author: PRESIDING JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRIAN HOARD, Defendant-Appellant.
    First District (6th Division)
    No. 1—91—2423
    Opinion filed June 25, 1993.

      Rita A. Fry, Public Defender, of Chicago (Julie M. Campbell, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Donald T. Lyman, and Joelle Marasco, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Following a jury trial, defendant, Brian Hoard, was convicted of the first degree murder of Jermaine Rhodes (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a)) and was sentenced to a term of 40 years. On appeal, defendant contends that: (1) the trial court erred by refusing to give the jury involuntary manslaughter or reckless conduct instructions; (2) the trial court committed reversible error by refusing to give the jury an accomplice instruction despite the fact that the State’s key witness was an unindicted co-conspirator; and (3) he was deprived of a fair trial due to several improper remarks made by the State.

The relevant facts are as follows. Captain Larry Heard, a security officer for the Chicago Housing Authority, testified for the State that at approximately midnight of May 16, 1989, he was patrolling a public housing complex when he noticed a crowd gathered. He and his partner drove once around the block, and when they returned, the group began to disperse. Heard noticed the deceased lying facedown on the ground. He had been shot several times. Heard immediately notified Chicago police, who arrived at the scene within minutes.

Officer William Wright of the Chicago police department arrived at approximately 12:30 a.m. Upon searching the scene, he and other officers found seven 9 millimeter cartridge cases lying five to seven feet from the deceased’s feet. In addition, they found three live .22-caliber bullets, two located immediately at the deceased’s feet. No fired bullets, were found underneath the deceased’s body. The deceased had suffered several wounds, including one to the left chest cavity and several on the left side of the neck and shoulder area. On May 28, 1989, Wright obtained warrants for the arrest of defendant and his brother, Sidney Hoard, for the deceased’s murder.

On cross-examination, defense counsel asked Wright to examine the manufacturer’s stamp on each of the 9 millimeter cases that were recovered. Six of the seven were from the same manufacturer; the remaining case came from a different manufacturer. Wright confirmed that a 9 millimeter cartridge is expended from a semiautomatic or automatic pistol as opposed to a revolver, and that a .22-caliber cartridge could be fired from a semiautomatic, automatic, or revolver pistol. He also confirmed that when a revolver is fired, the casing remains in the cylinder, whereas in an automatic or semiautomatic gun the casing is expended from the gun.

On the night of the shooting, Wright learned that another individual had been shot besides the deceased. That individual was identified as Tavares Williams, and he had been shot in his left upper thigh. Wright and his partner went to the hospital to question him. They had a conversation with Williams at the hospital, the substance of which Wright could not recall. After leaving the hospital, Wright went to the home of Bennie Jordan, but did not find him home. Wright and his partner confirmed that a gunshot residue test was administered on Williams to determine whether he had recently fired a weapon.

On redirect examination, Wright stated that Jordan was arrested and charged in connection with the deceased’s murder on May 18, 1989, several days before the warrant for defendant’s arrest was issued.

Dr. Tae An, a Cook County medical examiner, performed the autopsy on the deceased. The autopsy revealed the presence of 11 bullet wounds consisting of eight entry and three exit wounds, which were determined to be the cause of death. Ten wounds were located from the chest area upward; the eleventh wound was to the right thigh. Dr. An opined that one of the bullets entered the body, exited, and then reentered the body. With regard to the thigh wound, he stated that the bullet entered in an upward direction and deposited in the muscle near the right hip. Dr. An recovered five bullets and one small jacket fragment from the deceased’s body. The results of the toxicology report performed on the deceased revealed the presence of .31 micro-gram of a cocaine metabolite.

On cross-examination, Dr. An stated that he detected no evidence of tatooing or stippling which would have indicated that the bullets were fired at close range. Four of the bullets recovered were large and copper-jacketed. Further, the thigh wound appeared different from all of the other entry wounds. A long marginal abrasion was present, indicating that the bullet did not enter from a right angle but instead traveled in an upward direction. The bullet which caused this wound was lead, not copper-jacketed. It was also markedly flattened, possibly caused by the bullet striking the ground before it entered the body.

The State next called Tyrone Atkins, who testified that he had no recollection of any events that occurred the night of the deceased’s murder. He stated he was not present when the deceased was shot. In addition, he denied knowing defendant, defendant’s brother, Sidney, or Jordan. He did not recall speaking to police or an assistant State’s Attorney about the murder. Over defense objection, the trial court granted the State’s request to treat Atkins as a hostile witness and to question him about a written statement he gave police in May 1989 regarding the murder. Atkins acknowledged that his signature was on the statement, but stated that he was forced to make the statement after being hit several times by a police officer. Atkins stated that he never read the statement prior to signing it because he did not know how to read. The State did not discuss the substance of the statement.

The State then questioned Atkins about the testimony he gave at the trial of a codefendant also charged with the deceased’s murder. At that trial, Atkins stated that two (not one) police officers beat him into giving the written statement. Atkins never filed a report against the police who allegedly beat him.

On cross-examination, defense counsel brought out the substance of an oral statement Atkins gave police on May 17, 1989. This was permitted after Atkins denied that he had given the police any information about the shooting. Atkins allegedly told police shortly after the shooting that he heard shots at the time the deceased was murdered, and that he was selling drugs for Jordan prior to the shooting when the deceased, armed with a .357 magnum revolver, approached him and robbed him of $50. He told Sidney, nicknamed “Sinbad,” and Jordan about the robbery. Jordan obtained a .38-caliber handgun, and the three confronted the deceased. Atkins stayed behind Jordan and Sidney because he did not want to get caught in the cross-fire when Jordan shot the deceased. Jordan confronted the deceased about the robbery and slapped him across the face with the gun. Atkins then saw Jordan fire his weapon twice at the deceased. Atkins started to run and heard more shots fired. Atkins denied that he gave police this information.

Atkins was never charged with any offense in connection with the deceased’s murder. According to Atkins, the police did not tell him he could be charged with the deceased’s murder and at no time did they they force him to say that the Hoard brothers killed the deceased.

Atkins acknowledged a visit from a defense investigator while he was in Cook County jail, at which time Atkins was shown his written statement and then wrote on it, “This statement is not true. I did not read it before I signed it,” affixed with his signature and the date of January 24, 1991. He acknowledged telling the investigator that he did not know who shot and killed the deceased, that he was in the area and heard several shots, that he was not selling drugs for anyone, and that in fact the police did tell him to say that the Hoards killed the deceased.

Mary Lewsader, a Chicago youth officer, testified for the State that she was present along with Atkins’ mother at the time Atkins gave his written statement. She stated that Atkins was informed of his rights and voluntarily waived them. He then gave the police a written statement. After the assistant State’s Attorney finished writing out Atkins’ statement, he asked Atkins to read it and note where any corrections were to be made. Atkins began reading the statement, but the assistant State’s Attorney took over reading aloud because Atkins was a slow reader. Lewsader stated that Atkins appeared to be in good health the night he gave his statement. He never complained about being mistreated by the police.

Over defense objection, the State distributed copies of Atkins’ written statement and it was read aloud to the jury. Atkins stated that at about 12:30 a.m., he was selling cocaine when he was robbed of $50 and a bag of “cane” at gunpoint. He saw the man who robbed him walk towards the deceased. Atkins, who sold drugs for defendant, nicknamed “Crack,” told defendant about the robbery. Defendant and his brother Sidney confronted the deceased, while Atkins lagged behind. Sidney had a .38-caliber revolver, and defendant had a gun that looked like an Uzi. Sidney accused the deceased of having set up the robbery. Defendant opened the deceased’s shirt and asked Atkins if the gun the deceased was carrying was the same one that was used to rob him. Atkins responded affirmatively, but stated that the deceased was not the person who robbed him. Sinbad then hit the deceased with the gun and defendant shot at him. The deceased fell to the ground. According to Atkins, defendant shot the deceased three times. Jordan, defendant’s friend, told defendant not to leave the deceased in that condition. Jordan then shot the deceased twice with his own gun, and Atkins ran home. He watched the shooting from about 25 feet away, but could hear and see clearly.

Officer James Treacy was qualified as an expert in firearms identification. He confirmed that the seven 9 millimeter cartridges recovered by police had been fired from a gun at some point, and that the three .22-caliber bullets had never been fired. The nine-millimeter cartridges were fired from a semiautomatic or automatic weapon, but Treacy could not determine whether all seven were from the same gun. He also stated that an Uzi is a large semiautomatic pistol which predominantly fires a nine-millimeter bullet.

Treacy analyzed the bullets removed from the deceased’s body and concluded that the five nine-millimeter bullets and bullet fragments and single .38-caliber bullet recovered could not have been fired from the same gun. On cross-examination, he confirmed that the .38-caliber bullet was flattened and could have become so by hitting the ground or concrete before it entered the deceased’s body.

