author: PRESIDING JUSTICE MANNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARL GUIDRY, Defendant-Appellant.
    First District (1st Division)
    No. 1—89—2675
    Opinion filed September 23, 1991.
    Randolph N. Stone, Public Defender, of Chicago (James N. Perlman, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Michael Latz, and Loren H. Seidner, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

Defendant, Carl Guidry, was charged by information with two counts of first-degree murder. (Ill. Rev. Stat. 1987, ch. 38, pars. 9—1(a)(1), (a)(2).) Following a bench trial, defendant was convicted initially of first-degree murder. However, after hearing arguments on post-trial motions, the trial court vacated its finding of guilty of first-degree murder, entered a finding of guilty of second-degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9—2(a)) and sentenced defendant to a term of 15 years’ imprisonment in the Illinois Department of Corrections.

On appeal, defendant contends that the evidence adduced against him at trial was insufficient to prove him guilty beyond a reasonable doubt of second-degree murder. He also contends that the current Illinois homicide statute, which sets forth the elements for first- and second-degree murder, and in particular, the second-degree murder statute (Ill. Rev. Stat. 1987, ch. 38, par. 9—2), is unconstitutional on the grounds that it violates Federal and State due process rights, equal protection rights, and the separation of powers doctrine.

At trial, the State’s case in chief consisted primarily of the testimony of Bach Moore (Moore), girl friend of the decedent, Keith Nash (Nash). She testified that on October 15, 1987, at about 7 p.m., she and Nash, both of whom had just completed their work shift at the Hawthorne Race Track, were walking down the racetrack which led to Cicero Avenue. Nash left Moore for a few minutes, at which time the defendant approached her, called her a “bitch” and inquired why Nash had taken his bicycle. When she responded that she did not know anything about a bicycle, defendant left. Moore proceeded until she reached a gas station located on Cicero Avenue where she again saw Nash. At this time, Nash had a bicycle but he was unable to ride it because something was wrong with one of the pedals. As the two continued on foot, Moore told Nash about her encounter with defendant.

Soon thereafter, Moore saw a brown Ford automobile approaching them. Three men got out of the vehicle: the defendant, Lionel Walker (Walker) and Floyd Rose (Rose). As the defendant walked toward Moore and Nash, Moore noticed defendant had an object with a silver tip in his right hand so she told Nash to “[r]un, he has a knife.” Defendant then asked Nash “why are you taking my bike[?]”; however, without waiting for a response, defendant swung up his right hand striking Nash in the upper part of his chest. After Nash fell to the ground, defendant, while still holding an object in his right hand, said “that’s how dogs die” and then left with the other two men. Moore also testified that she never saw a knife or anything else in Nash’s hands except the bicycle.

Anthony Versetto, a security guard at the racetrack, testified that on the evening in question, defendant and Rose came up to him while he was walking with Walker around 7 p.m. and defendant said something about his bike being taken and asked Walker to go with him. Defendant and Rose left for a few minutes, and when they returned, defendant, who was carrying half of a pool stick, stated that he was going to get the guy who took his bike. Versetto testified that a short while later he saw Rose return through the back gate of the track with defendant’s bike. He further stated that he had seen 15 to 20 other employees using that bike.

Because Walker and Rose were unavailable to be witnesses at the trial, the parties stipulated to their testimony that was previously given during the preliminary hearing. Walker had testified that he drove defendant and Rose to Cicero Avenue to retrieve defendant’s bike. Defendant saw Nash with his bike, exited the car and told Nash to return the bike. When Nash flipped the bike to defendant, defendant punched him in the chest. As Walker drove off, he saw Nash on the ground through his rear view car mirror; however, he had not seen a struggle or fight between defendant and Nash. Walker also previously testified that about 30 minutes later, while back in his room at the track, defendant returned and stated that he thought he had stabbed Nash.

Rose had previously testified that he was accompanying defendant on October 15 when they met up with Walker. The three men, while traveling in Walker’s car in search of Nash and defendant’s bike, found Nash on Cicero Avenue, and defendant got out of the car. When Rose exited the car, he proceeded to the gas station where he saw defendant. Defendant told Rose to take the bike back to the racetrack and said that he had cut Nash.

