author: JUSTICE GORDON

text:
    MARK HILL, Plaintiff-Appellant, v. THE CHICAGO HOUSING AUTHORITY et al., Defendants-Appellees.
    First District (5th Division)
    No. 1— 90—0512
    Opinion filed August 7, 1992.

      Moore & Maisel, of Chicago (Gary K. Moore and Thomas J. Branit, of counsel), for appellee Chicago Housing Authority.
    Sheldon Hodes, of Chicago, for appellant.

      Baal & O’Connor, of Chicago (Keith Haug and Robert B. Baal, of counsel), for appellee Triad Security.
   JUSTICE GORDON

delivered the opinion of the court:

This case arises from the shooting of the plaintiff, Mark Hill, in the lobby of 1158 N. Cleveland, Chicago, Illinois, a building which is part of defendant Chicago Housing Authority’s (hereinafter CHA’s) Cabrini Green Housing Project. Plaintiff brought a single-count complaint against CHA and defendant Triad Security alleging negligence by the defendants. (Although Triad Security is now known as Guardian Security Services, Inc., this opinion shall refer to this defendant as Triad, which refers to its designation in the caption and in the notice of appeal.) The trial court granted CHA’s motion for summary judgment and Triad’s motion to dismiss, and plaintiff appeals. For the reasons set forth below, we affirm.

Facts

On March 18, 1986, at approximately 12:30 a.m., plaintiff was shot by an unknown assailant when he walked into the lobby of the building at 1158 N. Cleveland in Chicago. Plaintiff’s mother lived in that building.

On September 28, 1987, plaintiff filed a one-count complaint against defendants. In that complaint, plaintiff alleged that the CHA had a duty to exercise reasonable care and diligence to keep the building at 1158 N. Cleveland in a reasonably safe condition and to take necessary precautions to prevent loitering in the common areas of the building. Plaintiff further alleged that, in furtherance of that duty, CHA had retained the services of Triad to protect and patrol the building.

The complaint alleged that the defendants were negligent in allowing dangerous persons to loiter in the common areas and hallways, and in failing to have security personnel patrol those areas to prevent such loitering and assaults on the plaintiff and others who were rightfully using the common areas. Plaintiff also alleged that the assault was the direct and proximate result of the defendants’ negligence.

CHA answered the complaint, admitting that it had a duty to maintain its property in a reasonably safe condition and that it had retained the services of Triad to protect the property. CHA denied the specific allegations of negligence.

Triad filed a motion to dismiss pursuant to section 2—619 (Ill. Rev. Stat. 1987, ch. 110, par. 2—619). In support of its motion, Triad submitted the affidavits of George Sasek, its acting operations manager, and Winston Moore, director of security for the CHA. According to Sasek, the oral agreement between CHA and Triad required Triad to provide security services on a day-to-day basis as requested by the CHA. These services were limited to the protection of CHA property without any agreement to protect residents or guests of the buildings. At the time of the assault, no Triad personnel were located at 1158 N. Cleveland since none were assigned by the CHA to that unit at that time.

Triad contended that the complaint should be dismissed since it had no duty to provide security to the premises at the time in question and also that its duty was limited to the protection of property.

On May 3, 1988, CHA filed a motion for summary judgment (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005), supported by the affidavits of Sasek and Moore. CHA contended it had no duty to protect plaintiff, that it had no duty to provide security for the tenants of its housing units, and that it did not contract with Triad to provide such security. In addition, under section 4—102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1987, ch. 85, par. 4—102) (hereinafter the Tort Immunity Act), a municipal body is not liable for failure to provide adequate police protection or to prevent the commission of crimes.

On February 7, 1989, Triad filed an amended motion to dismiss. This motion was substantially the same as Triad’s original motion to dismiss, but was supported by the affidavit of Kenneth Kotz, president of Triad, rather than that of Sasek.

On March 9, 1989, plaintiff filed an amended complaint. This complaint added an allegation that the defendants were negligent in failing to provide adequate lighting in the common areas and hallways so as to ensure that tenants and others lawfully on the premises could see persons loitering in the area. CHA filed an answer to the amended complaint, again denying plaintiff’s allegations. Triad adopted its amended motion to dismiss the original complaint as its motion to dismiss the amended complaint, and CHA adopted its original motion for summary judgment as its motion for summary judgment as to plaintiff’s amended complaint.

CHA also filed three affirmative defenses. The first alleged that plaintiff’s injuries were caused by plaintiff’s own negligence. The second affirmative defense was based upon section 3—102 of the Tort Immunity Act (Ill. Rev. Stat. 1987, ch. 85, par. 3—102), which provided that defendant could not be held liable for injuries arising out of defects on its premises absent actual or constructive notice of such defects. CHA contended that it had no such notice.

As its third defense, CHA argued that under section 4—102 of the Tort Immunity Act, it was not liable for failure to prevent the commission of the crime here, and that this immunity was not waived by hiring the codefendant Triad. By agreed order entered June 8, 1989, the third affirmative defense was stricken. Although CHA was granted time to file an amended defense, the record does not indicate that it did so.

In opposition to the defendants’ motions, plaintiff filed the affidavits of Jerry Weldon and Dwyne Sanford, former security guards employed by Triad and stationed at Cabrini Green. According to the affi-ants, their jobs were to patrol the complex, prevent loitering, report lights which were out in the common areas, and to report vandalism in order to keep the premises safe for the residents. Weldon and Sanford also stated that guards were to be stationed at Cabrini Green 24 hours a day.

Plaintiff also filed several depositions with the court. In his deposition, Winston Moore, director of security for CHA, stated that the CHA itself employs no security personnel, but engages private security contractors to provide security for the property. Triad had been a security contractor for the CHA since 1982, operating under an oral agreement. Under the agreement, Triad was to provide security services for the CHA on a day-to-day basis whenever requested by the CHA. The agreement was made between Moore and Jim Melanowski and Kenneth Koch, the owners of Triad.

Another deposition filed by plaintiff was that of Lt. Eddie King of the public housing authority unit of the Chicago police department. Lt. King estimated that in the two years prior to plaintiff’s shooting, there had been 10 shootings and three or four stabbings at Cabrini Green. It was the policy of the police department to inform the CHA about shootings, serious stabbings and unexplained deaths on its property.

Plaintiff also filed his own deposition in which he testified about the shooting. At about 12:30 a.m. on March 18, 1986, he was returning home after taking his girl friend home. As he approached 1158 N. Cleveland, he saw three individuals entering the building. Rather than enter the building directly, he first walked around it three times. Plaintiff explained that he did this because the building was dark, the lights in the lobby having been vandalized by the gangs. Plaintiff stated that it was his habit to not enter the lobby immediately when he saw unknown individuals enter before, but to wait and give them enough time to get upstairs before he would enter.

When he did enter the lobby, someone jumped out from behind a door, yelled, pulled a gun and started shooting. After being shot, plaintiff ran out the back of the building. His assailant did not follow.

Plaintiff also testified that one of his friends had been shot and killed in the same building. Plaintiff could not remember when that shooting occurred nor did he name the alleged victim. Plaintiff also stated that a female Jehovah’s Witness whose name he did not know had been assaulted in a dark hallway of the building.

When questioned by his attorney, plaintiff stated that the lights in the lobby of 1158 N. Cleveland had been out for two or three weeks prior to the shooting, and that a week before, he had complained to the building janitor. The lights were not repaired or replaced.

The deposition of Kenneth Kotz, president of Triad, was also filed by the plaintiff. Kotz testified that his company provided security services to the CHA under an oral agreement. Under that agreement, Triad was to provide protection for the property of the CHA and had no responsibility to provide security for the residents. Their duties were to make vacant apartment checks, patrol the grounds and look to see if vandalism had been committed.

According to Triad’s records, it had guards assigned to Cabrini Green on the 4-to-12 shift on March 17, 1986, but no guards were located at 1158 N. Cleveland when the plaintiff was assaulted.

James Malinowski, co-owner of Triad, was also deposed by the plaintiff. He testified that from 1982 to some time after the plaintiff was shot, his company provided security services for the CHA under an oral agreement. The CHA would call Triad to request a specific number of guards and would specify which CHA properties they were to cover.

The final deposition presented by plaintiff was that of George Sa-sek, assistant operations manager for Triad. He stated that he had no personal knowledge of what the oral agreement was between Triad and the CHA at the time of plaintiff’s shooting. Questioned about his statement in his affidavit that Triad had no guards present at 1158 N. Cleveland at the time of the shooting, Sasek believed that he had referred to roll call sheets in making that statement.

The defendants replied to the plaintiff’s arguments. CHA, in addition to disagreeing with plaintiff’s legal position, urged the court to disregard the affidavits of guards Weldon and Sanford which plaintiff filed in opposition to the summary judgment motion. CHA argued that plaintiff had been given ample time to depose two of Triad’s guards, and that the failure to do so deprived CHA of the opportunity to cross-examine those guards.

Triad also urged that the affidavits of the guards should be disregarded since they failed to meet the requirements of Supreme Court Rule 191 (134 Ill. 2d R. 191), because they failed to set forth facts which indicated that either affiant had any personal knowledge of the agreement between Triad and the CHA. At oral arguments on defendants’ motions, Triad again argued that the affidavits were insufficient under Rule 191.

Following argument on the motions, the court entered an order on January 30, 1990, granting CHA’s motion for summary judgment and Triad’s motion to dismiss. Plaintiff filed a timely notice of appeal.