Assistant State’s Attorney Patrick Campanelli testified regarding the taking of Atkins’ written statement. He did not recommend that Atkins be charged with any drug-related offenses or with the deceased’s murder. In his opinion, Atkins appeared to be in physically good condition when he arrived to take Atkins’ statement. Atkins never complained of being mistreated by police.

Detective Ralph Vucko testified that on August 3, 1989, he and his partner drove to Zion, Illinois, where defendant was being held, to arrest him for the deceased’s murder. Defendant was brought back to Chicago and was taken to an interview room where he was advised of his rights. Defendant informed Vucko that he knew of the deceased’s murder but was not involved in it. He was in the area the night of the murder and heard gunshots, and when he arrived at the scene he saw the deceased lying on the ground. Vucko informed defendant that he had talked to several witnesses who implicated him in the shooting. The witnesses said defendant had an Uzi-type gun and shot the deceased several times.

Upon hearing this, defendant told Vucko that he was present at the time of the shooting, but was only holding a .25 automatic. He stated that he shot the deceased once in the leg. He was with Sidney and Jordan about a block away from the scene shortly before the shooting. Atkins walked up to defendant and told him that he had just been robbed and suspected that the deceased had been involved in the robbery. Jordan had a .38-caliber gun. The four walked about a block, where they found the deceased. Defendant approached the deceased and asked why he was taking money from people. The deceased told defendant to “get out of his face.” Defendant then pulled out his .25-caliber pistol and started waving it around. As he did so, the gun fired one time as it was pointed between the deceased’s legs but missed the deceased. Defendant then told the deceased, “See how easy it is.” He continued to wave the gun at the deceased, and it went off again, this time striking the deceased in the knee. The deceased started to hop around on one foot and eventually fell to the ground. Defendant started to walk away at that point. Jordan told defendant that they could not leave him in that condition, and defendant told Jordan he could do whatever he wanted. Defendant walked away and heard several more gunshots, but did not see who had fired the shots. Vucko told defendant that no .25-caliber bullets were found, but defendant insisted that he only had a .25-caliber pistol at the time of the shooting.

Defendant gave a written statement to Assistant State’s Attorney Barbara Riley which was consistent with the statement he gave to Vucko. He told Riley that the deceased denied involvement in the robbery and that he did not see the deceased with a gun.

At the close of the State’s case in chief, the trial court denied defendant’s motion for a directed verdict. The defense then called its investigator, Mort Smith. Smith testified regarding a conversation he had with Atkins at Cook County jail on January 24, 1991. Smith showed Atkins the written statement he gave the assistant State’s Attorney and a statement he orally gave police, and Atkins told Smith that neither of them was true. Atkins knew defendant, but did not see him shoot anyone. Atkins was in the area where the shooting occurred, but did not know who shot the deceased. The police yelled and beat him for several hours, telling him that they wanted to get the Hoards. According to Atkins, the police wrote out the statement and forced him to sign it. The police were going to charge him with the murder if he did not sign it. Smith prepared a statement in Atkins’ presence recounting what Atkins told him.

On cross-examination, Smith added that Atkins also denied selling drugs for anyone on the night of the shooting. Smith acknowledged that defendant and Atkins were both being held in the jail prior to and at the time Smith spoke to Atkins. Further, according to Smith, Atkins read aloud the statement Smith prepared and stated it was accurate. He also read aloud the written statement prepared by assistant State’s Attorney Campanelli. Over the State’s objection, Atkins’ statement to Smith was read to the jury for the limited purpose of impeaching Atkins’ in-court testimony.

Detective Robert Kleinschmidt testified for defendant that he had a conversation with Atkins on May 17, 1989, regarding the shooting. This conversation was contained in his police report. Atkins told Kleinschmidt that he was at the scene, heard the shots, and later learned that the deceased had been shot. He also told Kleinschmidt that he was selling drugs for Jordan when he was robbed by the deceased, who was armed with a .357 magnum revolver. Atkins told Sidney he had been robbed, and together they told Jordan about the robbery. Jordan obtained a .38-caliber handgun and told them he was “going to take care of” the deceased. The three returned together to the scene of the robbery, and Atkins “[hung] back about two car lengths” as Jordan and Sidney approached the deceased because he knew Jordan was going to shoot the deceased and “he didn’t want to get caught in the cross-fire.” Jordan confronted the deceased about the robbery and hit him m the face with the gun. Jordan then shot the deceased twice. Atkins ran and heard several more shots being fired. Atkins never mentioned defendant during this recounting of the incident.

On cross-examination, Kleinschmidt testified about a second oral statement Atkins gave him on May 18. Atkins told Kleinschmidt that he was selling drugs for defendant, not Jordan. Further, he stated that defendant had an Uzi, and Sinbad, rather than Jordan, had a .38-caliber handgun.

Defendant first contends that the trial court erred by refusing to instruct the jury as to the elements of involuntary manslaughter. He argues that there was sufficient evidence from which the jury could have concluded that he was guilty of the lesser offense of involuntary manslaughter instead of first degree murder.

The instructions at issue are Illinois Pattern Jury Instructions, Criminal, Nos. 7.07 and 7.08 (2d ed. 1981) (hereinafter IPI Criminal 2d). IPI Criminal 2d No. 7.07 states:

“A person commits the offense of involuntary manslaughter when he unintentionally causes the death of an individual by acts which are performed recklessly and are likely to cause death or great bodily harm to another.”

IPI Criminal 2d No. 7.08, states:

“To sustain the charge of involuntary manslaughter, the State must prove the following propositions:
First: That the defendant performed the acts which caused the death of Jermaine Rhodes; and
Second: That the defendant performed those acts recklessly; and
Third: That those acts were likely to cause death or great bodily harm.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.”

In support of his contention that the involuntary manslaughter instructions should have been given, defendant points to his oral and written statements in which he stated that he only intended to scare the deceased when he waved his gun around, and that the gun discharged twice by accident, hitting the deceased once in the leg. This conduct, defendant argues, amounts to recklessness, not intent to kill or do great bodily harm.

The law is well settled that a defendant is entitled to an involuntary manslaughter instruction if there is slight evidence upon which that theory could be based. (People v. Trotter (1988), 178 Ill. App. 3d 292, 298, 533 N.E.2d 89, 92.) However, such an instruction should not be given if there is no evidence which would reduce the murder charge to manslaughter. (Trotter, 178 Ill. App. 3d at 298, 533 N.E.2d at 92.) In this case, we conclude that the involuntary manslaughter instructions were not warranted.

In order for defendant to have been found guilty of involuntary manslaughter, it must have been shown that he performed reckless acts which caused the death of the deceased. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 3(a); IPI Criminal 2d No. 7.08.) Even if this court were to believe defendant’s version of the events and concede that his act of waving the gun in front of the deceased to scare him amounted to reckless conduct, we conclude, as did the trial court, that the resulting discharge of the gun into the deceased’s leg was not the act which caused the deceased’s death. Rather, the numerous gunshot wounds to the deceased’s head and' chest area were what caused his death. The sheer number and location of those wounds leads us to only one reasonable conclusion: that the act which caused the deceased’s death, whether committed by defendant or one for whose conduct he is legally responsible, was not reckless, but intentional. An instruction for involuntary manslaughter is not warranted where the nature of the killing, shown by multiple- wounds, reveals the inapplicability of the theory. Trotter, 178 Ill. App. 3d at 298, 533 N.E.2d at 92; People v. Jones (1987), 157 Ill. App. 3d 106, 112, 510 N.E.2d 116, 121.

Thus, the jury was properly left with the options of acquitting defendant or finding him guilty of first degree murder as a principal or under an accountability theory. There was ample evidence to support a conviction under either theory.

Defendant could have been convicted of murder by accountability under section 5 — 2(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 5 — 2(c)), which states:

“A person is legally accountable for the conduct of another when:
* * *
(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.”

Our supreme court has construed section 5 — 2(c) as incorporating the “common-design rule.” (See People v. Kessler (1974), 57 Ill. 2d 493, 315 N.E.2d 29.) That rule provides, “where two or more persons engage in a common criminal design or agreement, any acts in the furtherance thereof committed by one party are considered to be the acts of all parties to the common design and all are equally responsible for the consequences of such further acts.” (Kessler, 57 Ill. 2d at 496-97, 315 N.E.2d at 32.) Thus, under this rule, an accomplice can be held accountable for murder even without a showing of an intent to kill.