Following a stipulation of the medical examiner’s findings that Nash had died of a stab wound to the chest, defendant testified on his own behalf. Defendant testified that on October 15, 1987, he was working two jobs at the racetrack; in the morning he exercised the horses and in the evenings he fed them. To aid in his jobs, defendant had a bicycle to travel from one bam to the other, a pool cue for prodding the horses, and a small knife that he kept in his belt to cut the wrapping off the bales of hay. Defendant stated that several employees used the bike in performing their job duties as well. That evening, at about 6 p.m., defendant parked the bike outside a bam and went inside to feed the horses. When he came back outside, the bike was gone so he inquired about it. Someone told defendant that a man and a girl were walking down the road with his bike. Defendant then ran after Nash and Moore, hollering for them to return his bike; however, Nash broke away. Defendant approached Moore and inquired about the guy with the bike, but Moore responded that she didn’t know what defendant was talking about.

Later, defendant, Walker and Rose got into Walker’s car and located Nash and Moore. Defendant testified that he asked Nash for the bike but Nash refused and pulled a knife with a five-inch blade out of his pocket. Defendant then tried to grab the knife and take the bike from Nash, and as the two men struggled and scuffled for the knife, Nash was stabbed and fell to the ground. Defendant picked up his bike, brought it to the gas station and gave it to Rose. Defendant admitted that he carried a knife on October 15, but denied ever removing it from his belt, and he also admitted that he told Rose and Walker that Nash was stabbed.

The parties presented the stipulation of Officer Foley, who, if called to testify, would state that immediately after the incident Rose told the officer a brief struggle ensued between defendant and Nash. Additionally, Ms. Klemener, a law clerk at the public defender’s office, would testify that during an interview, Moore stated that she did not see defendant with the knife until after the incident.

Defendant first contends on appeal that his conviction for second-degree murder should be reversed because the evidence against him is so improbable as to raise a reasonable doubt of guilt. Specifically, he asserts that Moore was a biased witness; that Moore’s testimony was impeached on two crucial facts, to wit: seeing defendant with a knife prior to the incident and hearing defendant exclaim “that’s how dogs die” after the incident, considering that such statement was not included in Officer Foley’s written report; that the evidence was contradictory concerning whether Nash’s death was preceded by a straggle between the men; and that since defendant’s testimony that Nash had the knife and was the aggressor was uncontradicted, it could not be disbelieved by the trier of fact.

We believe that a rational trier of fact could have found that Moore’s testimony was candid and credible and that her testimony and the other evidence presented at trial support the trial court’s finding of guilt. When presented with an appeal based upon a lack of sufficient evidence, the relevant question before the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 453 (adopting the standard enunciated in Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781).) The evidence must be so unsatisfactory that it creates a reasonable doubt in order to set aside a criminal conviction. People v. Hooper (1989), 133 Ill. 2d 469, 497, 552 N.E.2d 684.

It is well established that the testimony of a sole witness, if positive and credible, is sufficient to sustain a conviction (see People v. Novotny (1968), 41 Ill. 2d 401, 244 N.E.2d 182; see also People v. Velez (1984), 123 Ill. App. 3d 210, 462 N.E.2d 746), and the resolution of the credibility of a witness is within the exclusive province of the trier of fact. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) Moreover, it is not the duty of a reviewing court to substitute its judgement as to the credibility of witnesses or the weight of the evidence for that of the trier of fact. Novotny, 41 Ill. 2d 401, 244 N.E.2d 182.

In the present case, the evidence shows that defendant admitted to stabbing Nash. The testimony of Moore was corroborated by the stipulated testimony of both Walker that he saw defendant punch Nash in the chest and Rose that he saw defendant return to the gas station with the bike and heard him state “he had cut the boy.” With respect to the events leading up to the confrontation between Nash and defendant and the ultimate stabbing of Nash, the testimony of Moore and defendant is almost identical.

Defendant claims that Moore’s testimony was impeached with regard to his purported statement “that’s how dogs die,” since it was discovered that such statement was not included in Foley’s police report. Yet, there is nothing in the record to suggest Moore did not tell Foley about the comment or that the report contained a verbatim account of Moore’s statement. Accordingly, we affirm the trial court’s conviction of defendant for second-degree murder.