Opinion

Plaintiff contends that it was error to grant defendants’ motions since he presented sufficient evidence regarding the duties of each defendant to create an issue of material fact as to the duties of each defendant and whether those duties were properly discharged. We shall address CHA’s summary judgment motion first.

A motion for summary judgment should be granted when the pleadings, depositions and affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005(c).) In an action for negligence, the plaintiff must allege sufficient facts to establish the existence of a duty owed by the defendant to a plaintiff, a breach of that duty, and an injury proximately resulting therefrom. (Vesey v. Chicago Housing Authority (1991), 145 Ill. 2d 404, 411, 583 N.E.2d 538; Rowe v. State Bank (1988), 125 Ill. 2d 203, 215, 531 N.E.2d 1358.) Whether the defendant owes a duty to the plaintiff is a question of law, to be determined by the court. (Vesey, 145 Ill. 2d 404, 583 N.E.2d 538; Rowe, 125 Ill. 2d 203, 531 N.E.2d 1358.) In the absence of facts from which the court could infer the existence of a duty, there can be no recovery and summary judgment for the defendant is proper. (Vesey, 145 Ill. 2d 404, 583 N.E.2d 538; Rowe, 125 Ill. 2d 203, 531 N.E.2d 1358.) We thus must determine whether under the facts of this case the CHA owed plaintiff any duty. As discussed below, we conclude that it did not.

The parties agree that, as a general rule, a landlord owes its tenants no duty to protect them from criminal acts by others. (Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, 399 N.E.2d 596.) There are, however, exceptions to this rule. One exception exists when a landlord voluntarily undertakes to provide security services, in which event he assumes a duty not to be negligent in the performance of that undertaking. (Rowe, 125 Ill. 2d 203, 531 N.E.2d 1358; Phillips v. Chicago Housing Authority (1982), 89 Ill. 2d 122, 431 N.E.2d 1038; Cross v. Wells Fargo Alarm Services (1980), 82 Ill. 2d 313, 412 N.E.2d 472; Pippin, 78 Ill. 2d 204, 399 N.E.2d 596.) The extent of any liability is strictly limited by the scope of the undertaking. (Rowe, 125 Ill. 2d 203, 531 N.E.2d 1358; Phillips, 89 Ill. 2d 122, 431 N.E.2d 1038; Cross, 82 Ill. 2d 313, 412 N.E.2d 472; Pippin, 78 Ill. 2d 204, 399 N.E.2d 596.) When a landlord hires a security firm to provide security services, he may be liable for negligent hiring. (Pippin, 78 Ill. 2d 204, 399 N.E.2d 596.) When the landlord undertakes security measures himself, he has a duty of reasonable care in that undertaking. Phillips, 89 Ill. 2d at 127.

Plaintiff contends that there was evidence to establish an issue of fact as to the extent of the CHA’s undertaking to provide security. By virtue of the fact that the CHA retained control and direction over Triad’s services, telling it how many guards it needed and when and where those guards were to be sent, plaintiff argues that the CHA in effect was providing the security itself. He also contends that the CHA’s undertaking included the protection of residents of the CHA from criminal attacks, pointing to statements by Triad president Kotz that in protecting the property from fire and vandalism, it was protecting the residents. Plaintiff also relies on the affidavits of Triad guards Weldon and Sanford that they were to keep the premises safe for the residents, and that guards were to be at Cabrini Green 24 hours a day.

The CHA urges that there are no facts from which it can be inferred that the CHA itself undertook to provide protection for its tenants from criminal attacks by third parties, or that it hired Triad to protect people as opposed to property. According to the CHA, the only competent evidence of its undertaking is the affidavits of Moore and Kotz, both of whom testified that the oral agreement between CHA and Triad was only to protect the property. As a result of its not undertaking to protect people, CHA had no duty to protect the plaintiff, and summary judgment was properly granted. We agree.

The affidavits presented by the CHA establish that it undertook only the protection of property. Thus, since its duty is limited by the extent of that undertaking, it owed the plaintiff no duty to protect him from the criminal act by which he was injured.

As the party moving for summary judgment, the CHA has met its burden of presenting facts which, if uncontradicted, would entitle it to a judgment as a matter of law. (Purtill v. Hess (1986), 111 Ill. 2d 229, 241, 489 N.E.2d 867.) It was therefore incumbent upon plaintiff to present facts, by counteraffidavit, to contradict the CHA’s submissions. Plaintiff attempted to do this through the affidavits of Triad guards Weldon and Sanford.

Triad argued in its reply brief in the trial court, and again at oral arguments on the motions, there was no way for the guards to have personal knowledge of the agreement between the CHA and Triad, and thus the affidavits were insufficient under Supreme Court Rule 191. (134 Ill. 2d R. 191.) We agree. Our review of the substance of the affidavits indicates that their allegations are inadequate to contradict the material facts regarding the scope of the agreement as established by defendants’ submissions.

Neither affidavit addressed the actual terms of the agreement, nor did the affiants claim to have any knowledge of the actual agreement. Instead, they listed what they understood to be their responsibilities as guards, and what they believed to be their purpose: “to help keep the premises safe for the residents and other persons lawfully on the premises.” They did not, however, set forth any facts which form the basis for these statements. (See Extel Corp. v. Cermetek Microelectronics, Inc. (1989), 183 Ill. App. 3d 688, 689, 539 N.E.2d 320 (affidavit based on affiant’s “understanding” of agreement insufficient to raise issue of material fact); Cohen v. Washington Manufacturing Co. (1979), 80 Ill. App. 3d 1, 398 N.E.2d 1202.) Neither affiant purported to have personal knowledge of the agreement by virtue of having been present when the agreement between the CHA and Triad was reached. (See Kukla Press, Inc. v. Family Media, Inc. (1985), 133 Ill. App. 3d 939, 479 N.E.2d 1116 (where affiant was not present at meeting when agreement was reached, he lacked personal knowledge of statements made at that meeting). See generally 4 R. Michael, Illinois Practice §39.2 (1989).) Although the guards stated that they had personal knowledge that “there were to be guards stationed at Cabrini Green performing the aforesaid duties 24 hours a day,” the affidavits do not indicate that the agreement between the CHA and Triad was the source of this knowledge. Nor, in fact, do the affidavits indicate that guards were to be stationed at the building at 1158 N. Cleveland at the time when plaintiff was shot.

Thus, the only competent evidence before the court as to the extent of defendants’ agreement for security at Cabrini Green was the affidavits of Moore and Kotz. According to those affidavits, CHA’s undertaking was limited to hiring Triad for the protection of CHA property. The affidavits submitted by plaintiff were insufficient to raise a genuine issue of material fact as to the scope of the agreement between the CHA and Triad. Since under the voluntary undertaking exception any duty is limited to the scope of the undertaking, the CHA was under no duty to protect the plaintiff from criminal assaults by third parties.

Moreover, even were we to conclude that the CHA undertook to protect the plaintiff from criminal attacks and thus owed him a duty, the CHA would be immune from any liability by virtue of the Local Government and Governmental Employees Tort Immunity Act. (Ill. Rev. Stat. 1985, ch. 85, par. 4—102.) That act provides:

“Neither a local public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide adequate police protection service, failure to prevent the commission of crimes, and failure to apprehend criminals.” Ill. Rev. Stat. 1985, ch. 85, par. 4—102.

Plaintiff, however, urges that the trial court could not consider the statute since it constitutes an affirmative defense which was stricken by agreement of the parties and not repleaded by the CHA. We disagree. An affirmative defense may be raised in a motion for summary judgment even though not raised in an answer. (Florsheim v. Travelers Indemnity Co. (1979), 75 Ill. App. 3d 298, 393 N.E.2d 1223.) The statute was included in the CHA’s motion for summary judgment, and the plaintiff’s only response was that the statute did not become effective until after the incident at issue. In fact, however, the statute was effective at the time of plaintiff’s shooting. It was an amendment providing that the public entity’s immunity is not waived by the hiring of a private security service which became effective several months after the shooting. Although there is a dearth of cases construing whether this amended provision is a clarification of the preexisting provision, that interpretation would seem the most reasonable. Unlike the purchase of insurance, which will result in the waiver of immunity (Ill. Rev. Stat. 1987, ch. 85, par. 9—103), the retention of private security guards leaves the public entity exposed to the same financial risk in attempting to cope with the identical problem as would be present by its own provision of police protection. This construction is consistent with the approach taken by the appellate court in Pippin v. Chicago Housing Authority (1978), 58 Ill. App. 3d 1029, 374 N.E.2d 1055, aff'd (1979), 78 Ill. 2d 204, 399 N.E.2d 596, which held that the retention of a private security agency waived immunity only because insurance was provided, thereby invoking the provisions of section 9—103.

Moreover, in addition to raising the statute in its summary judgment motion, the CHA argued it before the trial court without objection by the plaintiff. As a result, we find that it is the plaintiff who has waived his argument.

