author: JUSTICE INGLIS JUSTICE REINHARD,

text:
    STATE FARM FIRE AND CASUALTY COMPANY, as Subrogee of John J. Kurkjian, et al., Plaintiffs-Appellees and Cross-Appellants, v. MILLER ELECTRIC COMPANY, a Division of Carol Cable Company, Inc., Defendant-Appellant and Cross-Appellee.
    Second District
    No. 2 — 90—0040
    Opinion filed October 11, 1990.

      REINHARD, J., specially concurring.

      George E. Krippner, of Clancy & Krippner, of St. Charles (Kathleen K. Watson, of counsel), for appellant.
    Michael D. Fabing, of Warsawsky, McNeal, Fabing & Associates, of Chicago, for appellee Keith Consago.
    Guerard, Kalina, Musial, Ulrich & Varchetto, of Wheaton (Louis A. Varchetto, of counsel), for other appellees.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Miller Electric Company, a division of Carol Cable Company, Inc., appeals from a judgment entered on a jury verdict in favor of plaintiffs, State Farm Fire and Casualty Company (State Farm), as subrogee of John, Arlene, and Gary Kurkjian (the Kurkjians), and Keith Consago. Defendant contends that: (1) the trial court erred in not entering judgment based on the special interrogatory; (2) the jury’s verdict was internally inconsistent and should have been vacated; (3) the jury’s verdict was against the manifest weight of the evidence; and (4) the trial court erred in allowing plaintiff to conduct an in-court experiment.

Plaintiffs have also filed a cross-appeal in this case, arguing that the trial court abused its discretion in failing to award them reasonable attorney fees and costs.

On June 26, 1985, a fire destroyed a substantial portion of a residence which the Kurkjians’ owned. On March 19, 1987, State Farm filed a four-count complaint in the circuit court of Du Page County. Count I was premised on strict liability in tort; count II alleged negligence; count III alleged a breach of the implied warranty of merchantability; and count IV involved the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act (Act) (15 U.S.C. §2301 et seq. (1976)). On June 9, 1987, the trial court granted defendant’s motion to transfer venue to Kane County. On June 24, 1987, Keith Consago filed a complaint alleging the same four counts as State Farm did. Both plaintiffs dismissed the negligence counts prior to trial.

The following facts were adduced at trial. John Kurkjian testified that he owned a house in Geneva, Illinois, and leased it to his son, Gary, and Keith Consago. Kurkjian stated that he went to the property on June 26, 1985, at approximately 7 a.m., after receiving a telephone call concerning the fire. He was met there by two State Farm representatives, who then proceeded to inspect the property.

Patrick McGinnis, an inspector for State Farm, testified that he inspected the home shortly after the fire. McGinnis indicated that Gary’s bedroom sustained the most damage from the fire. He further indicated that he could smell smoke in the house during the inspection, but did not detect any other odors. He also requested to inspect an extension cord to determine if it was defective and was possibly the cause of the fire.

Gary Kurkjian testified that neither he nor Keith Consago was in the house at the time of the fire. Gary indicated that he purchased an extension cord so that he could use an electric razor in a bathroom which contained no electrical outlets. The cord was approximately 10 feet long and ran under a door leading into the bathroom. Gary stated that the door did not “pinch” the cord at any time and that he never noticed any damage to the cord. He also indicated that a weight set was located near the extension cord, but it never damaged or pinched the cord. Gary denied starting the fire and also denied smelling gasoline or kerosine in the house after the fire.

On cross-examination, Gary testified that, after viewing photographs of the bathroom in question, there appeared to be an electrical outlet in the bathroom, but he could not recall if it was functional. He also agreed with defense counsel that he was in the process of dissolving a general contracting business with Consago at the time of the fire.

Gerald Koster, a Geneva fire fighter, testified that he arrived at the house when the fire was still in progress. After extinguishing the fire, Koster began investigating its cause. Koster noted that the north bedroom sustained the most damage from the fire. Koster stated that arson was eliminated as a cause of the fire because of the pattern of the fire, the absence of any odors associated with petroleum-based accelerants, and the amount of damage which the fire caused. Instead, the cause of the fire was determined to be “accidental in nature and that cause was an electrical short in an extension cord plugged into the south wall which ignited nearby combustibles.” Koster removed the extension cord, along with the razor and the electrical outlet cover plate, from the house after the fire.

On cross-examination, Koster stated that he completed one 40-hour course on fire investigation prior to his investigation in the present case. Koster then described the fire fighting and investigative techniques used to combat the fire. He stated that the electrical power was on when the fire fighters arrived at the house but was shut off shortly thereafter. After putting the fire out, the investigation began. Koster took several photographs of the damage and agreed with defense counsel that one of the photographs indicated the presence of a “splash pattern,” an indication of the possible use of flammable liquids. He also agreed that a bent window frame in the bedroom was a possible indication of a forced entry into the house.

Koster further indicated that the extension cord recovered from the bedroom had “beaded copper” at the end of the positive line. The bead at the end of the line was evidence of a short, although not “positive proof.” Koster also stated that he checked the fuse box in the house to determine if the circuit “was in fact flowing power at the time of the incident.” None of the fuses were blown. He pointed out that normally the fuses would have blown if an electrical short had occurred.

Koster was also questioned regarding the use of a sniffer, a device used to detect flammable gasses. Koster stated that the Geneva fire department uses the device to track the source of liquid fuel spills or natural gas leaks. He indicated that the device was unreliable in fire investigations because it registers a large number of gasses, including those actually produced by combustion. The sniffer also is unable to distinguish between different types of gasses.

On redirect examination, Koster again stated that it was his opinion that a short in the electrical extension cord was the cause of the fire.

Paul Hansen, an engineer for Craig Engineering, Inc., testified that he examined the extension cord and razor at issue in this case. It was Hansen’s opinion, after examining the items, that the extension cord was defective and did, in fact, cause the fire at the Kurkjian residence. He based his opinion on his observation of a defect in the insulation in the cord approximately one foot from the plug. Hansen indicated that the defect would not cause a short circuit, but instead resulted in a “leakage of current that increased progressively with time.” At some point, the insulation carbonized and an electrical arc developed. After the arc developed, the temperatures would reach 4,000° Farenheit, which would be great enough to melt copper. Hansen explained that this was the reason why the copper beads were found at the end of the extension cord.

Hansen further explained his opinion of how the electrical arc started the fire in this case. He stated:

“An arc will continue until the point where, number one, it extinguishes itself; in other words, the wires get far enough apart that you can’t conduct electricity and the arc becomes extinguished, or the other possibility is that these — in this case, if the two wires fuse together causing a direct electrical short and the circuit breaker can then act upon the wire and up the circuit and eliminate the current to it and no more heat is made. But in the meantime, you had this getting very, very hot and it had to have ignited nearby combustibles and started the fire.”

Hansen further opined that the cord was defective and in a dangerous condition at the time it left the manufacturer.

On cross-examination, Hansen indicated that the extension cord did not violate any of the industry’s codes or standards. He also agreed with defense counsel that he did not state that there were any manufacturing defects in the product in his report made after inspecting the cord. He also agreed that there was not a great amount of heat where the bead on the cord was located because the cord was flexible at that point.

Hansen further testified that simply because a manufacturer is following industry standards does not necessarily mean that an extension cord could not leave the factory with a defect. This was the case because the standards and codes described the type of materials to be used and the specifications of the product, without addressing how the product should actually be manufactured. He reiterated his opinion that enough heat could be generated in the extension cord to cause a fire without actually blowing a fuse.

Robert Rose, the vice-president of defendant, testified that his company manufactured and sold the extension cord at issue in this case. He indicated that defendant has obtained the Underwriter’s Laboratory (U.L.) seal for manufacturing electrical extension cords to certain required specifications. He also indicated that U.L. inspects and tests samples of the product which U.L. selects on a random basis.

Keith Consago testified that he lived with Gary Kurkjian at the time of the fire. Consago stated that the extension cord was plugged into an outlet in Gary’s bedroom and was used in the bathroom because there wasn’t a usable outlet in the bathroom. Consago did not notice any physical damage to the cord at any time prior to the fire. Consago further stated that he did not set the fire to the house. After Consago testified, plaintiffs rested. Defendant’s motion for a directed verdict was denied.

Robert Bambenek, a consulting research engineer, then testified that defendant hired him to investigate the fire at issue in this case. Bambenek stated that he went to the fire scene approximately 21k years after the fire occurred to conduct his own investigation. He used an electronic sniffer in the house and discovered a “strong indication of a flammable vapor being present.” He also took several photographs of the house. After surveying the house and examining the photographs and extension cord, Bambenek concluded that there was no evidence of any defect in the cord. He noted that the arc damage in the cord was the result of being “looped over itself during a fire as opposed to the type of arc damage which would occur if the cord contained a defect.” Had the cord contained a defect, it would have been brittle and would have had a greater amount of damage done to the conductors. He also concluded that the fire did not start near the outlet where the cord was plugged in. He based this opinion on the patterns of burn marks on the walls in the bedroom.

Bambenek indicated that it was his opinion that there were three highly probable causes of the fire: (1) that the fire was set by someone using an accellerant, including gasoline, kerosine, or fuel oil; (2) the extension cord was “pinched” by the door or the weight set; or (3) something heavy fell on the cord. He was unable to choose which of the three possible causes was the actual, cause of the fire due to a lack of data and evidence.

On cross-examination, Bambenek stated that it was possible, but not probable, that the cord was defective and caused the fire. He also agreed with counsel for State Farm that the house was in a substantially different condition on the day he inspected it than it was on the day of the fire. He noted that the debris had been cleared out, and all drywall, flooring, and baseboards had been removed.