In response to defendant’s arguments concerning the constitutionality of the Illinois homicide statute, the State initially asserts that defendant has no standing to raise any of the constitutional issues in this case since he was not adversely affected by any of the rules of law he is attempting to challenge on appeal. The State supports its argument with Broadrick v. Oklahoma (1973), 413 U.S. 601, 37 L. Ed. 2d 830, 93 S. Ct. 2908, and People v. Wisslead (1985), 108 Ill. 2d 389, 484 N.E.2d 1081, contending that these cases stand for the proposition that “in the absence of facts demonstrating an unconstitutional application of the statute in this case the. defendant may not challenge the statute on the grounds that it might conceivably be applied unconstitutionally in some hypothetical case.” Wisslead, 108 Ill. 2d at 397; Broadrick, 413 U.S. at 610, 37 L. Ed. 2d at 839, 93 S. Ct. at 2915.

Moreover, “[a] party may question the constitutional validity of a statutory provision only if he or she has sustained or is in immediate danger of sustaining some direct injury as a result of the enforcement of the statute.” (People v. Esposito (1988), 121 Ill. 2d 491, 512, 521 N.E.2d 873; see also People v. Ziltz (1983), 98 Ill. 2d 38, 455 N.E.2d 70.) Neither may a party assert a violation of the constitutional rights of anybody, save his own rights. People v. Rogers (1989), 133 Ill. 2d 1, 549 N.E.2d 226.

While we find the State’s contention with respect to the issue of standing to be persuasive as it is presented within the present factual matrix, we will briefly discuss the issues raised and ruled upon by this court in light of the constitutional significance involved. Defendant contends that the murder statute is unconstitutional because it improperly shifts the burden of proof to the defendant, although the burden of proof should be on the prosecution to disprove second-degree murder in order to sustain a first-degree murder conviction. He also urges that the statute discourages those convicted of second-degree murder from appealing their convictions for fear that on remand a trial court might increase the conviction to first-degree murder. Finally, defendant asserts that the murder statute violates the separation of powers doctrine because prosecutors are prohibited from charging second-degree murder rather than first-degree murder.

' The State counters that defendant here was convicted only of second-degree murder so the issue of what is necessary to sustain a conviction for first-degree murder is irrelevant. Second, it maintains that defendant here has not been discouraged from appealing his second-degree conviction, the State is not arguing that such conviction be set aside for the greater offense of first-degree murder, and in any event, a defendant placed in such a position is protected by the principle of double jeopardy. The State also retorts that defendant’s separation of powers argument must fail because defendant is not adversely affected where he has been convicted of second-degree murder only, because he is not a prosecutor and, further, because the Third District of the Appellate Court in People v. Burks (1989), 189 Ill. App. 3d 782, 545 N.E.2d 782, has determined that “[t]he statute does not, however, prohibit the State from initially charging a defendant with second degree murder.” Burks, 189 Ill. App. 3d at 785.

Several decisions rendered by the appellate court have specifically addressed and rejected defendant’s challenges to the constitutionality of the Illinois murder statutes. Accord People v. Jerome (1990), 206 Ill. App. 3d 428, 564 N.E.2d 221; People v. Clark (1991), 207 Ill. App. 3d 439, 565 N.E.2d 1373; People v. Buckner (1990), 203 Ill. App. 3d 525, 561 N.E.2d 335; People v. Burks (1989), 189 Ill. App. 3d 782, 545 N.E.2d 782, appeal denied (1991), 136 Ill. 2d 547, 567 N.E.2d 335; People v. Thomas (1991), 216 Ill. App. 3d 469. See also People v. Collins (1991), 213 Ill. App. 3d 818, 572 N.E.2d 1005; People v. Gore (1991), 212 Ill. App. 3d 984, 571 N.E.2d 1041; People v. Lyons (1991), 213 Ill. App. 3d 617, 572 N.E.2d 1163.

In Jerome (206 Ill. App. 3d 428, 564 N.E.2d 221), the defendant was charged and convicted of first-degree murder. On appeal, he contended that the trial court erred in refusing to instruct the jury on self-defense and second-degree murder and that the second-degree murder statute was unconstitutional. Defendant asserted that the Illinois second-degree murder statute violated due process by shifting the burden to the defendant to prove second-degree murder, a scheme analogous to the one struck down by the United States Supreme Court in Mullaney v. Wilbur (1975), 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881. The defendant here presents essentially the same argument on appeal.