Here,- defendant’s own oral and written statements reveal that he was engaged in a common criminal design with Sidney and Jordan when together they planned and attempted to retrieve from the deceased the money he allegedly took from Atkins. According to defendant, he and Jordan were both armed, and they, together with Sidney, sought out the deceased. When they found him, defendant asked why he was “stealing money from a 16-year-old.” Defendant then started waving his pistol around and said, “See how easy it is.” Immediately thereafter, the deceased was shot several times. Even though under defendant’s scenario he did not fire the fatal shots or even intend to kill the deceased, under the common-design rule, his participation in the felonious scheme to rob the deceased makes him responsible for any consequences flowing therefrom, including the murder of the deceased. People v. Terry (1984), 99 Ill. 2d 508, 515, 460 N.E.2d 746, 749.

Defendant could also have been convicted of the deceased’s murder as a principal. Atkins’ written statement, which was admitted as substantive evidence pursuant to section 115 — 10.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 115—10.1), implicated defendant as a primary shooter. Atkins stated that he was selling drugs for defendant on the morning in question when he was robbed at gunpoint by a man who approached the deceased immediately afterward. Atkins told defendant about the robbery, and they, along with defendant’s brother, Sidney, confronted the deceased. According to Atkins, Sidney had a .38-caliber revolver and defendant had a gun that looked like an Uzi. Defendant subsequently shot the deceased three times, and his friend Jordan shot the deceased twice with his own gun.

Further, Detective Kleinschmidt, a defense witness, acknowledged on cross-examination that Atkins told him that on the morning in question he was selling drugs for defendant, not Jordan, as he had previously stated, and that defendant had an Uzi. Officer Treacy testified that the seven 9 millimeter cartridges which were recovered near the deceased’s body had been fired from a semiautomatic or automatic weapon, and he confirmed that an Uzi is a large semiautomatic pistol which predominantly fires a nine-millimeter bullet. Five nine-millimeter bullets and bullet fragments were removed from the deceased’s body.

In our view, the foregoing evidence would support a finding by the jury that defendant was a principal in the deceased’s murder.

Defendant also contends that the trial court committed reversible error by refusing to give the “accomplice witness” instruction:

“When a witness says he was involved in the commission of a crime with the defendant, the testimony of that witness is subject to suspicion and should be considered by you .with caution.
It should be carefully examined in light of the other evidence in the case.” IPI Criminal 2d No. 3.17.

The accomplice witness instruction should be given “[i]f there is probable cause to believe [the witness] was guilty as a principal or as an accessory on the theory of accountability.” (People v. Henderson (1990), 142 Ill. 2d 258, 314, 568 N.E.2d 1234, 1261.) “[T]he fact that the witness denies complicity in the crime does not eliminate the need to give the instruction if the totality of the circumstances shown by the record are sufficient to establish probable cause that the witness was accountable.” (People v. Carreon (1987), 162 Ill. App. 3d 990, 993, 516 N.E.2d 372, 374.) Otherwise, “ ‘the purpose behind the accomplice testimony instruction would be emasculated if the instruction could be avoided by a witness’ mere assertion of a noncriminal intent.’ ” Carreon, 162 Ill. App. 3d at 993-94, 516 N.E.2d at 374, quoting People v. Buffington (1977), 51 Ill. App. 3d 899, 903, 366 N.E.2d 1099, 1102.

Defendant argues that Atkins’ written statement, which, as stated, is substantively admissible under section 115 — 10.1 (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10.1), established probable cause to believe that Atkins was guilty of the deceased’s murder under an accountability theory. Atkins stated that he was selling drugs for defendant when he was robbed at gunpoint by a man who then approached the deceased. Atkins told defendant about the robbery. Defendant and Sidney confronted the deceased, while Atkins lagged behind. Sidney and defendant were both armed; Atkins was not. Sidney told the deceased, “You set that up, you set that up.” Defendant then opened the deceased’s shirt and asked Atkins if the gun the deceased possessed was the same one that was used to rob him, to which Atkins said yes. Atkins told defendant, however, that the deceased was not the person who robbed him. Sidney then hit the deceased with the gun and defendant shot at him. Jordan shot the deceased twice.

We do not believe that the facts presented above would support a finding of probable cause to indict Atkins for the deceased’s murder under an accountability theory. Although Atkins was present when the deceased was shot and did nothing to prevent his being shot, the law is clear that “mere presence or acquiescence is not sufficient to render a [person] accountable” for the acts of another. (People v. Howard (1991), 209 Ill. App. 3d 159, 184, 568 N.E.2d 56, 72.) “[T]o establish probable cause that someone was an accomplice there must be at least some evidence of other circumstances, other conduct, from which it can be inferred that the person approved of the offense and aided it by his mere presence.” (Henderson, 142 Ill. 2d at 316, 568 N.E.2d at 1262.) Here, there was no such evidence. Although Atkins informed defendant, the man for whom he sold drugs, that he had been robbed and accompanied him in defendant’s efforts to retrieve the money which had been taken, we find it significant that Atkins was unarmed and in fact told defendant prior to the shooting that the deceased was not the one who robbed him.

Even if Atkins could have been indicted for the offense, however, we do not believe that failure to give the instruction deprived the jury of essential guidance in its evaluation of the evidence. (See People v. Dowd (1981), 101 Ill. App. 3d 830, 428 N.E.2d 894.) The jury had the opportunity to hear defense counsel comment at length during closing argument about Atkins’ incredibility as witnessed by his conflicting statements and uncooperativeness on the witness stand. The jury was also instructed generally as to its duty to evaluate the credibility of witnesses. If any error resulted from the failure to give the accomplice witness instruction, it was harmless. See Howard, 209 Ill. App. 3d 159, 568 N.E.2d 56.

Finally, defendant contends that he was deprived of a fair trial as a result of several improper remarks made by the State at trial.

Defendant first alleges that the State misrepresented the evidence when it stated in opening remarks and again in closing argument that defendant initially denied knowing anything about the murder. Although defense counsel timely objected to the prosecutor’s remarks in opening statement, she failed to object during closing argument and did not raise this issue in the post-trial motion. Therefore, the issue is waived. People v. Gacho (1988), 122 Ill. 2d 221, 239, 522 N.E.2d 1146, 1154 (“The failure to raise an issue in a written motion for new trial generally constitutes waiver of that issue and it cannot be urged as a grounds for reversal on review”); People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.

Moreover, contrary to defendant’s contention, we do not find this case to be one in which the plain error doctrine should be invoked. That doctrine is applied only in limited cases where the evidence is closely balanced or where the error was of such magnitude that the accused was denied a fair trial. (People v. Herrett (1990), 137 Ill. 2d 195, 561 N.E.2d 1.) We do not consider the evidence in this case to be closely balanced. Nor do we believe that the prosecutor’s remarks affected the jury’s verdict. In his statements, defendant admitted that he, Sidney and Jordan together sought out the deceased to retrieve Atkins’ money. He also admitted firing two shots at the deceased, if only to scare him. As we have previously stated, this evidence was more than sufficient to find defendant guilty of murder under a theory of accountability, and ample other evidence exists to support a finding of guilt as a principal. We decline to find plain error.

Defendant also argues that the trial court improperly sustained the State’s objection to defense counsel’s remarks in closing argument that the police were “looking for” and “wanted the Hoards.” However, this issue was not specifically raised in the motion for a new trial. Issues not raised with specificity in the motion for a new trial are waived, in the absence of plain error. (Enoch, 122 Ill. 2d at 187, 522 N.E.2d at 1130.) As we have previously stated, we find no evidence of plain error.

Defendant next asserts that the State improperly shifted the burden of proof by commenting in rebuttal closing argument on defendant’s failure to call Detective Kato. When the comments are placed in context, however, it becomes apparent that any error was invited.

During her closing argument, defense counsel stated:

“Detective Vuco [sic] is hiding something. And the State is hiding someone, Detective Kato. Yuco [sic] was the brains and Kato was the brawn. *** I would ask you to consider the possibility that they did not call Detective Kato for the same reasons they didn’t call the detectives who interrogated Tyrone Atkins. They want you to focus your attention simply on two things, the piece of paper and nothing else. That’s not fair.”

It was only after defense counsel raised the issue of Kato’s failure to testify that the prosecutor made the following comments during rebuttal closing argument which defendant now cites as error on appeal:

If they wanted you to hear what Detective Kato or any other detective said, they could have brought him down as we did. They did bring down Detective Kleinschmidt of the Area 4 Police Department to testify for them.”

From the foregoing, it is apparent that defense counsel was arguing that Kato did not testify because he in fact beat Atkins’ statement out of him. Pursuing this line of argument, defense counsel demanded that the State explain Kato’s failure to testify. In response to this challenge, the State merely reminded the jurors of the power of compulsory process. Because the comments were invited, they cannot be relied upon as error on appeal. (People v. Mahaffey (1989), 128 Ill. 2d 388, 425, 539 N.E.2d 1172, 1190; People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) Moreover, if erroneous, the comments amounted only to harmless error.