Bambenek also stated that there was no evidence, other than his sniffer readings and burn patterns, that the fire was set. He also noted that his theory concerning the possibility that the door pinched the cord would be valid only if the extension cord was 15 feet long. In addition, his theory concerning the possibility that a heavy object, such as the weight set, fell on the cord and caused the damage would be valid only if the weight was on the cord for a long period of time to “provide an extremely high local pressure.”

The trial court also allowed counsel for Keith Consago to conduct a demonstration, over defendant’s objection, using the sniffer. Counsel had Bambenek pour two or three drops of naphtha, a petroleum distillate used in cigarette lighters, on a piece of paper. The sniffer detected the presence of a flammable vapor after he did so. After six minutes, Bambenek was able to detect “[a] little but not as much.” He agreed with counsel that there would be virtually none of the naphtha vapors left after another five minutes.

On redirect examination, Bambenek stated that the result of his in-court experiment would have been different- had he used a heavier petrochemical distillate and poured it on a piece of wood flooring. He noted that a wood floor, like that present in the house, has “a lot of interspacial spaces or nooks and crannies where the liquid can go and be retained by adsorption as well as capillary action.”

After Bambenek’s testimony, defendant recalled Robert Rose to testify and then rested. Following closing arguments, the jury returned a verdict in favor of plaintiffs on count III (breach of the implied warranty) and in favor of defendant on count I (unreasonably dangerous product). Damages were awarded to State Farm in the amount of $55,562.77 and to Consago in the amount of $7,200. The jury also answered the following special interrogatory:

“Did a defect or defects exist in the extension cord when it left the manufacturer’s control which made the extension cord unreasonably dangerous?
Yes_
No __ X_”

Following arguments of counsel, the trial court entered judgment on the jury’s verdict. Defendant filed a timely notice of appeal.

On May 19, 1989, State Farm filed a petition requesting the court to award it $17,122.09 in attorney fees and expenses pursuant to section 110(d)(2) of the Act (15 U.S.C. §2310(d)(2) (1976)). On May 26, 1989, Consago filed a similar petition requesting $13,253.82 for attorney fees and expenses. Following two separate hearings, the trial court denied the petitions. With respect to State Farm’s petition, the court stated:

“In the sound exercise of judicial discretion, the court finds the award of fees to be not appropriate, and also notes that no evidence has been offered as to their reasonableness or necessity. There is nothing in evidence on those issues.”

As to Consago’s petition, the court indicated:

“It was not only a close question on liability. I would be a little stronger in my choice of words and describe it as a very questionable liability case. It did present an issue of fact for the jury. I find no bad faith in the denial of liability in the case. I find it to be very inappropriate to award attorney’s fees or costs in light of the totality of the circumstances about this case, so the motion and petition are denied.”

Both plaintiffs filed timely notices of appeal.

We will first address the issues raised in defendant’s appeal. Defendant first contends that the trial court erred in not entering judgment based on the special interrogatory. Defendant points out that the jury’s finding that no defect existed when it left the manufacturer’s control was fatally inconsistent with its finding in favor of plaintiffs on the implied warranty of merchantability count.

Initially, we must consider plaintiffs’ argument that defendant waived its contention concerning the inconsistent verdicts. Plaintiffs assert that defendant failed to object to the jury instructions and verdict forms in this case and also failed to tender alternative forms to support its argument on appeal, thus resulting in a waiver of the argument on appeal. See Deal v. Byford (1989), 127 Ill. 2d 192, 202-03.

We find that defendant did not waive its right to contest the alleged inconsistencies in the verdicts rendered in this case. During the trial, plaintiffs utilized the same evidence to support two separate but similar theories of recovery. Thus, by necessity, there was a possibility that the jury would return verdicts which were inconsistent. This is. apparently the reason why the trial court agreed to use a special interrogatory to test the jury’s general verdict. During the instructions conference, counsel for defendant stated:

“As I understand the law, I have a right to submit a special interrogatory to test the general verdict. I believe this interrogatory does that in that if the jury finds there was no defect in the product when it left the manufacturer’s control, there is no basis for the general verdict for the plaintiffs to stand under either count of the complaint.”

The court then stated: “It’s given.”

We note that defendant did raise its argument concerning the alleged inconsistent verdicts in its post-trial motion. Under the facts in this case, we find that defendant did provide the trial court with a sufficient opportunity to consider the merits of its argument, thus preserving the alleged error for appeal.

Section 2 — 1108 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1108) provides that, “[w]hen the special finding of fact is inconsistent with the general verdict, the former controls the latter and the court may enter judgment accordingly.” Thus, the relevant inquiry is whether the answer to the special interrogatory is inconsistent with the general verdict. (Ciborowski v. Philip Dressler & Associates (1982), 110 Ill. App. 3d 981, 989.) If it is inconsistent, and the answer to the special interrogatory is not against the manifest weight of the evidence, then judgment should be entered based on the special interrogatory rather than on the general verdict. (Sangster v. Van Hecke (1977), 67 Ill. 2d 96, 100; Borries v. Z. Frank, Inc. (1967), 37 Ill. 2d 263, 265-66; Ciborowski, 110 Ill. App. 3d at 989.) As Borries pointed out, the reason for this rule is that a jury more clearly understands a particularized special interrogatory than a composite of all the questions in a case. 37 Ill. 2d at 266.

In determining whether the special finding was inconsistent with the general verdict, the evidence itself should not be considered. (Ciborowski, 110 Ill. App. 3d at 989.) Furthermore, all reasonable presumptions must be exercised in favor of the general verdict. 110 Ill. App. 3d at 989.

In the present case, defendant argues that the answer to the special interrogatory was inconsistent with the general verdict as a matter of law. Defendant contends that plaintiffs were required to prove that the extension cord was defective at the time it left the manufacturer’s control before they were entitled to recover under either theory of liability before the jury. However, the jury found in favor of plaintiffs on the implied warranty count and in favor of defendant on the strict liability count.

Other courts have been faced with similar situations in determining the relationship between these two theories of liability. This court has previously stated:

“[T]he theories of breach of implied warranty and strict liability are nearly identical. It has been stated that a breach of implied warranty theory is a form of strict liability without the necessity of proving negligence or fault on the part of the defendant. [Citation.] ‘[T]he strict liability theory is essentially the liability of implied warranty divested of the contract doctrines of privity, disclaimer and notice.’ ” Nave v. Rainbo Tire Service, Inc. (1984), 123 Ill. App. 3d 585, 592-93, quoting Dunham v. Vaughan & Bushnell Manufacturing Co. (1967), 86 Ill. App. 2d 315, 333, aff’d (1969), 42 Ill. 2d 339.

Furthermore, the court in 141 South Main, Inc. v. Magic Fingers, Inc. (1977), 49 Ill. App. 3d 724, addressed a similar case involving products liability and breach of implied warranty of merchantability counts. The court addressed the plaintiff’s argument by analyzing both counts under the same heading. (141 South Main, 49 Ill. App. 3d at 727.) The court indicated that one of the elements that the plaintiff must prove in its prima facie case was that the “condition existed at the time it left the defendant’s control.” 49 Ill. App. 3d at 727.

A simHar situation to the case at bar was presented in Livingston Service Co. v. Big Wheels, Inc. (1981), 96 Ill. App. 3d 591. In Livingston, the plaintiff’s fertilizer spreader caught on fire and burned. The plaintiff sued the manufacturer of the vehicle, alleging a breach of the implied warranty of merchantability, along with a strict HabHity for defective products count. The court held that the plaintiff, under both counts, must establish that there was a defect in the vehicle which existed at the time it left the defendant’s possession. Livingston, 96 Ill. App. 3d at 593.

We agree with the reasoning in Livingston and hold that plaintiffs were required to prove that a defect existed in the extension cord before they could recover on either count. It is evident that the presence of a manufacturing defect was the only way in which plaintiffs’ proof suggested that the extension cord was unmerchantable. Paul Hansen, an engineer who testified for plaintiffs, stated that it was his opinion that the extension cord caused the fire due to a defect in the insulation of the cord. Hansen further indicated that the defect existed at the time the cord left the manufacturer’s control and resulted in an electrical current leak which “increased progressively with time.” Thus, in order for the jury to render a verdict in favor of plaintiffs, it must have found that there was a defect in the cord. However, it answered in the negative a special interrogatory concerning the existence of a defect.

We believe that the jury’s answer to the special interrogatory was inconsistent with its verdict rendered on the breach of warranty count. Under the proof elicited in this case, either a defect existed in the cord which caused the fire, or no defect existed. Given that the jury answered the special interrogatory by determining that no defect existed, we must reverse the jury’s general verdict in favor of plaintiffs on the breach of implied warranty count based on this inconsistency. In doing so, we note that there was sufficient evidence to support the jury’s answer to the special interrogatory, and thus its answer was not against the manifest weight of the evidence. See Borries, 37 Ill. 2d at 265-66; Ciborowski, 110 Ill. App. 3d at 989-90.

In making our determination, we are mindful of the decision in Malawy v. Richards Manufacturing Co. (1986), 150 Ill. App. 3d 549. In Malawy, the court determined that the plaintiff was not required to establish evidence of a defect in a product in order to recover for a breach of an implied warranty. (Malawy, 150 Ill. App. 3d at 559-60.) The court indicated that the relevant inquiry in an implied warranty case was whether the product conformed to the standards of merchantability, as established by th,e contractual relationship. (150 Ill. App. 3d at 560.) Thus, evidence of a defect in the product was merely evidence of nonconformity according to Malawy and was not required in order to prevail on a breach of an implied warranty of merchantability cause of action.

We, however, decline to follow the rationale espoused in Malawy. Instead, we agree with the line of cases which has recognized the inherent similarities between implied warranty of merchantability and strict liability causes of action. While these causes of action are not exactly identical, these cases have determined that the existence of a defect in a product is a necessary requirement to prevail under either theory. See Nave, 123 Ill. App. 3d at 592-93; Livingston Service, 96 Ill. App. 3d at 593; 141 South Main, 49 Ill. App. 3d at 727.