Plaintiff further contends that an issue of fact exists as to his right to recover by virtue of a second exception to the general rule regarding a landlord’s liability for criminal assaults on his tenants by third parties, which may occur when a landlord is negligent in maintaining the property, and the condition of the premises facilitates the criminal acts. (Rowe, 125 Ill. 2d at 224, 531 N.E.2d 1358; Cross, 82 Ill. 2d 313, 412 N.E.2d 472; Petrauskas v. Wexenthaller Realty Management, Inc. (1989), 186 Ill. App. 3d 820, 542 N.E.2d 902; Duncavage v. Allen (1986), 147 Ill. App. 3d 88, 497 N.E.2d 433; Stribling v. Chicago Housing Authority (1975), 34 Ill. App. 3d 551, 340 N.E.2d 47.) “While a landlord is not an insurer and cannot be held liable for harm done by every criminal intruder (Trice v. Chicago Housing Authority (1973), 14 Ill. App. 3d 97, 100, 302 N.E.2d 207), prior incidents similar to the one complained of and which are connected with the physical condition of the premises may impose a duty of reasonable case [sic].” (Duncavage, 147 Ill. App. 3d at 97-98, citing Stribling, 34 Ill. App. 3d 551, 340 N.E.2d 47.) To be held liable, the landlord’s negligence must facilitate the criminal activities of the third party, and the criminal activities must be reasonably foreseeable. (Rowe, 125 Ill. 2d 203, 531 N.E.2d 1358.) Although the injury to plaintiff need not be identical to the prior criminal incidents in order for it to be considered foreseeable, plaintiff’s injury must have resulted from the same risk as was present in the prior incidents. Petrauskas, 186 Ill. App. 3d at 827.

Plaintiff contends that the CHA was aware of other shootings and assaults which had occurred in Cabrini Green. Lt. King testified that there were 10 shootings and three or four stabbings in the project in the two years prior to the incident here, and that the CHA was informed of those incidents. There is no indication, however, that any of those shootings had any connection with the physical condition of the building in which plaintiff was shot or that they were the result of a lack of lighting in the lobby. (See Petrauskas, 186 Ill. App. 3d at 827 (prior fatal shooting across the street held to be insufficient to establish connection with building where shooting at issue. occurred).) The only allegations of prior incidents connected with the building were the incidents plaintiff mentioned in his deposition. He stated that a friend had been shot in the building and that a female Jehovah’s Witness has been grabbed in a dark hallway.

Such vague allegations of prior criminal events against unnamed victims and at unspecified times do not raise an issue as to foreseeability. (Figueroa v. Evangelical Covenant Church (7th Cir. 1989), 879 F.2d 1427, 1439.) The allegations made here fall far short of those in Stribling (34 Ill. App. 3d 551, 340 N.E.2d 47) and Duncavage (147 Ill. App. 3d 88, 497 N.E.2d 433), where the courts found the criminal attacks to be foreseeable. In Stribling, plaintiffs apartment was burglarized by persons who broke through a wall between plaintiff’s apartment and a vacant apartment next to it. Plaintiff notified the landlord of the burglary, but the vacant apartment was not made secure. Two subsequent burglaries occurred in the same fashion as the first. In finding the landlord liable for the second and third burglaries, the court stated “after defendants had notice of the original burglary and the means used in effecting the burglary, the fact that another burglary could happen in the same fashion became eminently foreseeable.” (Stribling, 34 Ill. App. 3d at 556.) In Duncavage, plaintiff was murdered when an intruder came into a rear yard adjacent to her apartment and hid in high weeds in the darkness of an unlighted area. He then used a ladder, which the landlord stored in the yard adjacent to plaintiff’s apartment, to gain access through an unlockable window. Plaintiff alleged that the defendant knew of a previous illegal entry into the same apartment, concealed by the same unlighted yard and high weeds, and by means of the same ladder. Duncavage, 147 Ill. App. 3d at 96.

Plaintiff also directs our attention to the case of Smith v. Chicago Housing Authority (1976), 36 Ill. App. 3d 967, 344 N.E.2d 536, another case involving a shooting in the lobby of a CHA building, in arguing that the attack on plaintiff was foreseeable. The court there, however, found that plaintiff’s injury had no connection to the condition of the premises, and therefore that case cannot be said to represent a prior criminal incident which resulted from the same risk as did plaintiff’s injury here and as required by Petrauskas.

As to defendant Triad, we likewise find that the trial court was correct in granting its motion. Although the CHA’s motion was one for summary judgment and Triad’s was a motion to dismiss under section 2—619, the issue as to both defendants is the same, namely whether there exists a question of material fact. Ralston v. Casanova (1984), 129 Ill. App. 3d 1050, 473 N.E.2d 444 (section 2—619 motion is essentially a summary judgment procedure and issue is whether there is a question of material fact).

One who agrees to perform services for another assumes a duty of reasonable care in the performance of those services. (B.C. v. J.C. Penney Co. (1990), 205 Ill. App. 3d 5, 13, 562 N.E.2d 533, citing Restatement (Second) of Torts §324A (1965).) The duty owed is limited by the extent of the undertaking and the agreement of the parties. (B.C., 205 Ill. App. 3d 5, 562 N.E.2d 533; Cross, 82 Ill. 2d at 318; Pippin, 78 Ill. 2d 204, 399 N.E.2d 596.) “[A]n action sounding in tort[ ] will lie where a security agency contractually agrees to protect persons lawfully on the premises of a housing authority and the agency fails to exercise reasonable care in its obligation. (78 Ill. 2d 204, 212.) The duty owed to the plaintiff is measured by the terms of the contractual obligation.” Cross, 82 Ill. 2d at 320 (Clark, J., specially concurring), discussing Pippin.

As discussed above in regard to the scope of the CHA’s undertaking, the only competent evidence regarding the agreement between the CHA and Triad was the affidavits presented by the defendants. Those affidavits establish that under the agreement, Triad’s only duty was to protect CHA property and then only at such times and places as requested by the CHA. (Compare Pippin, 78 Ill. 2d 204, 399 N.E.2d 596 (security agency which contracted with CHA to provide protection for persons on CHA property assumed duty of reasonable care in performing its contractual obligation).) There is no question that there were no Triad guards assigned to Cabrini Green at the time of the plaintiff’s shooting, and plaintiff has presented no evidence that Triad had any duty to provide guards at that time. (See Cross, 82 Ill. 2d 313, 412 N.E.2d 472 (security agency which contracted to provide services from 9 a.m. to 1 a.m. not liable for injury which occurred at 1:15 a.m.).) As a result, Triad could not be liable for any injuries suffered by the plaintiff.

Accordingly, for all the above reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

McNULTY, P.J., and MURRAY, J., concur.


source: Caselaw Access Project

author: JUSTICE SCARIANO

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH GANT, Defendant-Appellant.
    First District (2nd Division)
    No. 1—89—0669
    Opinion filed August 4, 1992.
    Rehearing denied September 10, 1992.

      Michael J. Pelletier and James E. Chadd, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee G. Goldfarb and Michael Latz, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

After a bench trial, defendant Joseph Gant was found guilty of murder, armed violence, home invasion, aggravated unlawful restraint, and possession of a stolen motor vehicle. Because the court found that the evidence of guilt was overwhelming, and that the offense was accompanied by extensive brutal or heinous behavior indicative of wanton cruelty, it sentenced defendant to the custody of the Illinois Department of Corrections for an extended term of 65 years for murder, 30 years for armed violence, 7 years for possession of a stolen motor vehicle and 5 years for aggravated unlawful restraint, all sentences to run concurrently. A timely notice of appeal was filed.

The State’s evidence consisted mainly of defendant’s statements made to the police and to various acquaintances, admitting that he planned and participated in all of the offenses with which he was charged, except that of murder. Bartholomew Veal, with whom he had attended high school, testified that defendant asked him on July 26, 1986, if he wanted to “make some money” by breaking into the home of Derrick Wilkinson and Regina Dunn. Defendant also asked Veal if he had a gun, and told him that he could make $3,000. Veal declined to get involved. After the crime had been committed, defendant and his codefendant Irving Ramey asked Veal if he would sell certain stolen items for them, but he refused. Veal also testified that in mid-October, defendant called him to say “he didn’t know it was going to happen like that, and that he regretted” the way things had turned out, namely that Ramey had killed Wilkinson. Gerald Jackson, another of defendant’s acquaintances, testified that defendant had asked if he could borrow his handcuffs for the evening, and Jackson complied. He also identified the handcuffs which the police had retrieved from the crime scene as those that he had loaned to defendant.

Regina Dunn testified that on the night of July 31, 1986, she was awakened by a noise. While in her bed, someone jumped on her, pressed her head down, held a sharp object against her neck and said, “Don’t move, else I will kill you.” She then heard a second voice tell the first voice to shut up. The second voice also told her not to move or he’d kill her. One of the two voices told her “don’t move or I will kill your kids.” A pillow was placed over her face, thus making it impossible for her to identify visually either person; she was also handcuffed and tied to Wilkinson. During this incident, the only sound she heard from Wilkinson was his clearing his throat; she touched him but he said nothing.

After a few minutes, Dunn heard footsteps leave the bedroom and go downstairs; she then heard things being wheeled through the door downstairs. She later heard someone come up the stairs, switch on the bedroom light, get on the bed, turn her over, and remove the chain from around her neck. When Dunn heard no other noises, she removed the pillow from her face and saw that Wilkinson was handcuffed to her; she also noticed that she had been cut on the neck and was bleeding. She eventually struggled to the window and called for help, and when the police arrived, they found her sitting on the bed and Wilkinson lying in a pool of blood. Wilkinson was found to have no vital signs. The autopsy report listed the cause of death as a stab wound to the chest.