Finally, defendant asserts that he was prejudiced by the following remark made by the prosecutor during closing argument:

“The defense attorney gets up here and says, after that statement on May 17, the police were looking for Brian Hoard. That’s incorrect. If it’s not a lie, it’s at least incorrect.”

The trial judge sustained defendant’s objection and instructed the jury to disregard the statement. Although the comment was inappropriate, any error was cured by the trial court admonishing the jury to disregard it.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

EGAN and GIANNIS, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
      In re ARDEDIA L., a Minor (Ardedia L., a Minor, Petitioner-Appellee, v. The Department of Children and Family Services, Respondent-Appellant).
    First District (6th Division)
    No. 1—92—4327
    Opinion filed June 25, 1993.
    Rehearing denied August 25, 1993.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General; and Susan Frederick Rhodes, Assistant Attorney General, of Chicago, of counsel), for appellant.

      Patrick T. Murphy, Public Guardian, of Chicago (Kass A. Plain and Kathleen G. Kennedy, of counsel), for appellee.
   PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

This is an interlocutory appeal from an order of the juvenile court of Cook County requiring the appellant, the Illinois Department of Children and Family Services (DCFS), to provide the petitioner, Ardedia L., a ward of DCFS, with day care services for her baby, for a period of six months beyond her twenty-first birthday. DCFS contends that the order, issued November 4, 1992, is invalid under the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1991, ch. 37, pars. 801 — 1 et seq.) because it requires DCFS to provide services to Ardedia beyond the point at which her wardship and the jurisdiction of the juvenile court terminate.

The relevant facts are as follows. Ardedia was born on December 15, 1971. On September 14, 1973, she was placed in the temporary custody and guardianship of DCFS. On April 18, 1975, the guardianship was made permanent until Ardedia reached the age of 21. On July 22, 1980, the court appointed the Cook County public guardian as Ardedia’s guardian ad litem. The parental rights of Ardedia’s natural parents were terminated in February 1981.

In May 1991, the juvenile court noted that DCFS’s goal for Ardedia, who was then 19 years old, was independent living. Beginning in January 1992, Ardedia resided in her own apartment as a participant in an independent living program supervised by a private organization known as Sullivan House. At the same time, Ardedia was attending Kennedy-King College. In February 1992, Ardedia gave birth to a baby girl. The baby is not a ward of the State.

Since Ardedia’s transition into the independent living program, she has been receiving individual and group counseling on a weekly basis. One of the service plans developed for Ardedia by DCFS was to secure day care for her baby so that she could remain in school or obtain employment. Since the birth of her baby, Ardedia has been unable to return to school and has had to turn down job offers because of the lack of day care services.

Although both Ardedia and DCFS had made continued attempts since February 1992 to secure day care services, they met with no success. On July 1, 1992, the juvenile court heard a progress report relating to the issue of day care services for Ardedia. Gloria Robinson, program director for Sullivan House, detailed the efforts that had been made to secure day care services. She explained that day care providers contacted originally were contacted again several months later, but there still remained no openings. Ardedia named some of her friends who were available to care for her baby, but they were ineligible because they were minors.

Numerous reasons existed for the inability to find appropriate day care for Ardedia’s baby. Several providers who were contacted had no vacancies. Ardedia was placed on three waiting lists, but she was informed that it would be many months, if not years, before those providers would have a vacancy. Other day care providers would not deal with Ardedia because she was not employed. Still others refused to work with DCFS because of its method of payment by voucher, preferring instead to receive cash payments.

At the July 1, 1992, progress hearing, the public guardian stated that Ardedia needed day care in order to attend college or to secure a job. Consequently, she requested the juvenile court to issue an order compelling DCFS to provide Ardedia with appropriate day care. Although a caseworker from Sullivan House was present at the hearing, no attorney representing DCFS was present.

The caseworker from Sullivan House testified concerning the difficulty in obtaining day care services for Ardedia’s baby. She testified that even though DCFS had .no financial responsibility for the baby, since the baby was not a ward of the State, DCFS was nevertheless assisting Ardedia in finding day care services. The juvenile court issued an order without prejudice, because of the absence of DCFS’s attorney, directing DCFS to secure day care services for Ardedia’s baby in order that Ardedia could achieve independent living.

A progress hearing was held on September 8, 1992. The juvenile court was provided with a list of the day care providers DCFS had contacted. The court then sought and obtained assurances from the DCFS caseworker that DCFS would continue to search for appropriate day care.

A second progress hearing was conducted on November 4, 1992. The caseworker testified that the same problems of no vacancies, nonacceptance of DCFS vouchers, and inability to locate licensed providers remained. She stated that in addition to DCFS, both Ardedia and Sullivan House personnel had made attempts to locate suitable day care services. She informed the court that DCFS had been trying to locate such services since February 1992, when the baby was born, not just since the court order was entered in July. She confirmed that Ardedia had to turn down job offers and was unable to attend school because she had no one to watch her baby. She also stated that Ardedia would be turning 21 the following month.

The public guardian then requested the court to enter an order requiring DCFS to keep Ardedia’s case open for six months after she turned 21 so that DCFS could secure appropriate day care. The public guardian informed the court that there was no objection by the other side. However, no attorney representing DCFS was present.

The juvenile court entered an order requiring DCFS to keep Ardedia’s case open for six months after her twenty-first birthday to enable her to obtain day care or a babysitter. The order further provided that if no other day care could be found, DCFS was to consider Ardedia’s teenage friends as potential babysitters, although the court noted that this was not the best alternative. The juvenile court directed Ardedia to provide DCFS with the names of her friends so that it could conduct a background_check. It is from this order that DCFS now appeals.

Before we address the arguments raised by DCFS, it is appropriate to respond to the public guardian’s argument on behalf of Ardedia that DCFS has waived review of the November 4 order because it failed to appeal an identical order issued by the juvenile court on July 1. The public guardian contends that the November 4 order merely provides for enforcement of the July 1 order, which DCFS did not appeal.

The November 4 order states:

“1. DCFS shall keep Ardedia’s case open for six months after her 21st birthday so that day care can be arranged for Ardedia’s 8 month old child.
2. DCFS shall consider Ardedia’s teenage friends as babysitter and provide payment to them if no other day care can be located.”

The July 1 order, on the other hand, only directed DCFS to “provide Ardedia with appropriate day care services to enable Ardedia to achieve independent living.”

Were we to accept the public guardian’s interpretation of the orders — that they merely require DCFS to provide day care services to Ardedia — we would agree that DCFS waived its right to appeal the November 4 order because it failed to timely appeal the July 1 order. However, it is apparent that the two orders, while involving the same subject matter of day care, compel DCFS to perform separate and distinct acts. The July 1 order required DCFS to provide Ardedia, then a ward of the State, with day care services for her baby. The November 4 order, however, required DCFS to keep Ardedia’s case open for six months after her twenty-first birthday so that DCFS could arrange day care for her baby. DCFS did not appeal the July 1 order because it had been attempting for several months on its own to find day care services for Ardedia, and no issue regarding the juvenile court’s jurisdiction over Ardedia was created by the order since Ardedia was still a minor. This appeal challenges the provisions of the November 4 order requiring DCFS to keep Ardedia’s case open beyond her twenty-first birthday and to provide services to Ardedia’s baby after Ardedia turned twenty-one years.

Accordingly, we hold that DCFS has not waived review of the November 4 order, and this court has jurisdiction to entertain its appeal.

DCFS contends that the juvenile court lacked authority to retain jurisdiction over the subject matter of this case once Ardedia turned 21. DCFS is responsible for providing direct child welfare services to abused, dependent and neglected children under the age of 21 years to protect and promote their welfare. (Ill. Rev. Stat. 1989, ch. 23, par. 5005.) The Juvenile Court Act confers authority upon the juvenile court to guard these children for as long as their best interests and those of the public dictate or until they reach the age of 21. (Ill. Rev. Stat. 1991, ch. 37, par. 802 — 31.) At age 21, all proceedings under the Act with respect to any minor — including the wardship, custodianship, or guardianship of the minor — automatically terminate. Ill. Rev. Stat. 1991, ch. 37, par. 802-31.