Because we have determined that this case must be reversed due to the inconsistent verdicts, we need not address defendant’s other contentions on appeal. Furthermore, our disposition on this issue also makes it unnecessary for us to consider plaintiffs’ cross-appeals concerning the propriety of the trial court’s, ruling on the attorney fee petitions. See 15 U.S.C. §2310(d)(2) (1976) (fees and expenses can be awarded only if the “consumer finally prevails”).

Finally, we note that we could have disposed of this matter on an issue not presented by the parties. We are hesitant to deprive the litigants of an opportunity to present argument. Therefore, we have not decided this matter on the issue of the necessity of privity in a situation where there is only property damage. Although not raised on appeal (but raised in a motion to dismiss which the trial court denied), it appears that the cause of action based on implied warranty does not lie here because there is no privity of contract. Our supreme court has not extended the personal injury exception to the requirement of privity to contract actions which only allege property damage. (Board of Education v. A, C & S, Inc. (1989), 131 Ill. 2d 428, 460-61.) If, as it appears, no cause of action exists, all of the issues raised as to the implied warranty count would fail. We could have overlooked the waiver of this issue in this particular situation as it involves a pure question of law. (Hux v. Raben (1967), 38 Ill. 2d 223, 225.) However, we are very reluctant to address an issue which the parties themselves have not raised, and we elect not to do so in this case, although we call to the attention of the parties this significant legal question. We also note that the result would not change if we were to decide this case on the privity issue.

For these reasons, the judgment of the circuit court of Kane County upholding a jury verdict in favor of plaintiffs on the breach of warranty of merchantability count is reversed. The court’s orders denying plaintiffs attorney fees and expenses are affirmed.

Affirmed in part; reversed in part.

GEIGER, J., concurs.

JUSTICE REINHARD,

specially concurring:

The judgment of the circuit court should be reversed but upon a different basis than the analysis contained in the majority opinion.

Plaintiff’s cause of action in the amended complaint sought recovery in count I on a strict liability in tort theory and in count III on a breach of the implied contractual warranty of merchantability theory. The implied-warranty count was based on section 2 — 314 of the Uniform Commercial Code (UCC) (Ill. Rev. Stat. 1985, ch. 26, par. 2 — 314) and sought property damages and recovery for loss of use of real estate and personal property resulting from a fire. It is apparent from a reading of the implied-warranty count that plaintiff sought recovery against defendant as the manufacturer of the extension cord and not as the immediate seller of the extension cord to its subrogor.

In the trial court, defendant filed a motion to dismiss count III on the basis that there was no privity of contract between plaintiff (who at the time was the subrogor) and defendant. The motion was denied in the trial court. This issue has not been raised by defendant on appeal. Nevertheless, because it is the responsibility of the reviewing court for a just result and for the maintenance of a sound and uniform body of precedent, this court may sometimes override the considerations of waiver that stem from the adversary character of our system and decide a case on a ground not raised by the parties. (Hux v. Raben (1967), 38 Ill. 2d 223, 224-25; see also Schutzenhofer v. Granite City Steel Co. (1982), 93 Ill. 2d 208, 210-11; Champaign National Bank v. Landers Seed Co. (1990), 194 Ill. App. 3d 1019, 1022-25.) In the case at bar, the issue is one of law, and the precedent is clearly established by a decision of our supreme court. I, therefore, believe this is one of those cases where the waiver rule should be relaxed, although normally I agree the waiver rule should apply where the parties have not briefed an issue which the reviewing court could find dispositive of the appeal. Should defendant wish to challenge the legal basis on which I would decide the case, it may do so in a petition for rehearing.

In Board of Education v. A, C & S, Inc. (1989), 131 Ill. 2d 428, the court held that, where the complaint alleges only that there has been property damage in a contract action based upon breach of implied warranties, plaintiffs must allege privity of contract with the defendant to state a cause of action. (131 Ill. 2d at 461-62.) It is evident from the pleadings and the proofs at trial that plaintiff is not in privity with the defendant herein, which is the manufacturer of the extension cord. Thus, this is the proper basis on which this appeal should be decided. As no cause of action in contract for breach of the implied warranty of merchantability lies, the judgment of the circuit court on this count must be reversed.

The error in proceeding on this improper count is compounded by this court’s failure properly to separate the strict liability count and the implied warranty of contract count in reviewing the use of the special interrogatory. The special interrogatory is clearly one which, by its language, is applicable only to the strict liability count. It reads as follows: “[d]id a defect or defects exist in the extension cord when it left the manufacturer’s control which made the extension cord unreasonably dangerous?” Consequently, in applying the answer to the special interrogatory as well to the verdict for plaintiff in the implied warranty contract action, the majority has blurred the distinction in the issues and elements to be proved in a contract action based on implied warranty of merchantability and a tort action in strict liability.

The majority cites one line of cases to establish the proposition that the “ ‘strict liability theory is essentially the liability of implied warranty divested of the contract doctrines of privity, disclaimer and notice.’ ” (Nave v. Rainbo Tire Service, Inc. (1984), 123 Ill. App. 3d 585, 592-93, quoting Dunham v. Vaughan & Bushnell Manufacturing Co. (1967), 86 Ill. App. 2d 315, 333, aff’d (1969), 42 Ill. 2d 339; Livingston Service Co. v. Big Wheels, Inc. (1981), 96 Ill. App. 3d 591.) From this, the majority concludes that a plaintiff must prove that a “defect” exists in a product before recovery can be had under either theory. The line of cases emanating from Dunham, however, does not deal with the precise question of whether a condition which renders a product unmerchantable is legally identical to a condition which would render a product unreasonably dangerous. While strict liability in tort may closely resemble its ancestor, the common-law implied warranty, it is different from the entirely contractual implied warranties recognized today under the UCC. See Board of Education v. A, C & S, Inc. (1989), 131 Ill. 2d 428, 439-51, 460-63.

The majority rejects the conclusion of the court in Malawy v. Richards Manufacturing Co. (1986), 150 Ill. App. 3d 549, 560, that “a ‘defect’ in a product is not required to be established to sustain liability for the breach of an implied warranty.” Although the majority rejects Malawy, it commits the same error displayed in that case when it attempts to ascribe inherent legal meaning to the term “defect.” Malawy states that the “theory of strict liability in tort imposes liability upon the manufacturer of goods only if there was a ‘defect’ when they left the manufacturer’s control.” (Malawy, 150 Ill. App. 3d at 559.) In point of fact, proving just the existence of a “defect” in a product is not sufficient for recovery under either strict liability or breach of the implied warranty of merchantability. While a product might, under either theory, be termed “defective” in a generic sense, this is not a term of art giving rise to legal equivalency between the causes of action merely because both deal with “defective” products. The comments to section 402A state that the rule of strict liability “applies only where the defective condition of the product makes it unreason ably dangerous to the user or consumer.” (Emphasis added.) (Restatement (Second) of Torts §402A, comment i, at 352 (1965).) Thus, a product might be termed “defective” and still not rise to the level of being unreasonably dangerous. See McCracken v. Westinghouse Air Brake Co. (1981), 103 Ill. App. 3d 26, 30 (defect breaches a strict liability duty only if users of the product are exposed to an unreasonable risk of harm).

Similarly, section 2 — 314 of the UCC (Ill. Rev. Stat. 1989, ch. 26, par. 2 — 314), which establishes the implied warranty of merchantability on which plaintiff’s contract claim is based, does not define a breach in terms of whether a product is “defective.” Instead, section 2 — 314(2) sets out six separate tests of merchantability, including the requirement that goods be “fit for the ordinary purposes for which such goods are used.” (Ill. Rev. Stat. 1989, ch. 26, par. 2 — 314(2)(c).) Thus, Malawy is correct, in part, in holding that an alleged breach of the implied warranty of merchantability must be examined not by the term “defect,” but by whether the product fails to meet one of the criteria set out in section 2 — 314(2). Malawy, 150 Ill. App. 3d at 560.

Accordingly, I believe that the majority incorrectly determined that the negative response to the special interrogatory precludes recovery based on breach of the implied warranty of merchantability. However, because I believe that the absence of privity between the parties defeats any recovery for breach of the implied warranty, I concur in the result reached by the majority.


source: Caselaw Access Project

author: JUSTICE GEIGER JUSTICE DUNN,

license: Public Domain

text:
    RICHARD KUS, Plaintiff-Appellant, v. SHERMAN HOSPITAL, Defendant-Appellee.
    Second District
    No. 2 — 89—1309
    Opinion filed September 28, 1990.
    Rehearing denied November 9, 1990.

      DUNN, J., dissenting.
    John M. Lamont, of Thompson & Lamont, P.C., of Aurora (W. Mark Masur, of counsel), for appellant.
    Judith L. Hart, of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Lisle, D. Kendall Griffith, of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, and David P. Meyer, of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Wheaton (Robert G. Black, of counsel), for appellee.
   JUSTICE GEIGER

delivered the opinion of the court:

The plaintiff, Richard Kus, appeals from the trial court’s order granting the defendant’s, Sherman Hospital’s, motion to dismiss the plaintiff’s negligence complaint. The defendant brought its motion to dismiss under sections 2 — 622 and 2 — 619(a)(5) of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 622, 2— 619(a)(5)). The trial court granted the motion, finding that the plaintiff’s complaint lacked the necessary affidavit attesting to the soundness of the complaint pursuant to section 2 — 622.

The plaintiff raises three issues in his appeal which can be summarized as follows: (1) whether the plaintiff’s complaint sounds in “healing art malpractice” which would require a section 2 — 622 affidavit; (2) if the plaintiff’s complaint sounds in healing art malpractice, then whether section 2 — 622 is unconstitutional; and (3) whether the trial court abused its discretion in not allowing the plaintiff an opportunity to amend his complaint to include a section 2 — 622 affidavit. We reverse and remand.