Hazel Crest police detective Gary Jones testified that shortly after the incident, the two stolen vehicles were found approximately two or three blocks from defendant’s girl friend’s apartment and that he had found a wooden-handled steak knife inside one of the cars. Defendant was arrested on November 25, 1986, and after having been given his Miranda warnings he told the police that he, Ramey and an unidentified third person had broken into Dunn’s residence. Defendant said he never went upstairs, and that his only role was to take the stereo and video equipment out to the cars; he wanted nothing to do with handcuffing and gagging any of the people in the house.

After making that statement, however, defendant told Jones that he had not told the whole truth and expressed a desire to make another statement concerning what had happened. In this second statement defendant said that he and Ramey planned to burglarize Dunn’s apartment a few days prior to the incident and that there was no third person involved. On the night of the break-in, he called Jackson and arranged to pick up a pair of handcuffs from his mailbox. Once in the apartment they proceeded upstairs. He jumped on Dunn, turned her face to the wall, and ordered her to be quiet; Ramey jumped on Wilkinson. Defendant held Dunn until Ramey had handcuffed both her and Wilkinson. Defendant then went downstairs and started disconnecting the stereo equipment. When Ramey came downstairs sometime later, he had blood on his hands. Defendant stated that he had not known Ramey was carrying a knife or that Ramey had stabbed Wilkinson. The two men proceeded to load the electronic equipment into the two cars, checking periodically on Dunn and Wilkinson. This second statement was reduced to writing by Detective Jones and was signed by defendant. He also gave a statement to Assistant State’s Attorney Maureen Hartón, taken by a court reporter, the content of which was comparable to the second one given to the police. Defendant and Ramey were tried separately.

I

In both his opening and closing statements, defense counsel admitted that defendant had committed the crimes of home invasion, armed violence, aggravated unlawful restraint, and possession of a stolen motor vehicle, but asked the court to find that his client was not accountable for Wilkinson’s death. Counsel’s theory of defense, as it was argued to the court, was that “Mr. Ramey, for reasons we will not know in this trial, undertook independent action, went upstairs for no apparent reason, because it was not in furtherance of the, if you want to call it, conspiracy or planned criminal conduct, which was to steal these items and sell them for money, for some reason [to] stab Mr. Wilkinson”—in sum, that Ramey committed an independent crime by killing Wilkinson.

After counsel had made the above-quoted opening remarks, the court had the following discussion with defendant and his counsel:

“THE COURT: I want to inquire of Mr. Rago [defense counsel], and I don’t mean to interfere at all in any strategy decisions or attorney-client situation, have you discussed the strategy of your case with Mr. Friel [co-counsel]?
MR. RAGO: Yes, Judge, over an extensive period of time, over the proposition [sic] of the trial, and more importantly last week as well as this form of indication to the form of the Court [sic] as well as the matters to which Mr. Gant wishes to address to the Court. Specifically again, this is without violation to attorney-client privileges, which is not to contest he in fact engaged in the actions which led to the home invasion and engaged in the actions of stealing not only the motor vehicles and the stereo equipment. Certainly he wished to contest before the Court any accountability for the killing of Mr. Wilkinson by Mr. Ramey.
THE COURT: Mr. Gant, is that correct? Have you discussed this with your attorney?
A. Yes, sir.
THE COURT: This is the strategy that you and your attorney have agreed upon, is that correct?
A. Yes, sir.
THE COURT: Fine.”

Defendant argues that his counsel presented no meaningful defense, in that counsel essentially conceded his guilt by acquiescing to the charges; that counsel’s strategy had no basis in law, and thus had no chance of success. For these reasons he claims a violation of his sixth amendment right to effective assistance of counsel, citing People v. Chandler (1989), 129 Ill. 2d 233. In Chandler, the defendant was convicted of murder, residential burglary and arson. According to his statement, the defendant ransacked the first floor of the home while the codefendant went upstairs. The codefendant came back downstairs, said there was a woman upstairs, and then returned to the second floor with a knife from the victim’s kitchen. “According to defendant’s statement, he then started to go upstairs and saw his co-defendant come out of the victim’s bedroom and heard him state that ‘it’s too late.’ ” (Chandler, 129 Ill. 2d at 237.) The defendant and co-defendant took items from the house and left. They later returned to set fire to the house in order to destroy any fingerprints. Chandler, 129 Ill. 2d at 237.

At trial Chandler’s counsel, in his opening statement, told the jury, “ T can say I think candidly there’s only really two people know [sic] what happened in the [victim’s] house on the night of January 15th and the early morning hours of January the 16th and that’s the defendant and his co-defendant.’ ” (Chandler, 129 Ill. 2d at 241.) In his closing argument, defense counsel “while apparently conceding the fact that defendant entered the victim’s house, argued that defendant did not stab the victim but that defendant’s codefendant stabbed the victim, causing her death.” (Chandler, 129 Ill. 2d at 239.) Counsel went on to argue, however, that “ T don’t think if you take a realistic view of this that you[, the jury,] can find defendant guilty of murder.’ ” (Chandler, 129 Ill. 2d at 239.) Based on this evidence, the court held that counsel’s actions in conceding that the defendant committed the underlying felony constituted ineffective assistance of counsel, citing Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.

In order to establish ineffective assistance under Strickland, the defendant must prove “(1) that his counsel’s performance was deficient by having made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the sixth amendment, and (2) that his counsel’s deficiencies prejudiced the defendant.” Chandler, 129 Ill. 2d at 242, citing Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064, and People v. Albanese (1984), 104 Ill. 2d 504, 526-27, cert. denied (1985), 471 U.S. 1044, 85 L. Ed. 2d 335, 105 S. Ct. 2061.

The court in Chandler held that both prongs of Strickland had been met. First, the performance was deficient in that

“Counsel’s apparent strategy was to convince the jury, in closing argument, to believe defendant’s denial, in his statements to the police, of killing the victim. This strategy was the basis of counsel’s deficiency. *** Defense counsel apparently mistakenly believed that the jury could find defendant not guilty of murder if they believed that he had not inflicted the fatal wounds to the victim. *** The jury, however, having been instructed on both felony murder and accountability, had no choice but to find defendant guilty of murder, residential burglary and arson.
***
This court has repeatedly held that, to be guilty of felony murder, a defendant need not be the one who inflicted the fatal wounds to the victim of the underlying felony. (See People v. Hickman (1974), 59 Ill. 2d 89; People v. Smith (1974), 56 Ill. 2d 328; People v. Allen (1974), 56 Ill. 2d 536.)” Chandler, 129 Ill. 2d at 246-47.

Second, the court concluded that “there [was] a reasonable probability that but for counsel’s deficient performance, the result of the trial would have been different.” (Chandler, 129 Ill. 2d at 250.) Applying Chandler to the facts in the case at bar, defendant argues that his counsel’s strategy and actions amounted to no real defense at all and that his defense was virtually identical to the strategy adopted in Chandler.

We note, however, that the court in Chandler did not elaborate as to how or why the result would have been different, a circumstance pointed out by the dissent. No matter, for the result in this case is governed by People v. Ganus (1992), 148 Ill. 2d 466. The defendant in Ganus, serving time in the Menard Correctional Institution, was convicted of three counts of murder and sentenced to death for having murdered a fellow inmate. He appealed his convictions, claiming, in part, ineffective assistance of counsel. At trial, his counsel attempted to defend on the theory of compulsion, and relied on the defendant’s involvement with gangs at Menard. Clearly, though, the defense of compulsion is not a defense available to one charged with an offense punishable by death. People v. Gleckler (1980), 82 Ill. 2d 145; Ill. Rev. Stat. 1987, ch. 38, par. 7-ll(a).

In analyzing the defendant’s claim, the court applied the Strickland standard and held that the defendant had failed to prove ineffectiveness. The record in Ganus demonstrated that the defendant had provided police with a detailed, “Mirandized” confession, but that he refused to testify at trial on his own behalf. The record demonstrated also that counsel had consulted with legal experts in an effort to formulate and finalize his strategy, to which the defendant consented. (Ganus, 148 Ill. 2d at 471-72.) The court found that

“[i]n terms of defense strategy, the gang-activity evidence was legitimate, even though defendant was not entitled to a compulsion defense. ***
Regardless of defense counsel’s intentions regarding compulsion, this evidence was relevant as mitigation, and its use as such was defense counsel’s principle reason for eliciting it. Counsel’s chosen concentration was the prevention of defendant’s death — a legitimate strategy given the unique circumstances of this case. [Therefore, these actions] cannot be characterized as unreasonable under the first prong of the Strickland standard.” Ganus, 148 Ill. 2d at 472.

Turning, then, to the second prong of the Strickland analysis, the court noted that the record was

“replete with evidence corroborating defendant’s confession. * * *
*** [Defendant’s conviction was the result of a highly corroborated confession, rather than inflammatory gang evidence. Given the strong nature of the evidence, it cannot be said that the jury would likely have acquitted defendant had defense counsel not established [his gang affiliation].” (Ganus, 148 Ill. 2d at 473.)

The court stressed heavily that the case before them was one in which the defendant

“literally had no defense. Evidence of his guilt was overwhelming. His counsel conceived a compulsion defense which, though not a legal defense, could or might have persuaded a jury not to convict. *** A weak or insufficient defense does not indicate ineffectiveness of counsel in a case where a defendant had no defense. In this case it would appear that defense counsel used his imagination and resourcefulness to come up with something where he had nothing to go on.” Ganus, 148 Ill. 2d at 473-74.