The Jerome court distinguished Maine’s felonious homicide statute at issue in Mullaney, from the Illinois murder statute. The court there stated:

“In Maine, however, a killing became murder when it resulted from a deliberate, cruel act committed by one person against another, suddenly without any or without a considerable provocation. [Citation.] In other words, in Maine, absence of provocation was a part of the definition of malice; therefore, lack of provocation was an element of the crime, and the State had to prove that element beyond a reasonable doubt; it could not be presumed. [Citation.] Malice is defined differently in Illinois, and lack of provocation is not an element of the offense of first-degree murder in Illinois. The Illinois statute does not suffer the constitutional infirmity present in the Maine statute. Requiring the defendant to prove a mitigating factor in order to reduce the offense to second-degree murder does not violate due process. [Citation.]” (Emphasis in original.) Jerome, 206 Ill. App. 3d at 435.

In Clark (207 Ill. App. 3d 439, 565 N.E.2d 1373), defendant, convicted of first-degree murder, contended on appeal that because he believed he was justified in killing the victim, although that belief was unreasonable, he should have been convicted of second-degree murder rather than first-degree murder. Like the defendant here, the Clark defendant questioned whether the Illinois statute was unconstitutional as a violation of due process, equal protection and separation of powers. Although the Clark defendant challenged the first-degree murder statute while the defendant here challenges the constitutionality of the second-degree murder statute, the analysis and conclusion remain the same. That is, the burden of proof remains on the State to prove beyond a reasonable doubt each of the elements of the particular offense charged.

The defendant in Clark argued that he should not be required to prove second-degree murder to escape a presumption of guilt of first-degree murder. Furthermore, he asserted that defendants should be allowed to plead guilty to second-degree murder under appropriate circumstances. In replying to defendant’s argument there, the court stated:

“A fair reading of the statute in question leads to the clear conclusion there is no presumption of guilt of first-degree murder which must be rebutted by defendant. Contrary to defendant’s assertions, a defendant could plead guilty to second-degree murder. [Citation.] The elements of first-degree murder under the current statute are identical to the offense of murder under the prior statute. [Citation.] The mitigating factors of second-degree murder are identical to the factors which would have reduced murder to voluntary manslaughter under the prior law. [Citation.] With regard to the prior law, the decision in Reddick had this to say:
‘Thus, under the 1961 Code, if a defendant in a murder trial presents sufficient evidence to raise issues which would reduce the charge of murder to voluntary manslaughter, then to sustain the murder conviction, the People must prove beyond a reasonable doubt that those defenses are meritless, and must also prove beyond a reasonable doubt the statutory elements of murder.’ [Citation.]
In First and Second Degree Murder in Illinois, after acknowledging the second-degree murder statute was written with the intention of retaining all substantive statutory and case law pertaining to voluntary manslaughter, the author notes the fundamental difference is that under the current statute a defendant can only be found guilty if the State first proves guilt of first-degree murder beyond a reasonable doubt and the defendant proves by a preponderance of the evidence one of the two mitigating factors. Steigmann, First and Second Degree Murder in Illinois, 75 Ill. B. J. 494 (1987).
Therefore, while there may be some difference between the prior law and the existing statutory scheme, the differences which defendant purports to rely on in seeking to have the statute declared unconstitutional do not exist. Defendant does not deny that it is within the legislature’s province to define criminal offenses. [Citation.]
Nor is the defendant’s separation-of-powers argument persuasive. *** As previously stated, the State’s Attorney has the discretion of charging a defendant with second-degree murder. [Citation.] *** The procedure outlined in section 9 — 2(c) of the Code only refers to the circumstances where the State charges first-degree murder and the defendant wants to reduce it to second-degree murder. Therefore, defendant’s constitutional challenges are without merit.” Clark, 207 Ill. App. 3d at 448-49.

In Buckner (203 Ill. App. 3d 525, 561 N.E.2d 335), also rendered by the fourth district, defendant argued that if the new statute, specifically section 9—2, which defines and governs second-degree murder, retained all of the substantive law previously applicable to voluntary manslaughter, the State then has the burden of disproving second-degree murder. He alleged that the new statute therefore was unconstitutional because it placed such a burden on the defendant.