On July 14, 1989, the plaintiff filed a one-count complaint against the defendant alleging the following. On July 15, 1985, the defendant, a certified institution entitled to conduct clinical investigations of intraocular lenses, admitted the plaintiff into its facilities to have Dr. Gordon Q. Vancil implant a Style 100 Americal intraocular lens into the plaintiff’s left eye. Prior to the plaintiff’s implant, the Federal Drug Administration (FDA) issued a July 3, 1985, order withdrawing approval of the Style 100 Americal intraocular lens. After the FDA order, but before the plaintiff’s implant, Americal International Corporation (Americal), the intraocular lens manufacturer, notified the defendant of the FDA’s withdrawal order.

The plaintiff alleged that the defendant was negligent in permitting Dr. Vancil to implant a Style 100 Americal intraocular lens into the plaintiff’s left eye after the defendant knew of the FDA’s order withdrawing approval of the lens. The plaintiff further alleged that until June 23, 1989, when the plaintiff’s attorneys reviewed Americal’s records pursuant to a production request from a prior pending suit against Americal, he did not know and had no reason to know that Americal had notified the defendant that the FDA had withdrawn its approval. As a result of the defendant’s alleged negligence, the plaintiff lost the vision in his left eye and incurred damages.

In lieu of an answer, the defendant filed a motion to dismiss pursuant to sections 2 — 619 and 2 — 622 of the Code (Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 619, 2 — 622), contending that the plaintiff’s complaint lacked the proper section 2 — 622 affidavit (see HI. Rev. Stat. 1989, ch. 110, par. 2 — 622(a)), and that the plaintiff’s complaint was barred by the two-year statute of limitations (see Ill. Rev. Stat. 1989, ch. 110, par. 13 — 212). Attached to the defendant’s motion was the plaintiff’s complaint and his first amended complaint in the related case No. 88 — L—0033 against Dr. Vancil and others; the complaint in case No. 88 — L—0033 sounded in negligence and included a section 2 — 622 affidavit.

The plaintiff responded to the defendant’s motion, arguing that section 2 — 622 was unconstitutional or, in the alternative, that section 2 — 622 was inapplicable to this case. As a second alternative, the plaintiff argued that, if section 2 — 622 were applicable, the dismissal should be without prejudice and leave to amend the complaint should be granted. The plaintiff further responded that his complaint should not be barred by the statute of limitations since he alleged that he “discovered” the alleged negligence only months before he filed this complaint, well before the applicable statute of limitations had run.

On November 21, 1989, the trial court granted the defendant’s motion, holding that section 2 — 622 was constitutional and finding that section 2 — 622 was applicable to the facts of this case. During the hearing on the defendant’s motion, the trial court allowed the defendant to amend its motion to reflect that the motion was brought pursuant to Code sections 2 — 619(a)(9), which bars a complaint, through “other affirmative matter” which defeats the claim, and 2 — 622, not under section 2 — 619(a)(5), which bars a complaint not filed within the statute of limitations (Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 619(a)(5), (a)(9), 2 — 622, respectively). The defendant’s motion had previously relied upon section 2 — 619(a)(5) of the Code. The trial court dismissed the plaintiff’s action. This timely appeal followed.

Before reaching the primary issues raised on this appeal, we address two motions raised during its pendency. The plaintiff moves to amend his complaint instanter, and the defendant objects to the motion. The defendant, moves to strike the plaintiff’s reply brief, and the plaintiff responds objecting to the motion. We have taken both motions and their attendant objections with the case.

The plaintiff’s motion to amend consists of his conclusory assertions that the amendment is necessary to clarify his allegations (1) that the defendant owed him a recognized duty of care; (2) that the defendant would not be prejudiced by the amendments; and (3) that the amendment is consistent with the facts pleaded in the complaint. The plaintiff attaches as “Exhibit A” to the motion a copy of his proposed first amended complaint which attaches three exhibits to the original complaint.

We find that, since the plaintiff has failed to follow the proper procedure for requesting relief of this kind, we cannot allow the plaintiff’s amendment. Supreme Court Rule 362 provides, among other things, that .motions to amend pleadings in the appellate court should be supported by affidavit and that they “must show the amendment to be necessary, [and] that no prejudice will result to the adverse party if the amendment sought is permitted.” (Emphasis added.) See 107 Ill. 2d R. 362(b).

The plaintiff here merely concludes, without an affidavit, that the amendment is necessary and that the defendant would not be prejudiced by the amendment. Such conclusions do not comply with Supreme Court Rule 362. (See Doherty v. Kill (1986), 140 Ill. App. 3d 158, 165-66.) We therefore deny the plaintiff’s motion.

We next address the defendant’s motion that we strike portions of the plaintiff’s reply brief. The defendant objects to the reply brief’s mention of the plaintiff’s proposed amended complaint and also contends that the brief adds an argument not raised in his appellant’s brief.

Supreme Court .Rule 341(g) provides that the “reply brief, if any, shall be confined strictly to replying to arguments presented in the brief of the appellee and need contain only Argument.” (113 Ill. 2d R. 341(g).) We find that the plaintiff’s reply brief reference to his proposed amended complaint clarified and reiterated his opening brief’s argument that section 2 — 622 did not apply to his complaint.

Regarding the defendant’s argument that the plaintiff raised a new argument in his reply brief, we observe the following. In its brief, the defendant argued that even if the plaintiff would prevail in his argument that section 2 — 622 did not apply to this case, this court should affirm the trial court’s decision since the plaintiff’s complaint was barred under the applicable statute of limitations. We find that in the portion of the reply brief to which the defendant objects, the plaintiff merely responded to the defendant’s statute of limitation argument. That response was allowed under Supreme Court Rule 341(g) (113 Ill. 2d R. 341(g)). We deny the defendant’s motion to strike portions of the plaintiff’s reply brief.

We now turn to the plaintiff’s first-briefed issue on appeal: whether his complaint sounds in “healing art malpractice” which would require a section 2 — 622 affidavit. The plaintiff argues that his complaint does not fall within the purview of section 2 — 622 since it is a complaint sounding in “administrative hospital negligence,” not a complaint sounding in healing art malpractice. Section 2 — 622 of the Code provides in pertinent part:

“(a) In any action, whether in tort, contract or otherwise, in which the plaintiff seeks damages for injuries or death by reason of medical, hospital, or other healing art malpractice, the plaintiff’s attorney *** shall file an affidavit [supporting the soundness of the action].” Ill. Rev. Stat. 1989, ch. 110, par. 2— 622(a).

In determining whether section 2 — 622 is applicable, the term “healing art malpractice” is to be interpreted broadly. (Bernier v. Burris (1986), 113 Ill. 2d 219, 226-27.) However, not every patient injury sustained in a hospital results from “healing art malpractice.” (Kolanowski v. Illinois Valley Community Hospital (1989), 188 Ill. App. 3d 821, 823.) The term does encompass the “entire branch of learning dealing with the restoration of physical or mental health.” Lyon v. Hasbro Industries, Inc. (1987), 156 Ill. App. 3d 649, 654.

The plaintiff argues that, since his complaint is devoid of any allegation of improper medical care and treatment by either the defendant’s nurses or staff, he need not comply with section 2 — 622.

In Kolanowski v. Illinois Valley Community Hospital (1989), 188 Ill. App. 3d 821, the plaintiff presented the same argument that the plaintiff does here. The appellate court affirmed the trial court’s finding that section 2 — 622 was applicable where the hospital allegedly knew that the plaintiff was partially paralyzed yet did not supervise him or place proper restraints around his bed to prevent him from injuring himself. (188 Ill. App. 3d at 824.) The appellate court determined that, if the plaintiff alleges that the result of the hospital’s negligence was directly related to the plaintiff’s medical condition, then the gravamen of the complaint sounds in healing arts malpractice; the court then found that the proper levels of supervision and restraint were determined by the plaintiff’s medical condition and, therefore, involved medical judgments which brought the claim under the Healing Arts Malpractice Act. See 188 Ill. App. 3d at 825.

Here, the plaintiff’s complaint alleges that the defendant was negligent in allowing Dr. Vancil to perform the intraocular lens implant using a Style 100 Americal intraocular lens after the FDA had withdrawn its approval of the device. As in Kolanowski, the defendant’s alleged negligence is based on conduct which is not measured by common knowledge, but requires medical knowledge, i.e., should the treatment of the plaintiff’s condition include the use of the Style 100 lens after the FDA has withdrawn its approval of the device? As such, the plaintiff must comply with section 2 — 622.

The second issue on appeal is whether section 2 — 622 is constitutional. The plaintiff argues that we should follow the case of DeLuna v. St. Elizabeth’s Hospital (1989), 184 Ill. App. 3d 802, 810, appeal allowed (1989), 127 Ill. 2d 614, where the Appellate Court, First District, held that section 2 — 622 is unconstitutional.

Recently, this court, in Premo v. Falcone (1990), 197 Ill. App. 3d 625, rejected the DeLuna reasoning and relied on our prior decision in Bloom v. Guth (1987), 164 Ill. App. 3d 475, 478-79, which found section 2 — 622 to be constitutional. (Premo, 197 Ill. App. 3d at 633.) We find no reason to depart from the Bloom and Premo holdings, and we therefore find that the trial court did not err in holding that section 2 — 622 is constitutional.

The third issue on appeal is whether the trial court abused its discretion in dismissing the plaintiff’s complaint with prejudice. The plaintiff’s failure to attach a section 2 — 622 affidavit to his complaint does not require the trial court to dismiss the complaint with prejudice. (McCastle v. Sheinkop (1987), 121 Ill. 2d 188, 192-93.) The trial court is given the discretion, within the facts and circumstances of each case, to determine whether to dismiss the plaintiff’s complaint with prejudice for noncompliance with section 2 — 622. See Wasielewski v. Gilligan (1989), 189 Ill. App. 3d 945, 950.