Here, too, defense counsel’s overall performance demonstrated competent representation. He presented, pursued, and preserved zealously a pretrial motion to quash defendant’s arrest; he took advantage of all of his opportunities to make appropriate objections during the State’s direct examination of its witnesses; and he vigorously cross-examined Veal and Dunn. He pointed out what he thought to be weaknesses in the State’s position and attempted to develop a theory of innocence, albeit a totally hopeless one, on the basis that Ramey committed an independent crime, and here, as did Ganus, defendant clearly consented to his attorney’s strategy. Defendant’s counsel could not have argued that defendant was not guilty of home invasion, armed violence, aggravated unlawful restraint, and possession of a stolen motor vehicle, without risking the loss of credibility with the trier of fact on other issues. (People v. Johnson (1989), 128 Ill. 2d 253, 269; Chandler, 129 Ill. 2d at 257 (Ryan, J., dissenting).) However impractical-, his independent crime theory as a defense, defendant’s acknowledgment that he participated in the other crimes but not in Wilkinson’s stabbing of the victim could have been relevant as mitigation. (Ganus, 148 Ill. 2d at 472.) Indeed, we note in the record that defendant used his “independent crime” theory as mitigation at sentencing. As in Ganus, “[d]efense counsel finalized a strategy and obtained defendant’s consent to same” (Ganus, 148 Ill. 2d at 472); and “once the decision to stand trial has been made, counsel must put the prosecution to its burden of proving defendant guilty beyond a reasonable doubt.” (Chandler, 129 Ill. 2d at 245.) In the case at bar, the prosecution was put to that burden; moreover, his counsel did not concede any fact to which defendant did not admit to the police. (Chandler, 129 Ill. 2d at 245.) Thus, for the same reasons as in Ganus, defense counsel here cannot be said to have violated the first prong of Strickland.

Similarly, because of the overwhelming evidence against defendant, his counsel cannot be said to have violated the second prong of Strickland: Defendant had provided police with a voluntary, written, and signed “Mirandized” confession; and he had provided one subsequently to an assistant State’s Attorney. Veal, one of defendant’s friends from high school days, testified that defendant had admitted to having broken into Dunn’s home and stolen goods therefrom, but that Ramey’s conduct was not consonant with their plan. In addition, the handcuffs which were removed from Wilkinson were identified as those which were borrowed from Jackson. Lastly, the two stolen vehicles were recovered a few blocks away from defendant’s girl friend’s apartment. Thus, following the more recent pronouncement of the supreme court in Ganus, as we must, we are led irresistibly to the conclusion that defendant’s ineffective assistance claim is untenable.

II

Defendant also argues that the record does not show that he “intelligently and knowingly” agreed to plead guilty, as required by Boykin v. Alabama (1969), 395 U.S. 238, 243-44, 23 L. Ed. 2d 274, 279-80, 89 S. Ct. 1709, 1712-13, and People v. Hattery (1985), 109 Ill. 2d 449, 464, cert. denied (1986), 478 U.S. 1013, 92 L. Ed. 2d 727, 106 S. Ct. 3314, since knowing and intelligent consent “will not be presumed from a silent record.” (Hattery, 109 Ill. 2d at 464.) Defendant claims that before he could intelligently and knowingly consent to his counsel’s strategy, it would be critical for the record to reflect his understanding of the consequences attendant upon his conceding that he committed the underlying felonies, and that he could not have knowingly and intelligently agreed to his counsel’s trial strategy if he did not understand that the doctrines of felony murder and accountability made inevitable a murder conviction once his counsel had admitted upon his behalf that he had committed the companion offenses.

We disagree. Defendant entered a formal plea of not guilty and never withdrew this plea. Accordingly, the trial court proceeded to conduct a trial at which defendant “[held] the prosecution to its heavy burden of proof beyond a reasonable doubt.” (United States v. Cronic (1984), 466 U.S. 648, 656 n.19, 80 L. Ed. 2d 657, 666 n.19, 104 S. Ct. 2039, 2045 n.19.) This was not the situation that we find to exist in People v. Horton (1991), 143 Ill. 2d 11, in which the State was relieved of its duty to prove beyond a reasonable doubt the elements of the charges brought against the defendant. In Horton the defendant was charged in a 10-count indictment, and in two separate stipulated bench trials was convicted of five of those counts. In his first trial, the defense counsel in his closing argument stated that he was “not contesting the evidence to convict,” and preserved for appeal the previously denied motion to quash arrest and suppress the lineup. In his second trial, however, he stipulated both to the evidence and to its sufficiency “to convict [defendant of the offenses] as charged,” that is, he “stipulate[d] to the legal conclusion to be drawn from the evidence.” (Horton, 143 Ill. 2d at 21.) The supreme court concluded that while the defendant’s first trial was not tantamount to a guilty plea, his second trial was. Unlike Horton, however, defendant here did not stipulate to the facts or to the sufficiency of the evidence against him; rather, he held the State to its burden of proof (Cronic, 466 U.S. 648, 80 L. Ed. 2d 657, 104 S. Ct. 2039). Were defendant’s consent to his counsel’s strategy tantamount to a formal admission of guilt, the State would have been relieved of that burden.

Nor is ours the situation which was found to exist in Hattery. The supreme court in Ganus found “some similarities” between that case and Hattery, where the

“defendant had pled not guilty to a murder charge. His counsel’s trial strategy consisted of admitting that the defendant was guilty of murder but was not deserving of the death penalty. Defendant did not consent to that trial strategy. In [Ganus], on the other hand, defendant’s counsel’s trial strategy was consented to by defendant. What [Ganus] presents is a situation where the defendant literally had no defense. Evidence of his guilt was overwhelming. His counsel conceived a compulsion defense which, though not a legal defense, could or might have persuaded a jury not to convict. Jury nullification is always a possibility.” (Ganus, 148 Ill. 2d at 473.)

In light of Ganus, we can confidently conclude that defendant knowingly and intelligently consented to his counsel’s strategy, a consent clearly spread on the face of the record made in this case. Thus, defendant’s argument on this issue must be rejected.

Ill

In objecting to the trial court’s sentencing him to an extended term, defendant contends that in light of Maynard v. Cartwright (1988), 486 U.S. 356, 100 L. Ed. 2d 372, 108 S. Ct. 1853, section 5—5—3.2(b)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005—5—3.2(b)(2)) is unconstitutionally vague.

The State, however, cites Illinois authority, distinguishing Maynard, which holds that section 5—5—3.2(b)(2) is constitutional. In People v. LaPointe, the court defined the word “heinous” as “hatefully or shockingly evil” or “grossly bad,” and the term “brutal” as conduct which is “devoid of mercy or compassion,” or “cruel or coldblooded.” (People v. La Pointe (1981), 88 Ill. 2d 482, 501.) In People v. Bryant (1990), 202 Ill. App. 3d 290, appeal denied (1990), 135 Ill. 2d 559, cert. denied (1991), 502 U.S. 824, 116 L. Ed. 2d 61, 112 S. Ct. 89, the court held that section 5—5—3.2(b)(2) “specifically describes the conduct which qualifies an accused for an extended-term sentence.” Therefore, this section does “not suffer from the same constitutional infirmity as did the statute in Maynard because the Illinois Statute [is] much more specific.” (Bryant, 202 Ill. App. 3d at 309. See also People v. Barnhill (1989), 188 Ill. App. 3d 299, 309, appeal denied (1990), 129 Ill. 2d 566 (interpreting section 5—8—l(a)(l)(b), “these words are sufficiently indicative of the type of murder which warrants a sentence of natural life imprisonment and are not unconstitutionally vague on their face”); People v. Fyke (1989), 190 Ill. App. 3d 713, 722 (applying the rule in Barnhill to section 5—5—3.2(b)(2)); People v. Page (1990), 193 Ill. App. 3d 467, 472, appeal denied (1990), 131 Ill. 2d 564 (“Section 5—5—3.2(b)(2) is not unconstitutionally vague in nondeath penalty cases”).) Accordingly, we find that section 5—5— 3.2(b)(2) of the Unified Code of Corrections is not unconstitutionally vague.

IV

Finally, defendant contends that the evidence in this case fails to establish excessive brutal or heinous behavior indicative of wanton cruelty. At sentencing, it was determined that defendant had two prior juvenile adjudications for battery for which he received one year of probation and six months of supervision. Based on all the evidence, the trial court in the case sub judice held that defendant’s actions were accompanied by “extensive [sic] brutal or heinous behavior indicative of wanton cruelty.” The court based its determination on evidence that defendant had planned and committed a home invasion to take place at night, knowing that people were present there, sleeping; because he “bound, gagged, and handcuffed” Dunn and Wilkinson; because he knew of the potential for violence involved in a home invasion; and because he made “threats to kill either the individual he bound or the children of that individual.” Furthermore, defendant “left one victim bound and gagged to [sic] a gasping pool of blood.”

Defendant cites People v. Lucas (1989), 132 Ill. 2d 399, and People v. Andrews (1989), 132 Ill. 2d 451, as cases in which the supreme court reversed the trial court, holding that the conduct there was not so exceptionally brutal or heinous as to justify the imposition of a more severe sentence. He also cites People v. Bedony (1988), 173 Ill. App. 3d 613, People v. Price (1987), 158 Ill. App. 3d 921, and People v. Holiday (1985), 130 Ill. App. 3d 753.

