B’s post-trial motion relating to the timeliness of Speed’s claim for contribution, in directing a verdict on David’s individual action for emotional distress, and in denying David’s motion for a new trial on the issue of damages.

Affirmed in part; reversed in part and remanded with directions.

CAHILL, J., concurs.

PRESIDING JUSTICE JIGANTI,

dissenting:

I respectfully dissent from the opinion of the majority on the matter of the setoff.

The trial court returned a verdict in favor of Samantha in the amount of $1,500,000 and in favor of David in the amount of $150,000. There previously had been a settlement, in round numbers, of $860,000. A judge of the circuit court found the settlement to be in good faith and apportioned the recovery on a 50-50 basis so that David and Samantha each received $430,000. At the conclusion of the trial, the trial judge determined the setoff as follows:

Verdict for Samantha $1,500,000
Setoff for settlement - 430,000
Judgment for Samantha $1,070,000
Verdict for David $ 150,000
Setoff for settlement 430,000
Judgment for David $ 0

The majority on appeal calculates the setoff as follows:

Verdict for Samantha $1,500,000
Verdict for David + 150,000
Total of verdicts $1,650,000
Setoff - 860,000
Judgment to be apportioned by $ 790,000 the trial court

The holding of the majority gives the first settling plaintiff a right in many cases to adversely affect a coplaintiff in either a wrongful death or a common law situation. For example, assume David settled in good faith with one defendant for $2 million and Samantha did not settle. A joint verdict of $1.5 million would result in the following calculation:

Verdict $1,500,000
Setoff 2,000,000
Judgment to be distributed to $ 0 Samantha and David

The matter might be somewhat obscured by the procedural peculiarities of the Wrongful Death Act. Assume David and Samantha had common law tort claims against the jointly and severally liable tortfeasors. Also assume the same factual setting as in the instant case, that is, that they each settled for $430,000,' then proceeded to trial against the remaining defendant and obtained judgments of $150,000 and $1,500,000. The judgments in that common law tort action would be the same as those entered by the trial court in this wrongful death case. I believe the results should be the same in a wrongful death or a common law situation.

The majority states that a wrongful death action is a “single cause of action” (252 Ill. App. 3d at 733) and notes that the Contribution Act provides that a good-faith settlement reduces the recovery “on any claim.” (Emphasis in original.) (252 Ill. App. 3d at 733, citing Ill. Rev. Stat. 1991, ch. 70, par. 302(c).) From this, the majority concludes that the entire verdict must be off set by the entire settlement. This reasoning carries the legal fiction of a single cause of action to an unreasonable conclusion. This reasoning is not necessary to prevent a double recovery, as is asserted by the defendant. Instead, the ultimate denouement of the majority’s conclusion is to subject the coplaintiff to fortuity, because if the plaintiff who settles receives more than a jury would give, the excess will be deducted from the recovery due the other plaintiff. I see nothing intrinsic in the Wrongful Death Act to warrant this result. Nor is the majority’s conclusion supported by logic. While there may be only one lawsuit, each of the parties has a separate right to recover for his or her pecuniary injury.

This concept is embodied in Illinois Pattern Jury Instructions, Civil, No. 31.09 (3d ed. 1992) (hereafter IPI Civil 3d). That instruction states that the plaintiff brings the action in a representative capacity but that the plaintiff represents the surviving spouse and the next of kin. It further states that “[t]hey are the real parties in interest in this lawsuit, and in that sense are the real plaintiffs whose damages you are to determine.” (IPI Civil 3d No. 31.09 (1992).) As with all other rights, the parties may compromise those rights and after those rights are compromised any recovery that party has against any other defendant will be reduced by what he or she has already received. This is patently clear in an action involving common law injury and should be no less clear in a wrongful death situation. An overcompensation by one settling plaintiff cannot diminish the recovery of any other plaintiff. It appears to me beyond cavil that this was not the legislature’s intent in a wrongful death situation any more than it would have been its intent in a common law situation.

The majority remands the $790,000 judgment to the circuit court for a hearing under section 2 of the Wrongful Death Act, which provides that the court shall distribute the amount recovered to the spouse and next of kin based on the percentage of the dependency of each person on the deceased. (111. Rev. Stat. 1991, ch. 70, par. 2.) The majority does not consider the previous order of the trial court dividing the setoff evenly as constituting the required hearing on the percentage of dependency. It is true that there is nothing in the record to suggest that a hearing was in fact held on dependency. However, I believe that the trial court in applying the setoffs did what it was required to do under section 2 of the Wrongful Death Act, that is, it considered the dependency of Samantha and David on the decedent. While this may not have been done in a formal way, the trial court was in a position to consider the evidence, and the ultimate effect of its actions was that the dependency was so considered. After considering that dependency, it deducted the amounts that each party had received in settlement just the same as would have been done in a common law action.