Our constitution limits the jurisdiction of the circuit courts, of which the juvenile court is one, to “justiciable matters” (Ill. Const. 1970, art. VI, §9), and absent a justiciable controversy, courts lack subject matter jurisdiction. (People v. Capitol News, Inc. (1990), 137 Ill. 2d 162, 560 N.E.2d 303.) Subject matter jurisdiction is the power of the court to hear and determine causes of the general class to which the particular cause belongs (In re Marriage of Hostetler (1984), 124 Ill. App. 3d 31, 463 N.E.2d 955), and to grant the particular relief requested. (People ex rel. Department of Human Rights v. Arlington Park Race Track Corp. (1984), 122 Ill. App. 3d 517, 461 N.E.2d 505.) Although circuit courts have original jurisdiction over all justiciable matters, it is well settled that when a court’s power to act is controlled by statute, the court is governed by the rules of limited jurisdiction. (DeKing v. Urban Investment & Development Co. (1987), 155 Ill. App. 3d 594, 508 N.E.2d 377; Arlington Park Race Track, 122 Ill. App. 3d 517, 461 N.E.2d 505.) While the legislature generally has no power to limit or preclude a court’s constitutional jurisdiction to hear a matter, an exception exists when the legislature creates a right having no counterpart in common law or equity, since the legislature has defined the justiciable matter by enacting the statute. (DeKing, 155 Ill. App. 3d 594, 508 N.E.2d 377.) The Juvenile Court Act falls within this exception to the circuit court’s general jurisdiction, and consequently the juvenile court’s jurisdiction is limited by the language of the Act to consider only what the Act defines as a justiciable matter.

Under the Act, justiciable matters are confined to those involving minors, whom the Act defines as persons under the age of 21 years. (Ill. Rev. Stat. 1991, ch. 37, par. 801 — 10.) Once a minor turns 21, she is considered an adult (Ill. Rev. Stat. 1991, ch. 37, par. 801— 3), and the juvenile court is no longer empowered to hear and determine the cause or to grant the relief requested. (In re Thompson (1980), 79 Ill. 2d 262, 402 N.E.2d 609; In re D.M. (1985), 131 Ill. App. 3d 962, 476 N.E.2d 771. See also Miller v. General Telephone Co. (1975), 29 Ill. App. 3d 848, 855-56, 330 N.E.2d 573, 580 (“[I]n those situations where the court’s jurisdiction is actually confined by statute, either procedurally or substantively, the court can have jurisdiction over the subject matter, yet lose that jurisdiction by acting outside the intended scope or not in accordance with the procedure of the statute”).) The juvenile court is not free to reject or expand its statutory authority despite the desirability or need for such action. In re Peak (1978), 59 Ill. App. 3d 548, 375 N.E.2d 862.

The November 4 order required DCFS to keep Ardedia’s case open for six months after her twenty-first birthday so that day care services could be arranged for her baby. Ardedia turned 21 approximately six weeks later. On that day, Ardedia was no longer a minor, her wardship with DCFS automatically terminated, and the juvenile court was rendered powerless to order DCFS to provide any further services to her.

The public guardian characterizes the November 4 order as one merely aimed at enforcing the previously entered July 1 order, and he argues that the juvenile court may properly retain jurisdiction to enforce its prior orders. We reject this argument for the simple reason that, as we have already discussed, the two orders directed DCFS to perform separate and distinct acts. The earlier order required DCFS to provide Ardedia with appropriate day care services during a period in which she was still a minor and still a ward of DCFS, thus entitling her to such services; the subsequent order required DCFS to keep her case open for six months after she turned 21 so that DCFS could provide her with day care services, in contravention of the Act.

The juvenile cotirt did not find that DCFS acted in bad faith or was negligent in not locating day care services for Ardedia’s baby while she was still a ward of the State, even though it searched for such services from the time of the baby’s birth in February 1992. Various witnesses from DCFS and Sullivan House testified regarding the difficulty in securing day care services given Ardedia’s current situation. There seems to be no question that DCFS did its best to assist Ardedia in providing the needed service.

Thus, we cannot agree with the public guardian that the November 4 order was issued merely to enforce the earlier order. On the contrary, at oral argument, counsel for Ardedia stated that the juvenile court “gave [Ardedia] back six of the months that DCFS did not provide [day care].” The argument that she is now entitled to compensatory services as an adult is without any basis in the law. The public guardian has cited no case which supports his argument that day care services for her baby are mandated by the Act to be provided by DCFS after she turns 21. As DCFS points out, other governmental agencies in this State have programs in place to provide the services that DCFS has been ordered to provide for Ardedia. We hold that the juvenile court did not have the authority to order DCFS to provide services to Ardedia once she turned 21.

In light of that holding, we need not address DCFS’s additional contention that the juvenile court is barred by the doctrine of sovereign immunity from compelling DCFS, a State agency, to provide services to Ardedia. Nor need we address DCFS’s remaining argument that the juvenile court lacked jurisdiction to order it to provide day care services because the recipient of the services was not Ardedia but rather was her baby, who was not a ward of DCFS.

For the foregoing reasons, the order of the juvenile court of Cook County directing DCFS to provide services to Ardedia after she reached 21 is reversed.

Judgment reversed.

EGAN and GIANNIS, JJ., concur.


author: JUSTICE O’CONNOR

text:
    CONSTANTINE P. PAPPAS, SR., Adm’r of the Estate of Constantine Pappas, Jr., Deceased, Plaintiff-Appellant, v. STANLEY FRONCZAK et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—91—2576
    Opinion filed June 28, 1993.

      Kane, Obbish, Propes & Garippo (Susan G. Feibus and Loma E. Propes, of counsel) and Patricia C. Bobb & Associates, both of Chicago, for appellant.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, Norman J. Barry, Jr., Michael A. Pollard, and Karen Kies DeGrand, of counsel), for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff, Constantine P. Pappas, Sr., administrator of the estate of Constantine Pappas, Jr., deceased, appeals from a judgment entered following a jury verdict in a medical malpractice case brought against defendants Stanley Fronczak and Luis Yarzagaray. Plaintiff’s position at trial was that the defendants deviated from the applicable standard of care by failing to take the necessary measures to diagnose, prior to its rupture, the presence of a posterior fossa mass or aneurysm within the back of the deceased’s lower brain.

On appeal, plaintiff alleges the following grounds for reversal: (1) the jury’s verdict is against the manifest weight of the evidence; (2) the trial court erred in allowing one of plaintiff’s treating physician to give defense-oriented expert opinion testimony at trial where he was undisclosed as a Rule 220 (134 Ill. 2d R. 220) expert and where such testimony violated a pretrial agreement between the parties; (3) the trial court erred in limiting plaintiff’s attempt to expose financial bias during his cross-examination of a defense expert; and (4) the trial court erred by making a ruling which effectively prevented plaintiff from using a demonstrative exhibit at trial. For the reasons which follow, we affirm.

On August 23, 1974, plaintiff’s decedent (Gussie) was born. Gussie had a normal and healthy childhood. In July 1978, Gussie and his mother (Lucy) were in an automobile accident. Shortly after the accident, Gussie began to complain of headaches. From 1978 to 1982, there was no set pattern to Gussie’s complaints. Gussie’s pediatrician, Dr. Miro Petani, knew of the headaches but did not consider them to be serious.

On November 25, 1982, Gussie awoke with a headache unlike anything he had previously experienced. His head was cocked to the left side and he could not move his neck. He complained of terrible pain in his head. The pain continued throughout the day and into the night. In the early morning hours of Friday, November 26, 1982, Gussie’s father (Gus) took Gussie to the emergency room of Northwest Community Hospital.

At Northwest Community Hospital, X rays were taken of Gussie’s neck. Gussie was recommended to see a neurosurgeon right away. At 11 a.m. Friday, Gus took Gussie to see Dr. Pecson at Alexian Brothers Hospital. Dr. Pecson told Gus to monitor Gussie at home. If his condition did not improve, he should be taken to his pediatrician.

Gussie’s condition did not improve, so" Lucy took Gussie to see Dr. Petani. Dr. Petani arranged for Gussie to be seen by defendant Dr. Fronczak, a neurosurgeon at Oak Park Hospital. Dr. Fronczak was employed by defendant Dr. Yarzagaray. Dr. Yarzagaray was on vacation until the following Monday, November 29,1982.

On Saturday morning, November 27, 1982, Lucy and Gus met Dr. Fronczak at the Oak Park Hospital emergency room. Gussie’s condition was the same: he was complaining of a bad headache and a stiff neck; he had a fever; and he could not sleep.

Dr. Fronczak examined Gussie and the X rays from Northwest Community Hospital. Dr. Fronczak learned about the 1978 automobile accident and Gussie’s sporadic headaches. He admitted Gussie into Oak Park Hospital that day, where Gussie would remain for the next 10 days.

Dr. Fronczak suspected that Gussie might have a neurological problem. In particular, he suspected meningitis or a tumor or mass near the posterior fossa, which is the area at the back and lower part of the brain. To rule out meningitis, Gussie received a spinal tap. The results were normal. To rule out a posterior fossa mass, Dr. Fronczak performed a CT scan on Gussie’s skull. It too produced normal results.

From Saturday through Sunday, Gussie’s condition did not improve according to his father. He continued to have a stiff neck and periodic pain attacks.

Dr. Fronczak called in Dr. Thomas Sullivan, a pediatric neurologist to examine Gussie. Dr. Sullivan examined Gussie on Sunday, November 28, 1982. Dr. Sullivan spoke with Gussie’s parents, reviewed his history and the results of the CT scan and spinal tap, and conducted a neurologic examination. Dr. Sullivan believed that Gussie’s problem was caused by a viral infection or a lesion in the spinal cord.