It is within the trial court’s discretion to determine what constitutes “exceptionally brutal and heinous behavior indicative of wanton cruelty” for the purpose of imposing an extended sentence. (People v. Edens (1988), 174 Ill. App. 3d 1033, 1045, appeal denied (1989), 124 Ill. 2d 558.) Moreover, extended-term sentences for brutal and heinous conduct may apply to accomplices as well as principals. People v. Jordan (1984), 103 Ill. 2d 192, 215.

We hold that the trial court did not abuse its discretion and find that the cases which defendant cites are distinguishable.

For the above-stated reasons, we affirm the judgment of the trial court.

Affirmed.

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

      After Dunn had returned from the hospital, she reported missing three VCRs, a tape deck, two turntables, an amplifier, a set of speakers, a microwave oven, and two automobiles.

      Section 5—5—3.2(b)(2) reads as follows:
      “the following factors may be considered by the court as reasons to impose an extended term sentence under Section 5 — 8—2 upon any offender who was at least 17 years old on the date the crime was committed:
      ***
      (2) When a defendant is convicted of any felony and the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty” Ill. Rev. Stat. 1985, ch. 38, par. 1005— 5—3.2(b)(2).


author: JUSTICE HAASE JUSTICE STOUDER,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD ALLEN, Defendant-Appellant.
    Third District
    No. 3—91—0213
    Opinion filed August 26, 1992.
    STOUDER, J., dissenting.

      Mark D. Fisher, of State Appellate Defender’s Office, of Ottawa, for appellant.
    William Poncin, State’s Attorney, of Macomb (John X. Breslin and Robert M. Hansen, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HAASE

delivered the opinion of the court:

The defendant, Donald Allen, appeals his conviction for criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12—13). The issues on appeal concern the following: whether the trial court properly suppressed a remark made by the victim several months before the offense; whether the prosecutor committed error in closing argument; and whether the defendant was improperly convicted of two counts of criminal sexual assault. We find no error and affirm.

The record shows that the defendant was initially charged with two counts of criminal sexual assault. Count I alleged that the defendant had performed sexual intercourse with Linda Morris by the use of force, and count II alleged that he had performed sexual intercourse with Linda Morris by the threat of force.

Prior to trial, the defendant filed a motion seeking to admit evidence that before the offense, Morris agreed to have sex with the defendant and Todd Mathena. At the hearing on the motion, Mathena testified that in early March of 1990, he and the defendant had a conversation with Morris. Mathena asked Morris if she would have sex with him and the defendant. Morris first refused, but she later agreed to do so. They did not, however, have sex at that time.

The trial court denied the motion, finding that the evidence was too remote and immaterial to be admissible.

At trial, Morris testified that she and the defendant had been friends before the offense. On the evening of July 14, 1990, she saw the defendant walking by her parents’ apartment. The two then walked back to her apartment, where they talked. She noted that he appeared to be drunk. Around 8 or 8:30 p.m., he passed out on her couch. A few hours later, Todd Mathena came over. After he and Morris talked for a while, they walked to a liquor store and bought beer. They returned around midnight and drank some of the beer. When the defendant awoke, he talked and drank with them for about an hour.

Mathena decided to leave around 1:30 or 2 a.m. Morris kissed him and asked him to spend the night, but he refused. After he left, the defendant grabbed Morris from behind. She pulled away from him, but he grabbed her hair, picked her up, and carried her into the bedroom. He then threw her on the bed and kissed her. Morris screamed and bit him on the shoulder, but he grabbed her by the throat with one hand, made a fist with the other, and threatened to kill her if she did not shut up. After he removed her clothes and performed oral sex on her, he forced her to have intercourse.

Following intercourse, Morris told him that she had to go to the bathroom. She then grabbed her clothes and purse and ran out of the apartment. The defendant yelled at her to come back, but she ignored him and ran to the apartment of a friend, Tina Brooks. When she told Brooks what had happened, Brooks called Mathena and the police. After the police arrived, Morris was taken to the hospital.

Tina Brooks’ testimony generally corroborated Morris’ testimony about what had occurred at Brooks’ apartment. Specifically, Brooks said that Morris was very upset when she arrived at her apartment. Morris then told her that she had been sexually assaulted.

Doctor George Roodhouse testified that he examined Morris following the attack. Morris told him that she had been sexually assaulted. The only injury he saw was a small bruise on her left shoulder.

Officer Robert McMahon testified that he spoke to Morris following the incident. Afterwards, he went to Morris’ apartment, where he found the defendant sleeping on her bed. He then arrested him.

Officer John Royal testified that he and Officer Robert Canavit questioned the defendant following the incident. The defendant admitted having intercourse with Morris but denied raping her. Officer Canavit then photographed what appeared to be a bite mark on the defendant’s shoulder. The trial judge allowed the photograph into evidence. The defendant explained the mark to Royal by saying that Morris had bit him during intercourse. He also said that he had performed oral sex on Morris.

After the State rested, the defendant testified that he spent most of July 14 drinking beer and playing pool with his friends. That evening, he met Morris outside her parents’ apartment. Morris had beer on her breath. At her invitation, he went over to her apartment. While there, he drank one or two beers. He and Morris then kissed on the couch until he fell asleep.

When the defendant awoke, he saw Mathena drinking beer with Morris. He joined them and drank another beer. After Mathena left, Morris sat down by the defendant and began kissing him and rubbing his genitals. The two then went into the bedroom, where Morris performed oral sex on him. Afterwards, they had intercourse. During this time, Morris sucked on his shoulder. When they finished, the defendant put his clothes on and fell asleep on the bed.

The defendant further testified that he later spoke to Officers Canavit and Royal about the incident. He told them that he did not perform oral sex on Morris. At trial, he again stated that he did not perform oral sex on her.

Timothy Widger testified that he lived in the apartment next to Morris’. That evening, he watched television from 10 p.m. until 2:30 a.m. During that time, he did not hear any unusual sounds from Morris’ apartment.

Todd Mathena testified that he had known Morris for six or seven years. He also knew some of her friends, associates, and neighbors. In his opinion, she had a reputation for being untruthful.

Opal Norris also testified that Morris had a reputation for being untruthful. Norris admitted that she was a friend and former neighbor of the defendant’s mother.

Officer Robert Canavit testified in rebuttal that he and Officer Royal questioned the defendant on July 15. The defendant admitted that he had had intercourse with Morris, but he denied raping her. He also said that they had performed oral sex on each other. According to Canavit, neither the defendant nor Opal Norris had good reputations for truthfulness in their neighborhoods.

During his initial closing argument, the prosecutor stated:

“Finally, I would ask you to consider the motive that the two witnesses who were in the apartment that night might have to fabricate. Does Linda Morris have any motive to not tell the truth? Do you think she would have gone through all of this, the emergency room procedures. *** The defendant, he’s on trial. That’s his motive.”

During his rebuttal argument, the prosecutor stated:

“Now, the defendant testified in this courtroom that he never performed oral sex on Linda Morris. Detective Royal and Detective Canavit testified that when they talked to the defendant at the county jail he told them that he performed oral sex on Linda Morris, and as I recall the defendant’s testimony he denied that he ever told that to the police. Now, if you are going to accept what the defendant has to say about this case, not only are you going to have to find that Linda Morris is a liar, but you are going to have to find that Robert Canavit and John Royal are liars.”

After the jury found the defendant guilty on both counts, the judge entered convictions for both offenses. At the sentencing hearing, the defendant moved to have one of his convictions vacated. He argued that since there was only one act of intercourse, he should only have one conviction. The trial judge stated that he did not want to overturn a jury verdict, but agreed that the defendant should not have two convictions. He therefore entered a conviction and sentence solely on count I.

On appeal, the defendant first argues that the trial court erred in suppressing Morris’ statement that she was willing to have sex with Mathena and the defendant. The defendant contends that the comment was admissible because it was relevant to the issue of whether Morris consented to have sex with him on July 14.

The trial judge may reject evidence which has little probative value because of remoteness, uncertainty, or conjecture. (People v. Rogers (1985), 135 Ill. App. 3d 608, 482 N.E.2d 639.) The admission of evidence is within the trial judge’s sound discretion, and his ruling will only be reversed if it was so arbitrary that no reasonable person could take his view. People v. Illgen (1991), 145 Ill. 2d 353, 583 N.E.2d 515.

Here, Morris made her remark about four months before the offense occurred. She made it in response to a question from Mathena, whom she was apparently fond of. Additionally, she did not have sex with the men at that time. Based on the foregoing, the trial judge could have reasonably found that the comment was too remote and immaterial to be admissible. We therefore find no error.

The defendant next argues that the prosecutor committed error in his closing statement when he argued that the defendant had a motive to lie simply because he was on trial. The defendant contends that the law does not presume a defendant to have such a motive. See, e.g., Illinois Pattern Jury Instructions, Criminal, No. 1.02 (2d ed. 1981) (stating that the defendant’s testimony is to be judged in the same manner as that of any other witness).

We note that the defendant did not object to the comment at trial or in his post-trial motion, thereby waiving the error. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) Accordingly, we will only reverse if there was plain error, which is defined as error that either denies the defendant a fair trial or that occurs in a case where the evidence is closely balanced. People v. Morgan (1991), 142 Ill. 2d 410, 568 N.E.2d 755.

Here, the prosecutor briefly remarked on the defendant’s motive. In our view, his comment was not so prejudicial as to deny the defendant a fair trial. Additionally, Morris’ testimony was credible, and it was corroborated by Brooks’ testimony and the photograph. We therefore find that the evidence was not closely balanced. Accordingly, there was no plain error.