The Buckner court rejected the contention that the Illinois homicide statute violates due process by requiring defendants to prove the mental state necessary to reduce first-degree murder to second-degree murder. The court went on to state that defendant’s argument was contrary to the plain meaning of the statute, specifically, the burden-shifting explanation found in subsection 9—2(c). The court there concluded:

“By its terms [subsection 9—2(c)] it is only when the defendant is charged with first-degree murder and seeks to present the trier of fact with the option of convicting him of the lesser offense of second-degree murder that he has any burden of proof. To this extent, the second-degree murder statute functions as a defense against the first-degree murder charge, which the State is still required to prove before the trier of fact considers whether the mitigating factors were shown by a preponderance and, if it so finds, the State must disprove such factor(s) by proof beyond a reasonable doubt.
If instead the defendant is charged with second-degree murder, the State will prove first-degree murder and concede (or prove) the mitigating factors, and the burden of proof on the mitigating factors never shifts to defendant, though he may choose to present a defense.” (Emphasis in original.) Buckner, 203 Ill. App. 3d at 533-34.

Moreover, in People v. Thomas (1991), 216 Ill. App. 3d 469, a case decided by the first district, we stated that “Criminal Code section 3—4(a) protects defendants convicted of the old offense of voluntary manslaughter from double jeopardy. [Citation.] *** [And,] Criminal Code section 3— 4(b) protects a defendant convicted of second degree murder from being retried for first degree murder. [Citation.]” (People v. Thomas, 216 Ill. App. 3d at 472.) The Thomas court held that defendants convicted of second-degree murder do not risk being put in jeopardy any more than defendants convicted of first-degree murder and consequently are not denied equal protection of the law. (People v. Thomas, 216 Ill. App. 3d at 472.) The court there rationalized that “[w]hen a defendant is charged with first degree murder, but convicted of second-degree murder, the trier of fact necessarily determined that the defendant proved the existence of a mitigating factor. [Citations.] As a result, the State and defendant cannot again litigate the element of mitigation. [Citations.]” People v. Thomas, 216 Ill. App. 3d at 473.

In the present case, defendant was charged and initially convicted of first-degree murder. However, after hearing argument by the parties on defendant’s post-trial motion, the trier of fact, the trial court, implicitly found the existence of one of the mitigating factors when it reduced defendant’s conviction to second-degree murder. Accordingly, we hold that defendant here has not been adversely affected where he was convicted of second-degree murder. Moreover, based upon the principles of law and rationale as set forth in Thomas, Burks, Buckner, Jerome, Clark, and the other appellate court decisions, we reject defendant’s challenges concerning the constitutionality of the Illinois homicide statute and affirm his conviction and sentence.

Affirmed.

BUCKLEY and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE SCARIANO

license: Public Domain

text:
    KENNETH MAZUREK, Plaintiff-Appellant and Cross-Appellee, v. CROSSLEY CONSTRUCTION COMPANY, Defendant-Appellee (Turner Construction Company, Defendant-Appellee and Cross-Appellant).
    First District (2nd Division)
    No. 1—89—1089
    Opinion filed September 24, 1991.

      Martin J. Healy, Jr., & Associates and William J. Harte, Ltd., both of Chicago (Martin J. Healy, Jr., William J. Harte, and Joan M. Mannix, of counsel), for appellant.
    Keevers & Hittle, of Chicago (Thomas J. Keevers and Paul M. Hummel, of counsel), for appellee Turner Construction Company.
    Fischel & Kahn, Ltd., of Chicago (Dan Brusslan, David W. Inlander, and Stephen R. Miller, of counsel), for appellee Crossley Construction Company.
   PRESIDING JUSTICE SCARIANO

delivered the opinion of the court:

Kenneth Mazurek appeals from the circuit court’s declining to set aside a verdict which denied the liability of Crossley Construction Company (Crossley) and Turner Construction Company (Turner) (collectively, defendants) for injuries Mazurek sustained in an accident at a construction site. Mazurek claims that the verdict was against the manifest weight of the evidence and that he was denied a fair trial by Crossley’s: (1) improper opening and closing arguments; (2) implicit suggestion during its questioning of a witness that Mazurek had suborned testimony; (3) failure to prove the existence of a statement with which it had attempted to impeach a witness; (4) attempts to introduce evidence which the trial court had previously ruled inadmissible; and (5) use of information obtained through an ex parte communication with Mazurek’s physician. Mazurek seeks reversal of the judgment and a remand for a new trial.