A review of the facts in this case reveals that the plaintiff believed that his case was not covered under section 2 — 622. His first amended complaint in case No. 88 — L—0033, which sounded in medical malpractice, attached a section 2-622 affidavit. Furthermore, in his response to the defendant’s motion to dismiss, at the oral argument on the motion to dismiss, and in this appeal, the plaintiff asked the court for leave to file an amended complaint to include a section 2 — 622 affidavit if the court found it necessary to include it.

This is not a case where the plaintiff has failed to offer evidence to show good cause for the late filing of a section 2 — 622 affidavit. (See Wasielewski, 189 Ill. App. 3d at 952.) It also is not a case where the plaintiff waited before seeking to amend his complaint to add a section 2 — 622 affidavit. (See Walter v. Hill (1987), 156 Ill. App. 3d 708, 710.) To the contrary, the plaintiff continually has sought to comply with section 2 — 622. We thus find that the trial court abused its discretion in granting the dismissal with prejudice and not allowing the plaintiff leave to amend his complaint. See McCastle, 121 Ill. 2d at 194.

The defendant argues that since a reviewing court can affirm the trial court for any reason presented in the record (see Beckman v. Freeman United Coal Mining Co. (1988), 123 Ill. 2d 281, 286), we should affirm the trial court’s dismissal because the complaint is barred under the statute of limitations (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 212). We find that the defendant’s argument is without merit. The trial court allowed defendant’s oral request to change its section 2 — 619(a)(5) motion to dismiss to a motion under section 2— 619(a)(9).

The record reflects that the defendant has abandoned its section 2 — 619(a)(5) motion. Therefore, we will not address the defendant’s contention that the plaintiff’s complaint is barred under the statute of limitations. See Dubin v. Department of Registration & Education (1942), 380 Ill. 57, 61.

For the foregoing reasons, we reverse the decision of the circuit court of Kane County and remand the cause for further proceedings.

Reversed and remanded.

UNVERZAGT, P.J., concurs.

JUSTICE DUNN,

dissenting:

I respectfully dissent. The judgment of the trial court should be affirmed. I agree with the majority that plaintiff’s complaint sought recovery for healing art malpractice; therefore, a section 2 — 622 affidavit was necessary. I also agree with the majority’s refusal to depart from the prior holdings of this court that section 2 — 622 is constitutional. See Premo v. Falcone (1990), 197 Ill. App. 3d 625, 633; Bloom v. Guth (1987), 164 Ill. App. 3d 475, 478-79.

I cannot concur, however, with the majority’s conclusion that the trial court abused its discretion by denying plaintiff leave to amend his complaint. The trial court never ruled on plaintiff’s motion for leave to amend; the dismissal order makes no mention of the motion. A review of the transcript of the November 21, 1989, hearing on defendant’s motion to dismiss reveals that plaintiff’s attorney never requested a ruling on the motion for leave to amend. A party’s failure to seek a ruling by the trial court on a motion waives for purposes of appeal the issue of whether the trial court should have granted the motion. (Wilson v. Gorski’s Food Fair (1990), 196 Ill. App. 3d 612, 615; Oak Trust & Savings Bank v. Annerino (1978), 64 Ill. App. 3d 1030, 1032.) Furthermore, because plaintiff did not attach a proposed amended complaint with the necessary section 2 — 622 documents to his motion, there is no proposed amended complaint in the record on appeal. This also results in waiver of the issue on appeal. See Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 521.

The question of whether leave to amend a complaint should be granted when plaintiff has failed to comply with section 2 — 622 is committed to the sound discretion of the trial court. (McCastle v. Sheinkop (1987), 121 Ill. 2d 188, 194.) In light of the fact that the trial court never ruled on plaintiff’s motion for leave to amend his complaint, the majority has usurped the trial court’s discretion by ruling that plaintiff should receive leave to amend. I believe this is inappropriate and, therefore, respectfully dissent.


author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES AMOS, Defendant-Appellant.
    First District (4th Division)
    No. 1 — 86—3410
    Opinion filed September 20, 1990.

      Michael J. Pelletier and Martin Carlson, both of State Appellate Defender’s Office, Coffield, Ungaretti, Harris & Slavin, and James Amos, pro se, all of Chicago (J. Timothy Eaton, Steven J. Roeder, and David S. Mandel, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Kenneth T. McCurry, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

After a jury trial, John Amos, defendant, was found guilty of murder (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(a)(1)), home invasion (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 11(a)(1)), attempted armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 8 — 4), and armed violence (Ill. Rev. Stat. 1985, ch. 38, pars. 33A— 1, 33A — 2). Defendant was sentenced to concurrent terms of 30 years for the murder count, 28 years each for the home invasion and armed violence counts, and 15 years for the attempted armed robbery count.

Defendant appeals, seeking the reversal of his conviction and remand of the cause for a new trial or, in the alternative, vacation of all improper multiple convictions. Counsel on behalf of defendant raises the following issues: (1) whether the trial court and the prosecution improperly commented on defendant’s failure to testify; (2) whether the trial court’s order prohibiting defendant from introducing certain exculpatory evidence constitutes reversible error; (3) whether defendant was denied the right to a fair trial due to the prosecution’s improper impeachment of his defense witness; (4) whether the trial court erred in its failure to continue the trial when a “critical” impeachment witness for the defense could not be located; and (5) whether defendant’s multiple convictions were improper and should be reversed.

In addition to the above, defendant raises the following issues in his pro se brief: (1) whether he was denied effective assistance of post-trial counsel; (2) whether he was advised of his right to counsel; (3) whether the prosecution knowingly used perjured testimony; (4) whether improper and prejudicial comments were made by the judge and prosecution; and (5) whether the trial court improperly denied defendant’s oral motion for substitution of judges.

We affirm in part and vacate in part.

At trial, the evidence established that on May 21, 1986, shortly after 2:30 a.m., Harold Sylvester visited Hattie Bennett in her apartment. Bennett had previously observed several people, including defendant and Aaron Trimble, standing outside of her building that morning. Bennett used her apartment as a “cocaine house.” In exchange for a fee, she allowed others to sell or smoke cocaine on her premises.

Sylvester had been in Bennett’s apartment for several minutes when, according to Bennett’s testimony, Trimble and defendant burst into the apartment. Trimble entered first, carrying a shotgun. When Trimble saw Sylvester, he ordered defendant to point the gun that defendant was carrying at Sylvester. Defendant refused; Trimble then demanded that Sylvester repay the $40 that Sylvester owed him. Sylvester promised to repay Trimble when he received his paycheck the following week. Defendant also, allegedly, interceded on Sylvester’s behalf and told Trimble that Sylvester would pay him.

Trimble then told defendant to give him the handgun that he was carrying. In return for the handgun, Trimble gave defendant his shotgun. Trimble, who was enraged, threatened to hit Sylvester with the handgun. While Trimble was threatening Sylvester, defendant held the shotgun with his “hand on the trigger and barrel pointed slightly upwards.”

At some point, Sylvester bent down to pick up a piece of paper. As he was standing up, Trimble shot him. Sylvester, however, was able to leave Bennett’s apartment after he had been shot. Defendant and Trimble followed Sylvester out of the apartment and into the hallway. Bennett testified that on their way out, Trimble told Sylvester that he “ought to shoot him again.”

Officer Darwin Adams of the Harvey, Illinois, police force testified that at approximately 2:44 a.m., on the morning of May 21, 1986, he was called to respond to shots in the area of Bennett’s apartment. When he arrived at Bennett’s apartment, he found Sylvester lying facedown outside of the apartment. Shaki Teas, the deputy medical examiner, later testified that the cause of death was due to a gunshot wound to the chest.

Although defendant chose a pro se defense, the trial court appointed an assistant public defender as standby counsel. Defendant did not testify at trial. He did, however, present Lenora Logan as his sole occurrence witness. Logan testified that defendant was in Bennett’s apartment prior to Sylvester’s arrival. This was also prior to the time that Trimble arrived. She stated that the shooting was an accident. The gun that Trimble held accidentally went off when Sylvester pushed the gun away from him.

After hearing all of the evidence, the jury found defendant guilty of murder, home invasion, armed violence, and attempted armed robbery. It is from this decision that defendant now appeals.

As a preliminary matter, we note that it is not the function of a court of review to retry the defendant. (People v. Phillips (1989), 127 Ill. 2d 499, 509.) There is no issue raised as to the sufficiency of the evidence against defendant. Defendant’s arguments for reversal are based upon alleged errors made by the prosecution or the court. The evidence of defendant’s guilt was overwhelming, and he was properly found guilty beyond a reasonable doubt.

We will now address the first of five issues raised by defendant through his counsel. It is contended that reversible error was committed when comments were made concerning defendant’s failure to testify. Specifically, defendant points to remarks made by the State alluding to his failure to subject himself to cross-examination; remarks made that jurors should not consider evidence by witnesses that do not take the stand; and implications made that defendant had the burden to prove his innocence.

Defendant also points to a remark made by the court, in sustaining a hearsay objection, which highlighted his failure to testify. While conducting a redirect examination of Logan, defendant asked her if he had been involved in a conversation with Trimble concerning Sylvester. The trial court informed him that only he could testify to this alleged conversation but that he had a right to take the stand.

The State maintains that defendant waived consideration of this issue by failing to object to these alleged improprieties both at the time the remarks were made and in his two motions for a new trial. (People v. Enoch (1988), 122 Ill. 2d 176.) We agree.

When a defendant represents himself, he assumes the responsibility for conducting his own defense and is not entitled to favored treatment. (People v. Beardsley (1985), 139 Ill. App. 3d 819, 826.) We cannot give defendant special consideration due to his failure to raise these objections at the appropriate time. We find, therefore, that defendant waived this issue.