The defendant next argues that the prosecutor committed error by arguing that in order to accept the defendant’s version of events, the jury would have to find that Officers Canavit and Royal were liars. The defendant contends that the prosecutor misstated the law because the proper standard is not whether one side’s witnesses were more believable, but whether the defendant was proved guilty beyond a reasonable doubt. (People v. Roach (1991), 213 Ill. App. 3d 119, 571 N.E.2d 515.) The defendant also argues that the prosecutor misstated the evidence. He contends that since the basis of the offense was penile penetration, the defendant’s performance of oral sex was irrelevant.

Attorneys have broad latitude in drawing reasonable conclusions from the evidence. (People v. Smith (1987), 158 Ill. App. 3d 595, 511 N.E.2d 770.) Accordingly, a prosecutor may argue that a defendant was lying if it can be fairly inferred from the evidence. People v. Rader (1988), 178 Ill. App. 3d 453, 532 N.E.2d 1365.

The defendant failed to object to these comments either at trial or in his post-trial motion. Accordingly, we can only reverse if plain error occurred. Here, the officers testified that the defendant had admitted to performing oral sex on Morris. The defendant, however, testified that he did not make that statement to them. Consequently, the prosecutor properly argued that if the jury were to accept the defendant’s entire story, then they would have to find that the officers lied about the defendant’s statement concerning oral sex. Moreover, the prosecutor’s comments were relevant because they concerned the credibility of the three witnesses. We therefore find no plain error.

The defendant lastly argues that the trial judge erred in entering two convictions for a single act of sexual intercourse. He therefore asks this court to vacate one of his two convictions.

At the sentencing hearing, the trial judge stated that he would only enter a conviction and sentence on count I. The amended sentencing order reflects a conviction and sentence on only one count. Since the defendant received the relief he requested, we find no error.

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

Affirmed.

GORMAN, J., concurs.

JUSTICE STOUDER,

dissenting:

I disagree with the result reached by my colleagues. I believe the defendant is entitled to a new trial. In particular, I believe the trial court committed reversible error when it granted the motion in limine, thereby excluding testimony regarding the conversation which took place four months before the occurrence involved in this case.

The majority of the court has properly declared the applicable rules and standard of review. My disagreement is with the application of such rules to the facts of this case.

People v. Rogers (1985), 135 Ill. App. 3d 608, 482 N.E.2d 639, cited by the majority, is helpful in describing the general rules, as is People v. Illgen (1991), 145 Ill. 2d 353, 583 N.E.2d 515, the other case cited in the opinion on this issue. However, neither case is of any special significance in support of the result reached. In Rogers, the court affirmed the trial court’s ruling sustaining an objection to cross-examination. The line of questioning was pursued in support of the defendant’s theory the female complainant was concerned with the effect a relationship with the defendant would have on her reputation. The questions were premature but involved issues affecting the complainant’s credibility which might be raised on retrial. (The case was reversed and remanded for a new trial on other grounds.)

In Illgen (a murder case), the court approved evidence of threats and misconduct by the defendant towards his wife occurring over a period of several years. According to the court, such evidence was properly introduced to refute any claim the death was accidental. Even though such evidence related to events occurring a long time before the shooting, such remoteness did not render the evidence inadmissible.

Admissibility of evidence depends largely on the relevancy and materiality of such evidence. (People v. Gardner (1977), 47 Ill. App. 3d 529, 362 N.E.2d 14.) Evidence is considered “relevant” if it has any tendency to make the existence of any fact that is of consequence to the determination of an action more or less probable than it would be without the evidence. People v. Illgen (1991), 145 Ill. 2d 353, 583 N.E.2d 515.

The scope of cross-examination of a witness rests largely within the sound discretion of the trial court, and its ruling will not be disturbed on review unless there has been a clear abuse of discretion. (People v. Rogers (1985), 135 Ill. App. 3d 608, 482 N.E.2d 639.) An abuse of discretion will be found only where the trial court’s decision is arbitrary, fanciful or unreasonable or where no reasonable man would take the view adopted by the trial court. (People v. Illgen (1991), 145 Ill. 2d 353, 583 N.E.2d 515.) Where the standard of review in ruling on the admissibility of evidence is an abuse of discretion, such rulings should be affirmed, unless “the defendant manifestly suffered prejudice as a result of the limitation.” People v. Crosser (1983), 117 Ill. App. 3d 24, 30, 452 N.E.2d 857, 863.

In the instant case, the trial court excluded the evidence of the victim’s conversation because it was of little probative value and too remote. I do not believe the evidence should be so considered. Under a definition of relevancy, such evidence did have a tendency to show the sexual intercourse was consensual as claimed by the defendant.

In this case, sexual intercourse was admitted by the defendant at the time of his arrest and the only issue is that of consent, which was hotly disputed. Other than the victim’s account of the incident, there is no objective evidence to support the claim of nonconsensual intercourse. There was no physical evidence of force or violence. Where consent is the only issue in a case, evidence bearing on the issue ought not to be excluded unless it has no probative value. The degree of probative value should be left to the jury. A defendant ought not be deprived of an opportunity to present any evidence affecting his defense. If a defendant had “boasted” some four months before a sexual assault that he intended to rape a particular woman and thereafter did so, evidence of such boast would be relevant. It would tend to show the subsequent sexual incident was noncon-sensual.

Evidence of the relations existing between the defendant and the victim prior to the crime is relevant. (People v. Halcomb (1988), 176 Ill. App. 3d 100, 530 N.E.2d 1074.) Conduct and declarations of the victim are admissible to determine the nature of the incident in which the victim was harmed. (People v. Halcomb (1988), 176 Ill. App. 3d 100, 530 N.E.2d 1074.) Other jurisdictions have recognized the distinction between evidence offered to prove sexual conduct and evidence offered to show the occurrence of an otherwise relevant conversation which revealed sexual conduct. See Doe v. United States (4th Cir. 1981), 666 F.2d 43; State v. Gibson (Mo. 1982), 636 S.W.2d 956; Wood v. State (Alaska Ct. App. 1987), 736 P.2d 363; State v. Ward (1983), 61 N.C. App. 605, 300 S.E.2d 855.

I believe the exclusion of the statements of the claimant was error. The evidence of guilt was not overwhelming and hence such error was reversible error requiring the defendant be granted a new trial.


author: JUSTICE LEWIS

text:
    RELIANCE ELEVATOR COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Mary Lou Ruzkowski, Widow of Jerome J. Ruzkowski, Deceased, Appellee).
    First District (Industrial Commission Division)
    No. 1—91—2582WC
    Opinion filed May 15, 1992.
    Rehearing denied September 17, 1992.

      Richard F. Pellegrino, Ltd., of Chicago, for appellant.
    Cronin & Peters, of Chicago, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

Claimant, Mary Lou Ruzkowski, filed an application for adjustment of claim for widow’s benefits pursuant to the Workers’ Compensation Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.) (the Act), following her husband’s, Jerome Ruzkowski’s (the decedent’s), death while employed by the respondent, Reliance Elevator Company. The arbitrator found that the decedent’s death arose out of and in the course of his employment and awarded the claimant benefits under the Act. On appeal, the Industrial Commission (the Commission) affirmed the arbitrator’s decision, and the circuit court confirmed the Commission’s decision. The respondent appeals.

The sole issue presented on appeal is whether the Commission’s determination that the decedent’s death arose out of and in the course of his employment was against the manifest weight of the evidence. We affirm for the reasons set forth below.

At the arbitration hearing, the claimant testified that she was married to the decedent on March 23, 1989. On that date, the decedent appeared to be in good health when he left for work that morning. At the time of the decedent’s death, he had been employed by the respondent for three or four years, but he had worked in the elevator business for approximately 36 years.

In summarizing the decedent’s past medical history, the claimant testified that the decedent had had gallbladder surgery a little over a year prior to his death, and that the surgery had been performed by Dr. Haun at Lutheran General Hospital. She stated that the decedent carried medication for headaches on his person. She further explained that the decedent had taken Zantac for a stomach condition, and that Dr. Lewis, the decedent’s family physician, had prescribed Valium for nervousness. She denied that the decedent had been treated for a heart condition, or that he had been diagnosed as having a congestive heart problem.

James Neiweem, an officer employed by the Wilmette police department, testified that he was on duty on March 23, 1989, and that he had been summoned to Mallinckrodt College (the College), the scene of the decedent’s death. Upon his arrival at the College, he went to the elevator room on the fourth floor, where he saw the decedent lying facedown on the floor. Officer Neiweem described the room as being 10 feet by 18 feet in size, with half of the floor of the room raised approximately two feet from the other half of the floor and upon which the electrical-control panel for the elevator was located. The decedent was found on the lower level of the floor, about three to four feet from the control panel. A screwdriver lay about a foot away from the decedent on the floor, and a tool pouch was upon the raised platform less than two feet from the control panel. Also in front of the control panel, on the raised portion, was a folded towel which the officer assumed to be a kneeling pad. Officer Neiweem observed that the electrical-control panel was on and that the electrical current was “arcing” between two contacts on the panel.

Officer Neiweem recalled that the decedent had an abrasion to his right eye, which the officer believed could have been caused when the decedent fell off of the platform area. Officer Neiweem admitted on cross-examination that he had seen a person electrocuted before but that there were paramedics working on the person at the time and he did not have a good view of the person. Officer Neiweem did not see any burn marks on the decedent.