Dr. Sullivan recommended a CT scan of Gussie’s cervical spine, which revealed no abnormalities, medication to relieve Gussie’s pain and neck stiffness, and that a myelogram be considered the following work week if Gussie did not improve. A myelogram is an invasive procedure which involves injecting a dye into the patient’s spinal fluid. The dye is traced through the structures of the spinal column. Myelograms pose risks to the person injected, such as infections, allergic reactions, nerve damage and seizures. Dr. Sullivan never saw Gussie again following his examination.

On Monday morning, defendant Dr. Yarzagaray examined Gussie and reviewed the results of the previous tests. Dr. Yarzagaray did not have an answer to what was causing Gussie’s problem. The existence of a posterior fossa mass was still a possibility because of Gussie’s continued irritability and neck pain. He did not order a myelogram or an arteriogram because there was no clinical indication for these tests. Gussie’s pain was affecting his behavior, including causing him to exaggerate its existence.

From Monday, November 29 until the following Monday, Gussie remained at Oak Park Hospital. Gussie’s condition during this time was the subject of much testimony at trial. The conflict centered on whether his headaches, neck pain and irritability improved or whether he generally exhibited the same symptomology, subject only to daily fluctuations. During this time, Gussie did not receive a myelogram, arteriogram or a second CT scan to confirm the negative results of the first CT scan. Oak Park Hospital did not have the capability to conduct a myelogram or arteriogram on Gussie.

On Monday afternoon, December 6, 1982, Gussie was transferred to Children’s Memorial Hospital for further observation and tests. At about 3 a.m. on Tuesday, December 7, 1982, an undiagnosed aneurysm in Gussie’s brain ruptured causing him to become comatose. Gussie died on January 4,1983.

At trial, the parties contested whether the first CT scan taken at Oak Park Hospital of Gussie’s skull in fact revealed that part of Gussie’s brain which contained the aneurysm which eventually killed him. Plaintiff contended that it did not, while defendants argued the CT scan revealed that part, but failed to disclose any problem.

The parties also contested whether Gussie should have been transferred to another hospital earlier so that other diagnostic tests could be performed which could have more conclusively ruled out the presence of the posterior fossa mass or aneurysm which killed Gussie. Gussie’s condition during his stay at Oak Park Hospital implicated whether an earlier transfer or the performance of more invasive tests was necessary.

Plaintiff first argues that the jury’s verdict was against the manifest weight of the evidence, We disagree.

A jury’s verdict on contested factual issues will not be disturbed on review unless it is against the manifest weight of the evidence. (Tedrowe v. Burlington Northern, Inc. (1987), 158 Ill. App. 3d 438, 444, 511 N.E.2d 798, appeal denied (1987), 117 Ill. 2d 554, 517 N.E.2d 1096.) Where there is evidence in favor of the defendant which, if believed, supports the verdict in favor of defendant, the reviewing court should not set aside a jury determination. (Tedrowe, 158 Ill. App. 3d at 444.) “[T]he test is not whether the evidence could have supported a verdict for the movant if contrary inferences were drawn but whether a contrary verdict is clearly evident.” (Emphasis in original.) (Tedrowe, 158 Ill. App. 3d at 444.) In considering this issue, we must view the evidence in the light most favorable to the appellee. Ford v. City of Chicago (1985), 132 Ill. App. 3d 408, 412, 476 N.E.2d 1232.

Plaintiff has failed to meet his burden on review. Plaintiff’s brief on this issue reads like a closing argument. However, what-verdict this court would have reached had we been the trier of fact is not the issue. Rather, the issue is whether a contrary verdict is clearly evident. After applying this test to the evidence presented below, we cannot say that a contrary verdict is clearly evident.

Plaintiff’s second argument on appeal is that the circuit court erred in allowing Dr. Thomas Sullivan, the pediatric neurologist who examined Gussie on the first Sunday of his hospitalization at Oak Park Hospital, to opine that Gussie’s condition “improved” between the time of this examination and .Gussie’s release from Oak Park Hospital. Plaintiff asserts that because Dr. Sullivan’s testimony was not based upon his personal observations of Gussie (he did not observe Gussie any time after this visit), but rather upon the notations of others within Gussie’s medical records, Dr. Sullivan should have been disclosed under Supreme Court Rule 220. Plaintiff further asserts that Dr. Sullivan’s testimony violated an agreement between the parties not to question treating physicians about the standard of care.

Addressing the latter of plaintiff’s arguments first, we find that Dr. Sullivan’s testimony did not violate the parties’ agreement. Plaintiff asserts on appeal that “the parties had an agreement that treating physicians would not be questioned at trial about standard of care issues.” Dr. Sullivan, however, did not give standard of care testimony. Rather, his testimony concerned whether Gussie “improved.” While this testimony bore on the standard of care issue, his testimony cannot be stretched into becoming what it is not.

Turning to plaintiff’s Rule 220 argument, this case presents the issue of when does a treating physician become subject to the disclosure requirements of Rule 220. Plaintiff posits the rule that a treating physician must be disclosed under Rule 220 when his medical testimony at trial is no longer based upon the personal knowledge which he gained during the course of treating the patient.

Boatmen’s National Bank v. Martin (1993), 155 Ill. 2d 305, a recent Illinois Supreme Court case, requires that we reject plaintiff’s argument. Boatmen’s reiterated the court’s prior position “that treating physicians are not subject to Rule 220(b)(1) disclosure.” (Boatmen’s, 155 Ill. 2d at 321.) However, Boatmen’s also recognized that the “treating physician exception” is not unlimited: “That is not to say that, in all instances, treating physicians are never subject to Rule 220(b)(1) disclosure. (See Kniceley v. Migala (1992), 237 Ill. App. 3d 72, 77-78 (drawing distinction between ‘examining’ physicians and treating physicians).)” (Boatmen’s, 155 Ill. 2d at 324.) Boatmen’s articulated the following test to determine at what point a treating physician must be disclosed under Rule 220: “The test is in the nature of the physician’s relationship and whether a related opinion could be expected to be formed through that involvement.” (Boatmen’s, 155 Ill. 2d at 324-25.) It is worth noting that this test is similar to the one which the supreme court had advocated in an earlier decision:

“We agree with our appellate court that the question of whether a witness must be disclosed as an expert under Rule 220 depends on the expert’s relationship to the case. If the expert is intimately involved in the underlying facts giving rise to the litigation and he would reasonably be expected to form an opinion through that involvement, then disclosure is not required. In such case, the opposing party is unlikely to be surprised by the testimony. On the other hand, where the expert’s contact with the case is slight, or where the opinion rendered is unrelated to the expert’s involvement in the case, then disclosure is required.” Wakeford v. Rodehouse Restaurants of Missouri, Inc. (1992), 154 Ill. 2d 543, 549.

In this case, Dr. Sullivan is more like an “examining” physician than a treating physician. He saw Gussie once and had no contact with Gussie thereafter. Thus, we must look to “the nature of the physician’s relationship and whether a related opinion could be expected to be formed through that involvement.” (Boatmen’s, 155 Ill. 2d at 324-25.) Or, as stated in Wakeford, we must ascertain whether “the opinion rendered is unrelated to the expert’s involvement in the case.” Wakeford, 154 Ill. 2d at 549.

We believe that Dr. Sullivan’s opinion that Gussie “improved” was related to his involvement with Gussie. Dr. Sullivan’s opinion was based in part on his own recollection of Gussie and in part on the notations within Gussie’s medical records. Dr. Sullivan had recommended following his examination that a myelogram be “considered” the next week if Gussie did not improve. Whether Gussie did improve that next week, therefore, was not unrelated to Dr. Sullivan’s examination of Gussie. Plaintiff’s Rule 220 argument is accordingly rejected.

Plaintiff next contends on appeal that the circuit court erred by limiting his cross-examination of defense expert Dr. Kelvin Von Roenn. Specifically, plaintiff argues that the court should have allowed him to question Dr. Von Roenn about his retention and deposition testimony in a pending, unrelated medical malpractice action against Dr. Yarzagaray. Plaintiff makes the related argument that he should have been allowed to question Dr. Von Roenn to establish that he had been hired as an expert witness on defendants’ behalf by the Illinois State Medical Society (ISMS); that Dr. Von Roenn was a member of ISMS; that in at least half of the cases where he had testified for the defense he was hired by ISMS; and that at the time of trial his partner was the president or vice-president of ISMS. Plaintiff asserts that his inability to cross-examine Dr. Von Roenn on these key matters significantly limited his ability to demonstrate Dr. Von Roenn’s bias in favor of defendants.