Even assuming, arguendo, that defendant had not waived this issue, we find that because of the overwhelming nature of the evidence against defendant the error, if any, is harmless beyond a reasonable doubt. See People v. King (1972), 4 Ill. App. 3d 942.

The second issue raised is whether the trial court’s prohibiting certain exculpatory evidence from being introduced constitutes reversible error. The trial court sustained the State’s hearsay objection to a question defendant posed to Logan concerning a conversation he had with Trimble. Defendant now argues that evidence of this conversation would show that he had tried to prevent the shooting by telling Trimble that Sylvester would repay the $40 owed to him.

Defendant contends that this question would not evoke a hearsay response or, in the alternative, if a hearsay response had been evoked it would have come within one of the exceptions to the hearsay rule. Hearsay has been defined as testimony given in court, of a statement made out of court, being offered as an assertion to show the truth of the matters asserted therein. (People v. Carpenter (1963), 28 Ill. 2d 116, 121.) Defendant argues that the question was not offered to get a response concerning evidence of the facts asserted, but as circumstantial evidence that he acted to intercede on Sylvester’s behalf.

The State maintains that since defendant made no offer of proof indicating what Logan’s response would be, it would be improper for the court to allow defendant to pose such a question based on speculation that the response would not have contained hearsay or that it would have been within one of the hearsay exceptions. We agree.

“Generally, an offer of proof must be tendered to preserve for review a question of the wrongful exclusion of evidence. [Citations.] *** [WJhere the trial court is sufficiently aware of the purpose for which the evidence is offered and the substance of the testimony sought to be elicited, an offer of proof need not be tendered.” (People v. Christen (1980), 82 Ill. App. 3d 192, 196.) In the instant case, there is nothing in the record that indicates the trial court was aware of the purpose or the substance of the testimony. Under the circumstances, an offer of proof should have been made to preserve this issue for review.

Further, as the State correctly argues, defendant must show that the outcome of his trial would have been different had the excluded testimony been admitted. (People v. Gomez (1984), 127 Ill. App. 3d 551, 556.) The evidence against defendant was overwhelming. We do not find that the outcome would have been affected if Logan had been allowed to testify to the conversation Trimble had with defendant.

The third issue raised is whether defendant was denied a fair trial due to the State’s allegedly improper impeachment of defendant’s sole occurrence witness, Lenora Logan. The State maintains that this issue was waived by defendant’s failure to object to the State’s method of impeachment of this witness. Although this issue may have been waived, we do not find that the State’s impeachment of Logan rises to the level of reversible error.

Defendant argues that the impeachment was improper because: (1) the State never perfected its impeachment of Logan concerning conflicting statements she allegedly made concerning the details of the incident; (2) the State improperly went into collateral issues of her previous convictions after Logan had admitted to these convictions; .and (3) the State impeached her concerning an arrest and not a conviction.

The first point defendant raises concerns Logan’s testimony that she was in the same room with Trimble and defendant when Sylvester was shot. The State, in impeaching her, brought out the fact that, prior to trial, she stated that she had been in another room when the shooting took place. Defendant argues that the State never attempted to prove up these allegedly inconsistent statements which destroyed the credibility of his sole occurrence witness.

The incomplete impeachment of a witness rises to the level of reversible error when the allegedly unfounded insinuation, that the witness is incredulous, is substantial, repeated and definitely prejudicial. (People v. Redman (1985), 135 Ill. App. 3d 534, 542.) Although the insinuation was substantial, it was not repeated nor was it prejudicial in light of the overwhelming evidence against defendant.

Defendant’s contentions with respect to the last two points raised are valid. We find that the State unnecessarily delved into Logan’s previous convictions and that her impeachment due to a previous arrest for prostitution was improper. However, we do not find that this conduct rises to the level of reversible error as the outcome of this case would not have been affected had the State properly impeached this witness. The error, therefore, was harmless.

The fourth issue raised is whether the trial court erred by failing to continue the trial until a “critical” impeachment witness could be located. The witness in question was police officer Ron Burge. Officer Burge stated, in his report of the incident, that Bennett had informed him that one of her house guests had opened the door for Trimble. However, at trial Bennett testified that Trimble and defendant burst through her door. Defendant argues that he would have impeached Bennett’s testimony had the trial court allowed him additional time to subpoena Burge. The trial court, defendant contends, abused its discretion in denying the defense a continuance.

The grant or denial of continuances is within the sound discretion of the trial court; the trial court’s disposition will not be disturbed absent a showing of clear abuse of discretion. Moreover, facts must be present showing a diligent effort to procure this witness. (People v. Bryant (1983), 115 Ill. App. 3d 215, 221.) We are not persuaded that defendant did not diligently attempt to procure this witness as the witness in question was one of the State’s witnesses and defendant relied on the State to call this witness. However, we do not find that this rises to the level of reversible error. The verdict did not hinge on the impeachment of this particular aspect of Bennett’s testimony. The error, therefore, was harmless.

Finally defendant argues, through his counsel, that his multiple convictions are improper and must be reversed. Defendant was found guilty of murder, home invasion, attempted armed robbery and armed violence. Since all of the convictions arise from the same act, defendant reasons, all of the convictions must be vacated with the exception of the murder conviction.

The State, on the other hand, maintains that with the exception of the armed violence conviction defendant’s other convictions do not involve lesser included offenses nor do they arise from the same act. We agree.

In People v. King (1977), 66 Ill. 2d 551, 566, the Illinois Supreme Court held that when more than one offense arises from a series of closely related acts and the offenses are not lesser included offenses, convictions with concurrent terms may be entered. In the instant case, with the exception of the armed violence conviction, the offenses, though closely related, are not included in one another. Since these are separate and distinct acts, pursuant to King, concurrent terms may be imposed. However, we vacate the armed violence conviction.

We will now address the five issues raised by defendant in his pro se brief. Defendant first contends that post-trial counsel rendered ineffective representation. Defendant argues that counsel only reluctantly agreed to defend him after he withdrew from his own defense; that counsel did not adequately advise him in the preparation of his defense; and that because counsel was aware that defendant had filed a motion charging ineffective assistance of counsel, a conflict of interest arose.

In Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, the United States Supreme Court established the following two-prong test to determine whether a defendant has been denied effective assistance of counsel: (1) defendant must show counsel’s representation fell below an objective standard of reasonableness; and (2) defendant must show that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.

There must be reasonable probability that the outcome would have been different had it not been for counsel’s ineffective representation. (People v. Bryant (1989), 128 Ill. 2d 448, 458.) However, there is a strong presumption that counsel’s conduct falls within the reasonableness standard. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.

We are not persuaded that post-trial counsel’s representation fell below an objective standard of reasonableness, nor do we find that the outcome would have differed had it not been for counsel’s allegedly ineffective representation. As the State notes, counsel was present throughout the proceedings; she conferred with defendant, reviewed the report of proceedings, and filed a post-trial motion.

Defendant does not state which issues counsel failed to raise that would have resulted in a different verdict. Further, after reviewing the record, we do not find any evidence to support the allegation that counsel did not act as an advocate due to defendant’s motion alleging ineffective representation. In light of the evidence presented against defendant, we find that, pursuant to Strickland, there was no reasonable probability that the outcome would have changed had defendant had different representation.

Next defendant argues that the trial court did not admonish him as to his right to counsel. This contention is simply unfounded. The record reveals that prior to trial the court questioned defendant concerning his choice to defend himself. Defendant informed the court that he understood the consequences of his decision, as he had successfully defended himself on a prior occasion when he was charged with murder. The court, notwithstanding defendant’s prior experience, also appointed standby counsel to assist him in his defense. Defendant’s argument with respect to this issue is completely without merit.

Defendant next contends that the State knowingly used perjured testimony when Bennett testified that Trimble and defendant burst into her apartment. Defendant alleges that, contrary to her testimony, Bennett had previously told Officer Burge that she had voluntarily let them into her apartment. Officer Burge’s police report that allegedly contained Bennett’s statement was never entered into evidence.

We do not find that the inconsistency between Bennett’s testimony and her alleged statement to Officer Burge establishes that the State knowingly used perjured evidence. Mere inconsistencies in testimony do not establish perjury or that the State knowingly used perjured evidence. (People v. Reddick (1969), 107 Ill. App. 2d 123, 131.) Defendant’s contention fails with respect to this issue.

The fourth issue defendant raises for our review is whether the State and the court made prejudicial comments before the jury that constituted reversible error. Defendant argues that the court bolstered the State’s case when it commented that one of the police officers had destroyed his notes concerning an interview with Bennett. This comment was in response to the defendant’s demand for production of these notes. The notes in question had been incorporated into the officer’s police report. Defendant had a copy of this report. We do not find that defendant was prejudiced by this remark. As the State correctly argues, the court merely clarified the fact that the officer took some notes which he later destroyed. The court expressed neither approval nor disapproval of the officer’s actions.

Defendant also contends that the State made prejudicial remarks during closing arguments concerning Lenora Logan’s motive for testifying. The State argued to the jury that Logan had lied on the stand out of fear of reprisal from defendant.

Attorneys are allowed great latitude in closing arguments. (People v. Franklin (1976), 42 Ill. App. 3d 408, 421.) Reversible error, however, exists where improper arguments substantially prejudice the accused. (People v. Cregar (1988), 172 Ill. App. 3d 807, 825-26.) This is particularly applicable where the remarks were extremely prejudicial, deliberately made, and the primary evidence against defendant is circumstantial. (People v. Whitlow (1982), 89 Ill. 2d 322, 342.) Reviewing courts are reluctant to set aside a verdict based upon closing remarks unless such remarks are clearly prejudicial. Franklin, 42 Ill. App. 3d at 421.

We do not find that these remarks rise to the level of reversible error. A prosecutor may charge that a witness has lied as long as that opinion is based on the evidence or reasonable inferences therefrom. (People v. Adams (1982), 106 Ill. App. 3d 467, 474.) The State’s comment was based on its observation of Bennett’s fear of defendant and the fact that Logan had observed defendant with a gun at the time of the incident. We do not find it unreasonable to infer that, under the circumstances of this case, Logan’s motive for her testimony was based on fear of defendant.