Edward Rudek testified that he was working for the respondent on March 23, 1989, as a maintenance supervisor, and that he had been in the elevator business most of his life. Currently, he was employed by Otis Elevator Company as the superintendent of the modernization department, but at the time of the decedent’s death, he was the decedent’s supervisor. He stated that on the date of the decedent’s death, the decedent worked as a maintenance mechanic for the elevators, and that the decedent was at the College to perform routine maintenance. In performing routine maintenance on an elevator, a maintenance mechanic would contact the person in charge of the building, such as a building engineer, and would then go to the machine room and check the equipment and the lubricants. Rudek himself had done routine maintenance on elevators in the past. Rudek explained that the job sometimes required the mechanic to put his hands into the equipment to work on it, and that he had received electrical shocks many times while performing routine maintenance on an elevator.

Rudek went to the scene of the decedent’s death, and when he arrived, the decedent was lying on the floor on the left side of the room. Rudek stated that the control panel was on the right side of the room “on the deck.” Rudek further stated that the decedent’s tool pouch was on the deck, a rag was laying there, and there was no cover on the control panel.

Rudek testified that he is a member of a union and that every month there is something about accidents involving elevators in the literature provided by the union. These articles included electrical accidents, and in the past five or six years, there had been two or three electrocutions in the Chicago area. Rudek considered this to be a hazard of the job.

Rudek stated that he had known the decedent for about 28 years. On cross-examination, he admitted that he had hired the decedent for the respondent and that he was friends with the decedent and his family. He also admitted that during his employment with the respondent, he had had problems. He admitted that he had been “kind of like” demoted and had had a pay decrease while working for the respondent, and this had made him angry. He stated that he had never seen anyone electrocuted on the job.

The claimant presented the evidence deposition of Dr. Margarita Arruza, deputy medical examiner for the office of medical examiner of the County of Cook. She testified that she had investigated the decedent’s death for the medical examiner’s office and that her investigation consisted of reviewing the report of the investigator’s findings of the circumstances surrounding the decedent’s death, going to the scene of the decedent’s death, and doing a postmortem examination of the decedent.

In her examination of the decedent’s body, she found that the decedent had congestive cardiomyopathy, a 25% to 50% occlusion of the coronary arteries, and some abrasions on the forehead, right eye, cheek and forearm. She stated that the decedent was 56 years of age, was overweight and had a sick heart. Dr. Arruza explained that congestive cardiomyopathy is associated with decreased cardiac output, and the heart muscle becomes weaker and thinner. Some of the symptoms of this condition are fatigue and shortness of breath. A person with this condition might go on for a number of years with the disease and never experience any symptomology. She found that the decedent’s myopathy was a preexisting condition.

Dr. Arruza testified that the 25% to 50% occlusion of the decedent’s coronary arteries was not significant, as anything below a 70% occlusion does not have a physiological consequence on the blood flow. The doctor found no evidence that the decedent had had a prior myocardial infarction. Dr. Arruza admitted that the decedent could have suffered a cardiac arrest or death from his cardiac disease; however, it was her opinion that he had suffered a low-voltage electrocution, and that his heart disease made him more susceptible to electrocution, i.e., low-voltage electrocution to a diseased heart will cause more damage.

Dr. Arruza was advised that the voltage of the control panel at the College was 220. She stated that this was more than enough voltage to kill a person. Dr. Arruza was unable to find any burn marks at an entrance or exit wound on the decedent, but she did not find this surprising as none would be apparent in a low-voltage electrocution. Dr. Arruza admitted that she had no “proof” of electrocution, i.e., burn marks, but she stated that “there are tons of articles where they tell you low voltage electrocutions, you got to go by your circumstances. You’re not going to find burns. You’re not going to find anything significant in your autopsy. You got to look at what happened and see if it’s possible. And if it’s possible, that’s that, and that’s my opinion.”

Donald Miller testified on behalf of the respondent. He stated that he had been vice-president of field operations for three years, and, prior to that, he was a maintenance supervisor. On March 23, 1989, he went to the College with Rudek. He corroborated Rudek’s testimony regarding the location and appearance of the decedent’s body. He, too, had never seen anyone electrocuted on the job, but he was aware of the literature from the union which contained information on electrocution and safety. He also confirmed that there was no cover on the control panel of the elevator at the College, but this was not abnormal given the vintage of the elevator. The elevator at the College was designed by Otis in the 1920’s. He further stated all parts of the control panel carried electricity, and with the right combination, it was possible to receive a shock from the panel.

Dr. Gerald H. Lewis testified in his evidence deposition that he had treated the decedent since March 1987. On March 9, 1987, Dr. Lewis saw the decedent for the first time, and at this visit, the decedent complained of feeling fatigued, of having a flushed feeling, and of having blurred vision. In his examination of the decedent, he found the decedent to have a heart murmur, which he stated was of no significance, and the rest of the examination was normal. When the decedent came to the doctor for treatment, the decedent was already taking the medications of Maxzide and Valium as needed. The doctor explained that Maxzide was a treatment for hypertension.

In subsequent testing, the doctor found the decedent had a small hiatal hernia, uncomplicated diverticula, and gallstones. The decedent complained of chest discomfort at a later visit, which the doctor thought might be angina, and the doctor treated him accordingly; however, the doctor explained that the decedent’s symptoms were not classical for angina, but that the decedent had atypical chest pain.

In May 1987, Dr. Lewis had the decedent admitted to the hospital for a cardiac catheterization. This test revealed that the decedent had normal coronary arteries, a normal left ventricle, and normal pressures. In the visits after this test, the decedent complained of fatigue and swelling in his legs, which the doctor explained could be associated with hypertension, and he complained of neck pain and headaches. Dr. Lewis admitted that he had seen the decedent following a car accident for a whiplash injury, and on another occasion, he had treated the decedent for sores in his mouth and for inflammation of the tongue.

Dr. Lewis had reviewed the postmortem examination of the decedent. He described cardiomyopathy as a disease of the muscle of the heart and stated that the term “congestive cardiomyopathy” was a generic term as there can be a lot of causes of this condition. He explained that in congestive cardiomyopathy, the heart does not pump well. Dr. Lewis testified that in his examinations of the decedent, he had found no clinical signs of congestive cardiomyopathy. He further testified that generally there is not a massive progression or a significant progression of heart disease in two years’ time. Dr. Lewis could give no opinion as to the cause of the decedent’s death. He also stated that in the period of time in which he had treated the decedent, the decedent’s health had improved.

On appeal, the respondent argues that the Commission’s decision was against the manifest weight of the evidence, as there was no direct or circumstantial evidence, medical or otherwise, to show that the decedent was electrocuted during the course of his employment. The respondent asserts that there were no witnesses to the accident; that the decedent was performing routine maintenance work, work he had performed for almost 30 years; that the elevator was in proper working order; and that the deputy medical examiner’s testimony was inconsistent regarding the cause of death. We disagree.

The law is that an employee “is engaged in the course of his employment when the injury occurs within the period of his employment, at a place where he may reasonably be, and while he is reasonably fulfilling the duties of his employment or is engaged in doing something incidental to it.” (Hunter Packing Co. v. Industrial Comm’n (1953), 1 Ill. 2d 99, 104, 115 N.E.2d 236, 239.) The proof of injury need not be made by direct evidence, but may also be established by circumstantial evidence which leads to a logical and reasonable inference of a causal connection between the employment and the resulting injury. (Material Service Corp. v. Industrial Comm’n (1973), 53 Ill. 2d 429, 292 N.E.2d 367.) We find that the circumstantial evidence presented here was more than sufficient to support the Commission’s decision.

The evidence presented was that the decedent had gone to work the morning of his death in apparent good health, that he was at work at the College at the time of his death, and that he had gone to the room where the elevator-control panel was located in order to perform routine maintenance on the elevator as his job required. The evidence further established that there was a towel located where the decedent would kneel to work on the control panel, there was a screwdriver laying nearby the decedent, and the decedent’s tool pouch was laying near the kneeling towel, indicating that the decedent had begun his work duties. In addition, the evidence was clear that the electrical-control panel was on at the time of the decedent’s death, that the control panel had an exposed electrical current, and that the electricity was “arcing” between contact points. The testimony of the witnesses established that a maintenance mechanic was sometimes required to place his hands where the electrical current was, and that electrical shocks were a hazard of this occupation. This evidence, combined with the deputy medical examiner’s postmortem examination, provided a strong, reasonable inference that the decedent died as a result of a low-voltage electrocution. The deputy medical examiner’s testimony was that, on the basis of the circumstances, it was her opinion that the decedent died as a result of electrocution. Although the deputy medical examiner found evidence of heart disease, she did not determine that this condition was the cause of. the decedent’s death. The respondent presented no evidence to rebut the deputy medical examiner’s evidence. Thus, the Commission’s decision was not against the manifest weight of the evidence, and since a reviewing court will not disturb a Commission’s decision unless it is against the manifest weight of the evidence (Beecher Wholesale Greenhouse, Inc. v. Industrial Comm’n (1988), 170 Ill. App. 3d 184, 524 N.E.2d 750), the Commission’s decision must stand.

For the foregoing reasons, the judgment of the circuit court of Cook County confirming the decision of the Industrial Commission is affirmed.

Affirmed.

McCULLOUGH, P.J., and WOODWARD, STOUDER, and RAKOWSKI, JJ., concur.