Turner cross-appeals from the circuit court’s refusal to dismiss Mazurek’s suit against it, claiming that pursuant to an agreement between it and Mazurek, Mazurek lost his right to a new trial in his suit against Turner. It seeks reversal of the circuit court’s decision and a dismissal of Mazurek’s suit against it.

Mazurek’s second amended complaint alleged that the defendants caused him to be injured as the result of their wilful violation of section 1 of the Structural Work Act (Ill. Rev. Stat. 1979, ch. 48, par. 60); a second count alleging negligence against Turner is not at issue in this appeal. Further, while Mazurek originally complained about the defendants’ actions with regard to both the basement and the first floor of the construction site, the defendants’ actions with regard to the basement only are now disputed.

Mazurek testified at trial that he was working as an electrician for Commercial Light Company (Commercial) at the construction site of the Three First National Building, in Chicago, on October 9, 1980, where, at around 10:30 a.m., eight reels of electrical cable arrived at the first floor of the site. Each reel was about 36 to 42 inches in diameter and 2V2 to 3 feet wide; six reels contained 500 feet and two contained 1,000 feet of the cable.

Mazurek and another person unloaded the reels from the truck with the aid of a forklift; Mazurek then rolled the reels into a building and toward an elevator. While pivoting the reel to avoid an obstruction, Mazurek pulled a muscle in his back, but thought “nothing of it” and continued working. Although two other employees assisted Mazurek in getting the two reels containing 1,000 feet of cable to the basement, Mazurek began taking the other six reels into the basement when the two other employees broke for lunch because he was concerned about possible theft of the cable. The first five of the six reels were transported to the basement without incident by Mazurek’s rolling each of them into an elevator, and once the elevator arrived at the basement, by his rolling them down a ramp and into an equipment room. He estimated that each of the six reels weighed between 1,200 and 1,500 pounds.

As Mazurek was rolling the sixth and final reel onto the elevator, a Crossley employee arrived with a cart of mortar. The elevator operator told Mazurek to wait while he delivered the Crossley employee to the basement, since delivery of the mortar took priority over the cable. When the elevator returned, Mazurek rolled the reel onto it and went down into the basement. He backed down the ramp, rolling the reel in front of him, and slipped when he was four to five feet down the ramp. He landed on top of the reel, tried to slow it as it rolled down the ramp, but was forced by the reel against a wall. He heard a “snap” in his back, the reel hit his left knee, and he felt “a lot of pain” in his legs and back. When he looked back and up at the ramp, he saw a blotch of mortar with one of his shoe prints in it. After resting for a few minutes, Mazurek put a bar into the reel, twisted it in order to roll the reel, and, turning the wheel with the bar, rolled it into the equipment room.

Panamambur Kini, Mazurek’s physician, testified that Mazurek told him on October 13, 1980, that four days earlier he had “moved a lot of cable, felt something pull in the back and since then [had] pain in the left leg.” Kini diagnosed him with an “acute lumbar sprain with root compression.” Mazurek spent 11 days in the hospital.

Edward Schroeder, an orthopedic surgeon, testified that he examined Mazurek in the hospital on October 15, 1980. Mazurek told him that one week prior to the examination he “had been pushing a heavy roll of wire when he lost control of it and went to redirect it and suddenly twisted his back and then had severe low back pain with pain that radiated down both legs.” Mazurek was rehospitalized on December 1, 1980, because of increasing leg and lower back pain. After further testing, Mazurek was diagnosed as having a ruptured disk; he then underwent surgery. Later, in April 1981, Mazurek had arthroscopic surgery on his left knee.

Ben Lichtenstein, a neurologist, examined Mazurek on December 30, 1980, and testified that he related that he “was moving 1,000-foot reels of cable and he had a pain in his low back which radiated down his left lower extremity.” In addition, he told Lichtenstein that “he strained his back he injured his left knee when it struck a reel of cable [sic].”

Richard Geline, an orthopedic surgeon, testified that he twice examined Mazurek, who told him that “he was pushing a reel of cable, during which time he developed onset of low back pain. *** [H]e continued working. *** [T]he same day he suffered a twisting injury to left knee.”