Defendant’s final argument concerns remarks made by the court in its refusal to delay trial so that defendant could subpoena Officer Burge. As we previously found, the court did not commit reversible error in refusing to delay trial. We find that the comments made by the court concerning its basis for denying defendant’s request were not prejudicial, as the comments were made out of the presence and the hearing of the jury.

The final issue that defendant raises for review concerns the trial court’s denial of his request to substitute judges. Defendant claims that the trial court judge “seem[ed] to be hostile toward the defense.” Section 114 — 5 of the Code of Criminal Procedure of 1963 (hereinafter Code) provides, in pertinent part:

“(a) Within 10 days after a cause involving only one defendant has been placed on the trial call of a judge the defendant may move the court in writing for a substitution of that judge on the ground that such judge is so prejudiced against him that he cannot receive a fair trial. Upon the filing of such a motion the court shall proceed no further in the cause but shall transfer it to another judge not named in the motion. * * *
* * *
(c) *** [A]ny defendant may move at any time for substitution of judge for cause, supported by affidavit.” Ill. Rev. Stat. 1985, ch. 38, pars. 114 — 5(a), (c).

The right to substitution of judges is not absolute, and defendant, in order to avail himself of such right, must comply with the statute. (People v. Clay (1984), 124 Ill. App. 3d 140, 147.) A defendant cannot complain that he was entitled to substitution of judges after having refused to bring his motion in compliance with the statute. Clay, 124 Ill. App. 3d 147.

Further, lack of specificity in a motion for substitution is a valid reason for denial in the absence of a hearing. Substantiation of such a claim insures that defendant’s allegations of prejudice are not frivolously made. (People v. Marshall (1988), 165 Ill. App. 3d 968, 975.) In the instant case, defendant’s motion for substitution of judges was made orally merely on the basis that the judge “seem[ed] to be hostile.” This motion, however, was not supported by affidavit. Nor do we find, after reviewing the record, evidence of this alleged hostility. We, therefore, find that motion for substitution of judges was properly denied.

Accordingly, the decision of the circuit court is affirmed in part; the armed violence conviction is vacated. As part of our judgment, we grant the State’s request that defendant be assessed $75 as costs and fees for this appeal, pursuant to People v. Agnew (1985), 105 Ill. 2d 275, and People v. Nicholls (1978), 71 Ill. 2d 166.

Affirmed in part; vacated in part.

McMORROW, P.J., and LINN, J., concur.


author: JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHNNY RAY MIMS, Defendant-Appellant.
    First District (4th Division)
    No. 1 — 87—3376
    Opinion filed September 20, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Scott J. Frankel and James H. Reddy, Assistant Public Defenders, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Jane E. Loeb, and Tyra H. Taylor, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Following a jury trial, defendant, Johnny Ray Mims, was found guilty of criminal sexual assault and sentenced to six years in the Illinois Department of Corrections.

On appeal, defendant argues that he should be granted a new trial because the court committed plain error by: (1) allowing the victim’s sister to relate a conversation she had with the victim the day after the alleged rape; (2) admitting into evidence an unsigned transcription of defendant’s inculpatory statements; and (3) ruling that evidence of prior misdemeanor offenses could be used to impeach defendant if he exercised his right to testify in his own defense.

We affirm.

Background

The complaining witness, Rosalind H., testified at trial that she first met defendant on July 4, 1986, when he spoke to her from a car as she walked down the street near her home. The following day, defendant drove by Rosalind’s residence and invited her to join him at the Taste of Chicago. He left when she declined.

Four months later, on October 20, 1986, defendant stopped by her house. Rosalind spoke with him for 20 to 25 minutes. When he invited her to ride with him to pick up a friend who lived nearby, she declined, stating that she was “waiting for somebody.” He persisted, and she eventually agreed to accompany defendant to his friend’s house. They went to pick up Oliver Foster, who asked defendant to return later because he was not yet ready.

Defendant then told Rosalind that she could go with him to “pick up some packages” which contained marijuana. The first attempt to buy marijuana failed and defendant told Rosalind he needed to go to his house to get more money. Defendant drove home and stayed inside for 30 minutes while Rosalind remained in the car. She complained about the time it had taken when defendant returned to the car, but agreed to drive with him to another location so that defendant could purchase marijuana. After they did so, defendant drove back to pick up Foster. When Foster told defendant he still was not ready, Rosalind agreed to go to the park with defendant to smoke some marijuana. On the way, defendant bought a 40-ounce bottle of Red Bull beer.

Instead of going to the park, defendant took Rosalind to a “gravel-like abandoned road” behind the park. No one was around and there were no lights. Defendant rolled a joint and drank some beer. Rosalind testified that she did not drink alcohol. She did accept the marijuana cigarette, however, stating that she “pulled on it” and gave it back. Then she told him she wished to go home.

Defendant put his arm around her, asking what was wrong. She moved away, stating that she was “not into touching.” He became aggressive, grabbing her wrist and swinging his body over upon her. He pinned her hands to her side. She struggled with defendant, who told her to calm down and he would release her.

She struggled with him until they fell out of the car. She got up to run but he grabbed her from behind and they fell. She screamed and he covered her mouth, twisting her arm. He asked if she were “crazy” and told her to be quiet because he had a lot to lose.

Rosalind further testified that he forced her back into the car and shoved her into the back seat. He got on top of her. She was screaming but stopped after defendant threatened to burn her with a light bulb he took from the car. She testified that she was frightened.

Defendant then sexually assaulted her, partially undressing her and forcibly engaging in sexual intercourse with her. During the attack she turned her head to the side and she was crying. Defendant then told her to get up and allowed her to pull up her underwear. She testified that he kept telling her to stop crying and that he was sorry. He said he did not mean to do what he had done. He also told her he always got what he wanted.

Defendant then drove Rosalind home, stopping first to pick up his friend, Foster. Rosalind did not say anything to Foster or defendant during the drive. She sat as far from defendant as possible, staring straight ahead and saying nothing. When he dropped her off at her house she jumped out and defendant followed her, saying that he would see her the next evening.

Rosalind went inside, telling her mother “nothing” when asked what was wrong. She testified that she was frightened and ashamed. Rosalind went into her sister’s room, woke her up, and began crying. She told her sister, Deborah H., that “something happened” with defendant and said she would talk about it later.

The next morning Rosalind and Deborah went on an errand. Rosalind told Deborah the details of the attack and Deborah persuaded her sister to tell their mother what had happened. The victim’s mother, Rosa H., took her daughter to the police station, along with the clothes she had been wearing the night before.

Two days after the assault, Rosalind identified defendant by selecting his photograph from several others.

At trial, Rosa testified that her daughter was crying when she returned home on October 20 and that her dress was torn. Rosalind appeared tense and shaking but did not want to talk.

Deborah, the victim’s sister, corroborated the testimony of Rosa and Rosalind. She testified that Rosalind had come into her room that night and then gave her the details of the attack the following day.

Oliver Foster, defendant’s long-time friend, also testified for the State. He corroborated Rosalind’s testimony regarding the number of times defendant went to pick him up. When he got into the car with defendant and Rosalind, he sat in the back seat. He noticed that Rosalind was “quiet and distant” when defendant leaned over to speak to her and that she stared straight ahead. When she jumped out of the car at her house, defendant followed her and spoke to her, but Foster could not hear the words. She seemed to be in a hurry to get to the house. Then Foster and defendant drove to Foster’s house and talked. Defendant told Foster that Rosalind did not want to have sex with him but that “eventually they had sex.” According to Foster, defendant characterized the whole incident as “scary.”

Other evidence indicated that the seminal material in the victim’s panties could have been defendant’s, that the police found a 40-ounce bottle of Red Bull from the crime scene, and that an officer had found at the scene a letter addressed to defendant.

Defendant agreed to be interviewed and waived his Miranda rights before speaking to the police.

According to the testimony of a police detective and an assistant State’s Attorney, defendant admitted to them that Rosalind did not want to leave with him but that he persuaded her to, and that they went to buy marijuana and beer. He drove her to the gravel road and he began making advances, which were not accepted or returned. He persisted anyway. Rosalind told him to stop but he continued because he was sexually excited. She jumped out of the car, falling in the process, and started screaming. He put his hand over her mouth, telling her to stop screaming and that he had a lot to lose. He told her to get into the back seat and they would have sex, which they did. Then they drove to Foster’s house at about midnight. Defendant claimed that Rosalind told him to come by the next day.

Defendant consented to the search of his car. No clear prints were lifted from the light bulb that he had allegedly used to threaten the victim. He said he had knocked the cover to the dome light off, however, while having sex with the victim. He remembered telling her he “wanted” her, to which she responded, “What about what I want?”

The assistant State’s Attorney who took defendant’s statement testified that he incorporated defendant’s actual words into the transcription. Defendant told him that the statement was accurate but that he would not sign it.

Amie Carroll, defendant’s mother, was the sole witness for the defense. She saw her son between 9:30 and 10 p.m. on October 20, 1986, and noticed someone in his car, although she could not tell whether, the person was male or female. Her son borrowed $5 from her, and she did not see him again because she went to work.

At the conclusion of the proceedings, defendant was found not guilty of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14(aX2)) but guilty of criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12-13(a)(1)).

During the sentencing hearing, the State produced two witnesses, young females, who testified that they had been sexually attacked by defendant. The first witness was 15 years old when defendant enticed her into his car and then drove to a dark, abandoned street behind a building. She was able to struggle and get away when a security guard called the police, who then arrested defendant. The other girl, 12 years old, baby-sat for defendant’s child. She was alone in the apartment with him and asked him to drive her to her grandmother’s house. Instead, defendant tried to grab her breast and would not let her leave until she threatened to tell defendant’s girlfriend and the police.