This situation is unusual in that the jury, for the reasons stated in the majority, set separate verdicts for David and Samantha. In the ordinary situation, there will be only one verdict, and in that event I believe the trial court should set the amount of dependency and then deduct any settlement that any party receives from a settling defendant.


author: JUSTICE GIANNIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LIONEL BELL, Defendant-Appellant.
    First District (6th Division)
    No. 1—92—0539
    Opinion filed August 27, 1993.
    Rita A. Fry, Public Defender, of Chicago (Renee C. Graham, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Linda Woloshin, and Marci Lubin, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GIANNIS

delivered the opinion of the court:

Defendant, Lionel Bell, was charged with three counts of aggravated criminal sexual assault and one count of aggravated criminal sexual abuse. After a bench trial, the trial court found him guilty of all four counts. The court then sentenced him to a term of nine years. On appeal, defendant contends that the State failed to prove the element of penetration necessary to the offense of aggravated criminal sexual assault. We agree.

The five-year-old complainant, U.H., testified that she lived with her mother and her 7- and 11-year-old brothers. Complainant called her vagina “kitty cat.” Defendant and complainant were on the bed in her mother’s room when she testified that he touched her “kitty cat.” Both were wearing shorts. No one else touched complainant’s “kitty cat.” Complainant did not tell her mother, who she feared would spank her. After complainant experienced pain during urination, her mother inspected her vagina and applied ointment before taking her to the hospital.

Complainant’s mother testified that on March 23, 1991, she, her two sons and complainant lived with defendant at 1239 South Racine in Chicago. On March 26, 1991, complainant screamed while trying to urinate. When the mother entered the bathroom, complainant stated that her “kitty cat” hurt. Complainant’s mother observed redness and small bumps on complainant’s vagina and applied Vaseline to it before taking her to the clinic where she spoke to the doctor and police. Complainant never had this problem in the past. In rebuttal, complainant’s mother denied that her children bathed together or that she ever disciplined either of her sons for touching complainant’s vagina or inappropriately embracing her. The children shared a bedroom but each slept separately on the living room sofa, floor or bed. She admitted that she and defendant discussed his proposed job relocation but denied that she filed this complaint in retaliation.

The testimony of Officer Adeline Raducha and Assistant State’s Attorney Lauren Freeman was substantially similar. Officer Raducha testified that she first advised defendant of his Miranda rights when she interviewed him with attorney Freeman. Defendant initially denied involvement with complainant. Defendant explained that he was tired when he and complainant’s mother returned from Easter shopping so he went to the bedroom to rest. However, complainant wanted to play so they then wrestled, and he may have accidentally touched her vagina. Defendant denied any intent to molest her. At the close of the interview, defendant put his head into his hands, cried and apologized for making a mistake. Attorney Freeman added that defendant first denied ever being alone with complainant or touching her and that she advised defendant of his Miranda rights and her office.

Dr. Felismeno Kintanar, a pediatrician, testified that on March 26, 1991, he examined complainant pursuant to a claim of suspected sexual abuse. He found that she had erythemal congestion or unusual redness around her vagina and suffered dysuria or pain when urinating. He stated that it was possible that this could have resulted from an object such as an adult finger being inserted into her vagina. But it was also possible that the cause was insertion of complainant’s finger or a urinary tract infection or tight clothing. Complainant tested negative for sexually transmitted diseases and urinary tract infection. The doctor also observed no lacerations to the vaginal area.

Defendant testified that during the morning on March 23, 1991, he was paid at work, then he took complainant’s mother shopping. When they returned to the apartment in the afternoon, he proceeded to the bedroom to rest and change into gym shorts and a shirt. Complainant and her brothers then entered the bedroom and wrestled with defendant until he lay down to rest. After the children left the room, complainant returned and resumed wrestling with defendant. During their play he swung complainant while holding her thigh and chest and at this point his hand may have slipped, but he never touched complainant under her clothing. Later that evening complainant’s mother became upset when defendant informed her of his job transfer to Texas and that he was taking the household furnishings and clothing he purchased. Defendant added that the children bathed and slept together and that their mother reprimanded her son for inappropriately embracing and touching complainant. He further indicated that complainant’s mother previously treated complainant with Vaseline when her brother touched her vagina.

Defendant contends that the State’s evidence failed to establish the penetration which is an element of the form of aggravated criminal sexual assault of which defendant was convicted. Defendant was charged with having inserted his finger into the vagina of the young victim in violation of section-12 — 14(b)(1) of the Criminal Code of 1961, which provides:

“The accused commits aggravated criminal sexual assault if:
(1) the accused was 17 years of age or over and commits an act of sexual penetration with a victim who was under 13 years of age when the act was committed.” Ill. Rev. Stat. 1991, ch. 38, par. 12-14(b)(l).