Several witnesses testified as to the conditions at the accident site. Mazurek testified that although there was usually mortar on the ramp upon which he slipped, he did not notice any on the ramp on the day of his accident until after he fell. Patrick O’Hara, a foreman for Commercial at the time, testified that he went down into the basement about five times daily, and that he observed it on the day Mazurek was injured. He described the basement as “cluttered, sloppy. There was mortar on the ramps, there was mortar on the floor.” On the day Mazurek was injured, mortar was mixed on the first floor and brought in tubs down the elevator, down the ramp and into the basement. The tubs were usually filled to the brim when they were transported. O’Hara also observed mortar being spilled as the tubs were removed from the elevator while in the basement.

O’Hara had complained about basement conditions to a union steward and to Turner, the general contractor for the project, primarily about debris which got in the way of persons moving material from one spot to another, “slippery material like mortar, like taping compound, like anything that would be laying on the ground. I complained about tripping hazards, slipping hazards, those type of things.” He observed no changes resulting from his complaints, however, and concluded that “[t]he Three First National job was the sloppiest job I have ever been on in my life ever.”

O’Hara’s testimony about mortar tubs being filled to the top and about mortar being spilled in the basement and on the ramp leading from the elevator to the basement was corroborated by his brother, John O’Hara, who was an electrical superintendent for Commercial at the time of the incident. William Mosher, who ran the elevator for Turner on the day of the accident, testified that mortar was always spilled in the elevator and on the ramp. He would clean mortar from the elevator, but didn’t have time to clean the ramp, which “was the laborers’ job.”

Wilfred Brennan was a union steward for Commercial when Mazurek was hurt. He testified that conditions in the basement were “poor” and that there was “a lot of garbage, building construction debris.” He remembered mortar tubs being filled “just about to the top,” but did not remember any spillage. He saw no effect from the complaints about conditions which he made to Turner, and in October 1980 he reported the conditions to the Occupational Safety and Health Administration. That agency inspected the site, and Brennan believed that a citation was issued.

Edward Does testified that he was a mechanical electrical superintendent for Turner at the time of the accident. He described the ramp on which Mazurek slipped as a piece of plywood measuring about four by six feet. He also stated that he “probably” saw mortar spilled on the floor. When it was spilled, the mason using the mortar usually was expected to clean it up. Does stated that keeping the basement clean was a constant problem because of the many workers and materials there.

Thomas Wreglesworth testified that he was a bricklayer foreman for Crossley at the time of the accident. According to him, the tubs used to transport mortar from the first floor to the basement were usually filled from five to six inches from the top, so as to be easier to move. Further, during the time he worked at the site, and despite observing the ramp several times a day, he never saw mortar spilled on it. If mortar was spilled on the ramp, it was cleaned up “right away *** [f]or safety.” Finally, he stated that the area around the ramp was “spotless.”

The O’Hara brothers testified about the procedures for moving reels of electrical cable. Patrick O’Hara testified that while rolling the type of cable Mazurek rolled is ordinarily safe, it is usually done by more than one person. John O’Hara stated that two men were required for moving one of the 1,000-foot reels, and that the 500-foot reels, weighing about 1,500 pounds, could be rolled by one person; however, it was “unlikely” that one person could maneuver it without getting hurt. In order to turn a reel to roll in a different direction, a pipe needed to be placed in the center core, then used as a lever to turn the reel.

Following the jury's verdict for Crossley and Turner, Mazurek moved to set the verdict aside and to grant a new trial. Turner then moved to dismiss Mazurek’s case against it, citing an agreement between itself and Mazurek by which Mazurek, in consideration of $200,000 from Turner, agreed “not to execute any judgment against [Turner] *** concerning the *** matter, above Four Hundred Thousand Dollars ($400,000.00).” Further, the agreement obliged Turner “to pay as additional consideration the amount by which any verdict herein, exceeds Two Hundred Thousand Dollars ($200,000.00), up to the amount of Four Hundred Thousand Dollars ($400,000.00).” Finally, the agreement stated that “Payment herein is non-contingent and will not be effected [sic] [both Mazurek and Turner agree this should read ‘affected’] by Appeal of any party.” The agreement was typed on Mazurek’s counsel’s letterhead. The court denied both Mazurek’s and Turner’s motions.