In mitigation, six witnesses testified as to defendant’s nonviolent nature.

The court imposed a prison term of six years.

Opinion

I

Defendant first argues that he was denied a fair trial because the court allowed Deborah to testify concerning her sister’s statements. He maintains that prior, consistent statements offered to corroborate a victim’s testimony generally are inadmissible, citing People v. Buckley (1976), 43 Ill. App. 3d 53, 356 N.E.2d 1113.

In the pending case, however, defense counsel failed to properly preserve this issue for appeal. The record reveals a single defense objection made during Deborah’s testimony, which did not specify any reason for the objection and which never was renewed. At the time, most of her testimony was in evidence. Furthermore, counsel failed to mention Deborah’s testimony in either of two motions for a new trial. Illinois law requires defendants to object at the time the evidence is offered and to renew the alleged error in the post-trial motion, or it is considered waived. E.g., People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.

Defendant nevertheless characterizes the admission of Deborah’s testimony as “plain error.” Nothing in his brief supports that label, however. The law does caution against admitting statements that do not fit the “spontaneous declaration” exception to the hearsay rule (see People v. Taylor (1971), 48 Ill. 2d 91, 268 N.E.2d 865); however, complaints that corroborate the victim’s testimony may be considered merely cumulative and therefore harmless error. See People v. Jackson (1971), 3 Ill. App. 3d 303, 279 N.E.2d 8.

We also reject defendant’s assertion that his trial attorney’s failure to object to Deborah’s testimony amounts to ineffective assistance of counsel. He does not support this conclusion with reasons or citations, and we note that the trial court expressly commented on the professional conduct and efforts expended by counsel in this case. Ineffective assistance of counsel was raised in a second, untimely motion for new hearing that was filed without leave of court. The court reviewed the pertinent law and held, “[T]he *** standards [of Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052], substantiating ineffective assistance of counsel, are most certainly not met by my review of the notes, my trial notes. Moreover, the motion filed today, if anything, supports the Court’s [prior] evaluation that defense counsel was diligent and effective throughout the trial. Moreover, none of the allegations in this motion substantiate or provide a basis for overruling the jury verdict heretofore rendered in this cause.”

We conclude that counsel’s failure to object to the testimony of the victim’s sister is not the type of serious error that deprives a defendant of his constitutional rights under the sixth and fourteenth amendments.

II

■Next, defendant contends that the admission of an unsigned document (purporting to be his statement) constitutes plain error. He concedes that admissions made by a defendant are generally admissible (People v. Burns (1981), 99 Ill. App. 3d 42, 424 N.E.2d 1298), but contends that since the written statement was unsigned it had no probative value and served only to prejudice the jury. Defendant further argues that since two of the State’s witnesses already had testified about his oral statements, admission of the document into evidence unfairly emphasized their testimony.

Defendant cites no authority for his position that the lack of his signature rendered the written statement inadmissible. Nor does the State cite authority on this issue. Instead, the State contends that since a party’s admissions are substantive evidence of guilt, and the written statement in the pending case incorporated defendant’s own words, it properly corroborated the oral testimony of the officer and State’s Attorney who testified regarding their conversations with defendant.

We note that defendant does not argue that the statement attributed to him was coerced or inaccurate. Defendant had agreed to sign it at one time, but ultimately declined to do so. There is no evidence that he repudiated his statements to the officials.

Our research reveals that the absence of a defendant’s signature on a writing that is offered as his statement or confession will not render it unreliable (and thus inadmissible), as long as a proper foundation has been laid. (See People v. Chattic (1974), 21 Ill. App. 3d 986, 316 N.E.2d 160; People v. McNeil (1968), 99 Ill. App. 2d 273, 240 N.E.2d 721, citing People v. Perkins (1959), 17 Ill. 2d 493, 162 N.E.2d 385.) In general, if there is testimony that the transcript reproduces the actual questions asked and the answers given, the authenticity element is satisfied. (See People v. Wilson (1981), 92 Ill. App. 3d 370, 415 N.E.2d 1315.) In the pending case, however, the State’s Attorney who prepared the statement from his notes admitted that he paraphrased what defendant said and put it into sentence form. He also stated that he used as many of the defendant’s actual words and phrases as possible. Whether this format adequately meets the foundation requirement is uncertain, although at least one court has commented that it could find “no case which authorizes the admission of an unsigned statement which is a paraphrase.” People v. Davis (1988), 166 Ill. App. 3d 1016, 1019, 520. N.E.2d 1220, 1222, appeal denied (1988), 121 Ill. 2d 575, 526 N.E.2d 834.

We believe that the unsigned document prepared by the State’s Attorney should have been excluded for another reason, however. Assuming that the statement was not invalid for want of signature, we nevertheless believe that the document itself should not have gone back to the jury room as a physical exhibit. In Chattic, McNeil, and Wilson, where unsigned statements or confessions were introduced in evidence, the juries were not given the actual written statements to peruse during deliberations. Instead, the statements were read to the juries.

In our opinion, the transcription of defendant’s statement should not have been given to the jury to pore over during deliberations, even if the statement itself contains admissions that corroborate the other oral testimony. Our caution stems from concern over the undue weight that jurors may accord the written word, especially when they must rely on their memories alone when considering the oral testimony.

Moreover, we question the probative value of an unsigned, incriminating statement, even when an attempt is made to establish a proper foundation for its reliability. A defendant may fail or refuse to sign such a document for a number of reasons, but surely one of them is that he does not agree that it accurately reflects what he has said. This danger is greatly reduced when his signature appears on the statement. In the pending case, however, the testimony indicates that defendant confirmed the accuracy of his statement.

Even though we hold that the unsigned, written statement should not have been given to the jury, we do not find that reversible error occurred. The evidence against defendant is overwhelming. Defendant’s admissions were already in evidence through the oral testimony of the two State’s witnesses. Defendant told the police and State’s Attorney details that tracked the victim’s testimony in many respects. For example, defendant admitted that he took Rosalind into a dark, secluded street and made advances which she resisted; she screamed, struggled, and tried to leave the car. He admitted tackling her and taking her back into the car. He told Foster that she had not wanted to have sex with him and that the incident had been “scary,” an odd choice of words if Rosalind were a willing partner. Under these circumstances it is difficult to see how the jury could have found that the victim was a willing partner in defendant’s sexual activities.

In fact, defendant did not put on a formal defense, leaving the State to prove all elements of the offenses charged beyond a reasonable doubt. Defendant has not raised reasonable doubt as a grounds for reversal and we conclude that the submission to the jury of defendant’s unsigned statement was harmless error.

Ill

Defendant also challenges the trial court’s ruling concerning the possible admission of defendant’s prior, misdemeanor offenses to impeach him if he chose to testify at trial. The record reveals that two young girls testified at the sentencing hearing as to defendant’s alleged attempts to force himself on them sexually. The jury did not hear this evidence at trial, however, because the trial court granted defendant’s motion in limine barring its use during the State’s case in chief. Defendant’s challenge on appeal is based on the trial court’s failure to further exclude this evidence for impeachment purposes.

Defendant argues that impeachment through evidence of other crimes can only be allowed if the evidence fits the requirements of People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695. Under that decision, the trial court may permit evidence of a defendant’s prior convictions, under certain circumstances. Generally, if the conviction is for a felony or for any offense which involves “dishonesty or false statements,” the court may permit the State to impeach defendant’s credibility therewith, as long as the trial court determines that its probative value outweighs its prejudicial impact. Montgomery, 47 Ill. 2d 510, 268 N.E.2d 695; see also People v. Spates (1979), 77 Ill. 2d 193, 395 N.E.2d 563 (any misdemeanor based on lying, deceiving, cheating, or stealing may be used for impeachment).

Defendant maintains that there is no authority for using misdemeanor charges, as distinct from convictions, to impeach his credibility. He states that his right to testify in his own behalf accordingly was chilled when the court ruled that this evidence could be used if he decided to testify.

The issue posed, however interesting, is not one that this court must decide. The record does not support defendant’s assertion that the trial court actually ruled that it would allow the State to use this evidence for impeachment. On the contrary, the trial court expressly re served its ruling as to whether the State could use such evidence in rebuttal or during cross-examination if defendant testified in his own behalf.

Defendant did not testify however, which makes this issue academic. If defendant took the witness stand and asserted that Rosalind agreed to sexual intercourse, presumably the State would have sought to use the prior, sex-related incidences to impeach his credibility, since each alleged offense involved a young girl and an element of coercion rather than consent. If the court had then determined that the probative nature of the evidence outweighed its prejudicial impact, and allowed the jury to hear it, the issue would have become ripe for our review. Instead, the court merely reserved ruling until such time as the issue was squarely presented at trial. Since defendant did not testify and the evidence was not published to the jury, we decline to address the merits of the argument.

We are not insensitive to the notion that the trial-court’s ruling on this issue may have influenced trial strategy, however. Certainly, if the court had barred the evidence outright, defendant could have then put on a consent defense, without fearing that the jury would hear of the other sex offenses. Defendant already had won exclusion of this evidence from the State’s case in chief. The trial court was understandably reluctant to rule in .advance that such evidence never could be used for impeachment or rebuttal purposes. Therefore, the court declined to issue an advisory opinion regarding the admissibility of the evidence.

We believe that the trial court’s decision to reserve its ruling was entirely appropriate. Defendant’s decision to testify or not testify was not one for the court to decide. While the defense strategy may have been somewhat or even greatly influenced by the risk that the evidence would come in, the court was not required to remove that risk in advance. Accordingly, we conclude that defendant is not entitled to a new trial based on this issue.

For the foregoing reasons, we uphold the trial court’s rulings and affirm defendant’s conviction and sentence.

Affirmed.

JOHNSON and JIGANTI, JJ., concur.