Defendants respond that the circuit court properly exercised its discretion in granting their in limine motion to prohibit inquiry into these matters. They further assert that plaintiff was not prejudiced by these rulings because the cross-examination he did conduct sufficiently exposed Dr. Von Roenn’s potential bias and partisanship:

“Q. And 90 percent of the reviews that you have done in medical malpractice cases have been on behalf of physicians who are being sued; is that right?
A. I think that, yes, 80 to 90 percent would be correct.
Q. You have, in the past, reviewed cases from Mr. Barry’s law firm, have you not?
A. Yes.
Q. 10 to 12 times, I believe, Does that sound about right?
A. Oh, I think probably more like 14,15.
Q. All right. And how much do you make an hour when you review cases for Baker & McKenzie, sir?
A. I charge the same for everyone, $250 an hour.
Q. All right. And you charge for appearing in court here today?
A. The same.
* * *
Q. And have you met Dr. Yarzagaray before at some neurological conferences?
A. Yes, I have.”

We find that the circuit court properly exercised its discretion in limiting plaintiffs cross-examination of Dr. Von Roenn. While the principal safeguard against errant expert testimony is the opportunity of opposing counsel to cross-examine, which includes the opportunity to probe bias, partisanship or financial interest (Trower v. Jones (1988), 121 Ill. 2d 211, 217, 520 N.E.2d 297; Sears v. Rutishauser (1984), 102 Ill. 2d 402, 407, 466 N.E.2d 210), limitation of cross-examination of a medical expert rests within the sound discretion of the trial judge (Sears, 102 Ill. 2d at 407-08), whose discretion will not be disturbed on review absent a showing of an abuse thereof and prejudice (Connelly v. General Motors Corp. (1989), 184 Ill. App. 3d 378, 390, 540 N.E.2d 370). Also, “[t]horough cross-examination of medical doctors must be tempered with protection of the doctor-patient privilege, *** subtrials on issues remote from the subject of the lawsuit should be avoided” and “ [references to prior testimony for the same party must be controlled by the trial judge.” Sears, 102 Ill. 2d at 407-08.

In Sears and Trower, our supreme court established certain “safe harbors” with respect to the proper cross-examination of medical experts. Counsel may be permitted to inquire regarding “(1) the annual income derived from services relating to serving as an expert witness and (2) the frequency with which the witness’ testimony in prior cases had been for ‘people suing doctors.’ ” (Trower, 121 Ill. 2d at 222.) The expert may also' be cross-examined regarding the number, frequency and financial benefit of patient referrals from the adverse party’s attorney. Sears, 102 Ill. 2d at 409.

In this case, plaintiff has failed to show an abuse of discretion. First, relative to the proffered questioning concerning Dr. Von Roenn’s prior deposition testimony on Dr. Yarzagaray’s behalf, the parties agree that this testimony occurred in an unrelated, pending medical malpractice case. True, Sears expressly states that “[a] medical expert can be questioned about *** prior testimony for the same party.” (Sears, 102 Ill. 2d at 408.) However, language within Sears demonstrates that this avenue of cross-examination is not without limitation. If plaintiff were allowed to ask the question he proffered during the in limine hearing — “Dr. Von Roenn, you have given a deposition on-behalf of Dr. Yarzagrary before, have you not?” — defense counsel would be compelled to inquire into what that case involved in order to show the basis for the testimony in that case. Indeed, defense counsel so argued during the hearing, and the trial court acknowledged the problem of interjecting another lawsuit into the present case. Sears also compels that courts be concerned with the doctor-patient privilege. Given the length of the proceedings already, the danger of interjecting an unrelated issue into the present case, the discretion which trial judges have in limiting this sort of “prior testimony” cross-examination (Sears, 102 Ill. 2d at 408), and the cross-examination testimony which plaintiff did elicit, no abuse of discretion has been shown.

Relative to plaintiff’s proposed inquiries regarding ISMS, the trial court could properly exclude these questions on the ground that they would have interjected the issue of liability insurance into the case. It is generally reversible error to inform the jury in a negligence action as to the existence or absence of insurance. The fact that a person is insured, or not insured, has no possible bearing on the question of negligence. Huber v. Seaton (1989), 186 Ill. App. 3d 503, 507, 542 N.E.2d 464.

Here, the trial judge believed that the proffered questioning could indirectly interject the issue of liability insurance into the case. While plaintiff asserts that he could pose any questions in such a manner that the word “insurance” would not arise, the risk still existed that the jury would nevertheless make an insurance connection. Further, plaintiff did cross-examine Dr. Von Roenn about how often he worked as an expert on the behalf of doctors being sued, how often defense counsél referred cases to him, and that Dr. Von Roenn knew Dr. Yazagaray from prior neurological conferences. The ruling, therefore, resulted in little prejudice to plaintiff as Dr. Von Roenn’s defense bias was exposed. For these' reasons, we find no error in the trial court’s handling of Dr. Von Roenn’s cross-examination.

Plaintiff finally contends that the circuit court erred in prohibiting the - use of plaintiff’s exhibit 65, “a demonstrative exhibit that accurately summarized portions of Gussie’s medical records.” We disagree.

Plaintiff exhibit 65 was a large board containing two charts. The first chart was entitled “DIAGNOSTIC TESTS DONE ON GUSSIE PAPPAS AT OAK PARK HOSPITAL.” The second chart bore the heading, “TESTS DONE OF GUSSIE PAPPAS THAT COULD HAVE DETECTED A POSTERIOR FOSSA LESION.” The charts covered the time between Gussie’s initial hospitalization, Saturday, November 27, 1982, and his release, Monday, December 6, 1982. Each chart was broken into subheadings, with each day of Gussie’s stay being a new subheading. Each subheading in turn listed the name of any test performed on Gussie for that particular day. If no tests were performed on Gussie that day, then the phrase “NO TESTS” appeared. The trial court refused to allow plaintiff to reveal any portion of exhibit 65 that carried the “no tests” language. The court’s ruling effectively rendered the exhibit useless.

The admission of demonstrative evidence is within the discretion of the trial court. (Bugno v. Mt. Sinai Hospital Medical Center (1990), 201 Ill. App. 3d 245, 250, 559 N.E.2d 1.) The evidence must be relevant, explanatory, accurate and not misleading. Smith v. Ohio Oil Co. (1956), 10 Ill. App. 2d 67, 76, 134 N.E.2d 526.

Plaintiff fails to show an abuse of discretion on appeal. The record demonstrates that doctors did perform diagnostic tests on Gussie every day of his hospitalization. Gussie received neurological examinations every day while at Oak Park Hospital. Contrary to plaintiff’s exhibit 65, the evidence showed a neurologic examination to be a diagnostic test which may reveal the presence of a posterior fossa mass. We must accordingly agree with the trial court that the “no tests” language of plaintiff’s exhibit 65 was misleading.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

CAMPBELL and BUCKLEY, JJ., concur.


author: JUSTICE SCARIANO

text:
    AMERICAN NATIONAL BANK AND TRUST COMPANY, Plaintiff-Appellant, v. EVELYN EDGEWORTH, n/k/a Evelyn Kurek, Defendant-Appellee.
    First District (2nd Division)
    No. 1—92—1197
    Opinion filed June 29, 1993.
    Galliani, Doell & Cozzi, Ltd., of Chicago (William R. Galliani and Patrick F. Healy, of counsel), for appellant.
    Querrey & Harrow, Ltd., of Chicago (Julie L. Trester and Michael Re-sis, of counsel), for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court:

On August 8, 1983, defendant Evelyn Edgeworth signed a lease to occupy a unit in an apartment building located in Justice, Illinois, and owned by plaintiff American National Bank and Trust Company. After the building was severely damaged by fire on December 18, 1983, plaintiff was reimbursed by its insurer, Aetna Life & Casualty Company (Aetna), for all of its damages in the amount of $592,282.73. In exchange, plaintiff released all of its claims against Aetna, and Aetna became subrogated to all rights which plaintiff might have against any third party as a result of such loss.

On December 17, 1986, plaintiff filed the instant lawsuit against defendant for all damage to the building caused by the fire. Count I of plaintiff’s amended complaint, filed on March 15, 1989, alleged that defendant’s negligent use, supervision and exercise of care of the premises caused the fire damage to the building. Count II charged that plaintiff was entitled to recover its damages based on defendant’s negligence under the doctrine of res ipsa loquitur. Count III alleged that plaintiff was entitled to recover its damages due to defendant’s breach of the written lease which required her to reimburse plaintiff for any repairs necessitated by her negligence. Finally, count IV was based on defendant’s willful and wanton negligence in that she allegedly permitted the use of illegal drugs on the premises.

In lieu of an answer, defendant filed a motion for summary judgment asserting that the lease exculpated her from any liability for negligently causing fire damage to the premises. After hearing argument, the trial court granted summary judgment in favor of defendant on all four counts of the complaint. Plaintiff’s motion to reconsider was denied; this appeal followed.