Sexual penetration is statutorily defined as:

“any contact, however slight, between the sex organ of one person and the sex organ, mouth or anus of another person, or any intrusion, however slight, of any part of the body of one person or of any animal or object into the sex organ or anus of another person.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 38, par. 12 — 12(f).

The evidence in this cause failed to establish that there was any intrusion by defendant into the vaginal area of the complainant. Complainant testified only that, at a time when she was wearing shorts, defendant touched her vaginal area, which she called her “kitty cat.” The State stresses the medical testimony concerning redness around complainant’s vagina and her pain when urinating. But Dr. Kintanar’s testimony concerning the cause of this condition was equivocal. The doctor testified that this condition could have been caused by the insertion of an adult finger. But he also testified that it could have been caused by tight clothing or by a urinary tract infection or by complainant inserting her own finger. The doctor made no evaluation of the probability of any one of these causes, although it was established that complainant had no urinary tract infection three days after the alleged molestation.

Defendant’s statement to the police, and his trial testimony, established only that he may have accidentally touched the area of complainant’s vagina through her clothing while playing with her.

The statute unambiguously requires that if the touching was allegedly by a body part such as a finger, or by a foreign object there must have been some slight intrusion into complainant’s vaginal area in order to establish the commission of a criminal sexual assault. (People v. Kelly (1989), 185 Ill. App. 3d 43, 51-52, 540 N.E.2d 1125; People v. Thomas (1992), 234 Ill. App. 3d 819, 823-24, 602 N.E.2d 1.) Thus in Kelly, one complainant’s statement that defendant had “poked” her vagina with his finger and a second complainant’s testimony that defendant had “touched” her in her “naughty place” were held insufficient to establish the penetration required for aggravated criminal sexual assault, thus requiring reversal of defendant’s conviction for that offense. In Thomas the complainant testified that defendant had pushed on a stick which had been placed between her legs, causing the stick to “hit” her vagina. This testimony was deemed insufficient to establish an intrusion into the complainant’s vagina and therefore defendant’s conviction of aggravated criminal sexual assault was vacated.

The State contends that the minimal intrusion required could consist of defendant touching complainant’s vaginal area over her shorts, citing People v. Warren (1991), 217 Ill. App. 3d 778, 785, 577 N.E.2d 936, and People v. Velasco (1991), 216 Ill. App. 3d 578, 575 N.E.2d 954. We are not persuaded by this authority. In Warren the complainant testified that the defendant touched her vagina over her shorts. The Warren court found that this established the slight intrusion into a person’s sex organ required for criminal sexual assault, citing People v. Gardner (1988), 172 Ill. App. 3d 763, 527 N.E.2d 155. But in Gardner the defendant contended that one of his convictions of aggravated criminal sexual assault must be vacated because it was based on his conduct in unsuccessfully attempting to penetrate the victim’s vagina with his penis. In rejecting this contention, the Warren court stated:

“Unlike the crime of rape, the offense of criminal sexual assault does not require physical penetration of a victim’s vagina. Sexual penetration is defined as any contact, however slight, between the sex organ of one person and the sex organ of another person.” (Gardner, 172 Ill. App. 3d at 766.)

The Warren court appears to have overlooked the statutory requirement of intrusion, rather than mere contact, when a part of the defendant other than his penis or mouth is involved.

In Velasco the victim testified that defendant had touched her genitals with his mouth. The court cited Gardner for the proposition that “criminal sexual assault does not require physical penetration of complainant’s vagina” and so affirmed defendant’s conviction of that offense. Velasco, 216 Ill. App. 3d at 588-89.

The defendant in this cause was alleged to have inserted his finger in the complainant’s vagina; there was. no evidence of contact by his mouth or penis. Because the evidence failed to establish even a minimal intrusion of the complainant’s vaginal area by the defendant, we must reverse his conviction for aggravated criminal sexual assault. We note that defendant was also convicted of aggravated criminal sexual abuse, an offense which may include:

“any intentional *** touching or fondling by *** the accused, either directly or through clothing, of the sex organs *** of the accused.”

(Ill. Rev. Stat. 1991, ch. 38, pars. 12 — 12(e), 12—15, 12 — 16.) That conviction was merged into defendant’s conviction of aggravated criminal sexual assault. Defendant has not challenged the indictment or conviction for this charge. We therefore remand defendant’s cause to the circuit court for resentencing on the aggravated criminal sexual abuse conviction.

Reversed in part and remanded.

McNAMARA, P.J., and EGAN, J., concur.