I

The purpose of summary judgment is to determine if any genuine issue of triable fact exists (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871), and generally, a motion for summary judgment should be granted only when the pleadings, depositions, admissions, and affidavits on file reveal that there is no genuine issue of material fact and that, accordingly, the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1005(c); Balla v. Gambro, Inc. (1991), 145 Ill. 2d 492, 508, 584 N.E.2d 104, 112.) However, where a defendant files a motion for summary judgment, as opposed to a motion to strike or dismiss, in lieu of an answer, the trial court should consider whether the complaint, standing alone, states a cause of action, accepting all plaintiff’s uncontradicted allegations as true, unless defendant establishes by affidavit that such allegations cannot be proven. (Moore v. Pinkert (1960), 28 Ill. App. 2d 320, 324-25, 171 N.E.2d 73, 74-75; accord Metropolitan Sanitary District of Greater Chicago v. Anthony Pontarelli & Sons, Inc. (1972), 7 Ill. App. 3d 829, 838-39, 288 N.E.2d 905, 911.) Because we review the grant of summary judgments de novo (Joiner v. Benton Community Bank (1980), 82 Ill. 2d 40, 411 N.E.2d 229; Polak v. Person (1992), 232 Ill. App. 3d 505, 509, 597 N.E.2d 810, 812), we must scrutinize the facts that were before the trial court in order to determine if the award was proper.

II

Defendant argues that plaintiff’s complaint fails to state a cause of action because she and plaintiff intended that she be held harmless for any fire damage inflicted on the premises, whether it be caused by negligence or otherwise. Plaintiff does not, nor could it, successfully contest the fact that it was required by the lease to obtain fire insurance. It urges, however, that the parties did not intend to exculpate defendant for fire damage negligently inflicted on the building, as evidenced by the following provision of the lease:

“4. Nothing herein contained shall in the the event of fire, explosion, or other casualty impose on OWNER any obligation to make repairs greater or different from the provisions set forth in the paragraph 10 of this lease (Fire and Casualty). *** In the event that any repair or replacement is necessitated by any negligence or wilfull act of TENANT, TENANT shall on demand reimburse OWNER for the cost thereof. *** TENANT shall not suffer or commit any waste in and about the Apartment or the Building and shall at TENANT’S expense keep the Apartment in good order and repair (except to the extent OWNER has in the Lease agreed to make repairs). On termination of this Lease, TENANT shall return the Apartment to OWNER in like condition, reasonable wear and tear excepted. If TENANT fails to keep the Apartment in such condition and repair, OWNER or OWNER’S agent may enter and put the Apartment in good condition and repair. On demand TENANT shall pay OWNER the cost of such work.” (Emphasis added.)

Our supreme court has previously considered the issue of whether a tenant can be held liable for negligently causing fire damage to leased premises. In the seminal case, Cerny-Pickas & Co. v. C.R. John Co. (1955), 7 Ill. 2d 393, 131 N.E.2d 100, the court reversed a jury verdict, holding that as a matter of law the tenant could not be responsible for negligently causing fire damage to the apartment building. After finding that the lease between the parties contemplated that the landlord was to obtain fire insurance on the building, the court rejected the landlord’s argument that the parties intended that the tenant was to remain liable for negligently caused fire damage, stating that “[i]t is more reasonable to assume *** that laymen would regard the word ‘fire’ as including all fires whether of negligent origin or otherwise.” (Cerny-Pickas, 7 Ill. 2d at 397, 131 N.E.2d at 103.) The court further reasoned:

“Under the construction urged by the lessor it would be necessary for both parties to the lease to carry fire insurance if they are to be protected. The lessee would have to insure against fires due to his negligence, and the lessor against fires due to other causes. Whether the kind of policy the lessee would have needed was commercially available when the present lease was entered into is at best dubious.” (Cerny-Pickas, 7 Ill. 2d at 398, 131 N.E.2d at 104.)

Finally, the court stated that the parties “consciously figured on the rentals to be paid by the tenant as the source of the fire insurance premiums and intended that the cost of insurance was to come from the tenants,” therefore, “[i]n practical effect the tenant paid the cost of the fire insurance.” (Cerny-Pickas, 7 Ill. 2d at 398, 131 N.E.2d at 104.) Accordingly, the court held that, as a matter of law, the lease absolved the tenant of any liability for negligently causing fire damage to the apartment. Cerny-Pickas & Co., 7 Ill. 2d at 398, 131 N.E.2d at 104; accord Stein v. Yarnall-Todd Chevrolet, Inc. (1968), 41 Ill. 2d 32, 241 N.E.2d 439; Sheridan v. Comp-U-Motive, Inc. (1988), 168 Ill. App. 3d 451, 522 N.E.2d 800; Artoe v. Cap (1986), 140 Ill. App. 3d 980, 489 N.E.2d 420; Continental Casualty Co. v. Polk Brothers, Inc. (1983), 120 Ill. App. 3d 395, 457 N.E.2d 1271; Windsor at Seven Oaks v. Kelly (1983), 113 Ill. App. 3d 978, 448 N.E.2d 251.

The supreme court recently revisited this issue in Dix Mutual Insurance Co. v. LaFramboise (1992), 149 Ill. 2d 314, 597 N.E.2d 622. In Dix, the lease between the landlord and the tenant contained nothing regarding fire insurance, and the only provision that might be considered to relate to that issue provided that “ ‘The Tenant will assume their [sic] own risk for their [sic] personal property and [the Landlord] will not be responsible for fire, wind, or water damage.’ ” (Dix, 149 Ill. 2d at 318, 597 N.E.2d at 624.) During the term of the lease, the tenant, with the landlord’s approval, attempted to remove some paint with a power stripper, during which process the house was damaged by fire. (Dix, 149 Ill. 2d at 318, 597 N.E.2d at 624.) The landlord filed a claim with its insurance company in the amount of $40,579 and was subsequently reimbursed for the loss. (Dix, 149 Ill. 2d at 318, 597 N.E.2d at 624.) The insurance company then brought a subrogation action against the tenant in order to recover the amount of the fire loss allegedly caused by the tenant’s negligence. (Dix, 149 Ill. 2d at 318, 597 N.E.2d at 624.) The trial court dismissed the insurance company’s complaint, but the appellate court reversed. Dix Mutual Insurance Co. v. LaFramboise (1991), 213 Ill. App. 3d 292, 571 N.E.2d 1159.

The supreme court overturned the decision of the appellate court. It held first that the spirit of the lease at issue clearly manifested that the parties intended to place only minor duties on the tenant and that the landlord was to assume responsibility for insuring the premises against fire damage. (Dix, 149 Ill. 2d at 321, 597 N.E.2d at 625-26.) The court then reaffirmed the rule expressed in Cerny-Pickas which holds, as we have already noted, that where a landlord obtains fire insurance on the leased premises, the tenant is absolved of any liability for fires which were negligently as well as accidentally caused. (Dix, 149 Ill. 2d at 322, 597 N.E.2d at 626.) It explained:

“ ‘ “Fire insurers expect to pay fire losses for negligent fires and their rates are calculated upon that basis; indeed, we may well assume that a great majority of fires are caused by someone’s negligence in a greater or lesser degree.” [Citations.]’ [Citation.]
[Were we to adopt the insurance company’s argument,] ‘it would be necessary for both parties to the lease to carry fire insurance if they are to be protected. The lessee would have to insure against fires due to his negligence, and the lessor against fires due to other causes. *** The parties contemplated that the risk of loss by fire be insured against and we see no reason to suppose that they did not contemplate the customary insurance policy which covers both accidental and negligent fires.’ [Citation.] ***
*** ‘ “The ancient law has been acquiesced in, and consciously or unconsciously, the cost of insurance to the landlord, or the value of the risk enters into the amount of rent.” *** “They necessarily consciously figured on the rentals to be paid by the tenant as the source of the fire insurance premiums and intended that the cost of insurance was to come from the tenants. In practical effect, the tenant paid the cost of the fire insurance.” ’ [Citation.]” Dix, 149 Ill. 2d at 322, 597 N.E.2d at 626.

In light of these authorities, we must disagree with plaintiff’s argument in the instant case that the fire insurance it purchased covered only fire damage which was caused accidentally to the premises. We are bound to follow the unequivocal holding of our supreme court that because it would be incongruous to require both the landlord and the tenant to obtain fire insurance on the same premises, and because the tenant in essence pays for the insurance out of his rent, the tenant, as a matter of law, is exculpated from liability for negligently causing fire damage to the building where the landlord procures insurance thereon, and the landlord must look solely to the insurer for reimbursement for such losses.

For all of the foregoing reasons, we affirm the trial court’s grant of summary judgment in favor of defendant.

Affirmed.

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