Mazurek first claims that the jury’s verdict was against the manifest weight of the evidence. Crossley and Turner respond that Mazurek waived his right to the review of this issue by failing to raise it in his post-trial motion. Mazurek replies that he implicitly raised the issue by arguing in his brief supporting his post-trial motion that absent prejudicial arguments by Crossley and Turner, the verdict would have been different. In addition, Mazurek points out that Crossley argued in its response to his post-trial motion that Mazurek was not alleging the inadequacy of the evidence and that the trial court’s review was limited to the question of whether the jury’s verdict was so amply supported by the evidence that its verdict was not affected by any errors. And in his reply brief on his post-trial motion, Mazurek argued that the verdict was contrary to the evidence. However, he cites no discussion of the issue during the hearing on his post-trial motion.

“A party may not urge as error on review of the ruling on his post-trial motion any point, ground, or relief not specified in the motion.” (107 Ill. 2d R. 366(b)(2)(iii).) Mazurek’s post-trial motion does not specify sufficiency of the evidence as a ground for relief. Moreover, the cases Mazurek cites do not support his theory that “the fact that the issue was raised in Crossley’s Response and Plaintiff’s Reply served to preserve the issue.”

In Wolter v. Chicago Melrose Park Associates (1979), 68 Ill. App. 3d 1011, 1016-17, cited by Mazurek, the appellant had claimed in his post-trial motion that the verdict was against the manifest weight of the evidence. The court held that the claim was sufficiently specific to have complied with the requirement of section 68.1(2) of the former Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 68.1(2)), now section 2—1202(b) of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2—1202(b)), that “The post-trial motion must contain the points relied upon, particularly specifying the grounds in support thereof ***.” In the instant case, Turner and Crossley correctly aver that Mazurek failed to raise the issue altogether, not just that it was raised too generally.

Although the court in Fred Olson Motor Service v. Container Corp. of America (1980), 81 Ill. App. 3d 825, 831, allowed an appellant to raise the sufficiency of the evidence on appeal despite having failed to raise the issue in his post-trial motion, the “manifestf ] unfair[ness]” which compelled the decision in that case is not present here. The court noted that the appellant had failed to request a new trial because the judgment which imposed liability upon it had also required another party to indemnify it. When the indemnification was reversed on appeal, the appellant was then prejudiced by the liability which it had formerly been able to avoid. In addition, the appellant had moved for a directed verdict during the trial, and the court held that, “Where a litigant has argued on appeal that a judgment was against the manifest weight of the evidence without preserving such grounds in a post-trial motion, the appeal will not be summarily dismissed if the issue had been considered at trial.” In the instant case, this issue was not considered at trial and Mazurek fails to point to any circumstances that would excuse his failure to raise the issue in his post-trial motion. Accordingly, the issue has been waived.

Mazurek then claims that following Mosher’s direct testimony that mortar was always spilled on the ramp, Crossley asked questions in cross-examination which implied that Mosher had been bribed to commit perjury on Mazurek’s behalf and that no evidence was adduced in support of this accusation. Specifically, Mazurek points to Mosher’s cross-examination testimony that Mazurek’s attorney had met with Mosher about a week before he testified, and that Crossley’s attorney had come to his home a few days later. The following colloquy then occurred:

“Q. And I remember, and correct me if I’m wrong, you had a chest of drawers and you had a bible sitting on that chest of drawers, didn’t you?
A. Oh, yes.
Q. And you had a picture of our Lord on the wall.
A. Yes.
Q. And I asked you if somebody came along, and I’ll just use an example, and offered you $1,000 to say there was mortar on a ramp on a given day eight years ago, and you told me, ‘I’m a Christian’—
A. I am.
Q. —Tf I didn’t see it, I wouldn’t say it.’
A. Right.
Q. You told me that, didn’t you?
A. Yes.
Q. And now you are sitting here telling us you remember seeing mortar on a ramp on October 9,1980, is that right?
A. There was spillage, yes.
[After asking more questions about whether the spillage was present on the ramp all day, to which Mosher replied in the affirmative, Crossley’s counsel asked:]
Q. And didn’t you tell me that you didn’t see, you didn’t have any recollection of the conditions on a certain ramp on a 57-story building.?
A. No, I didn’t tell you.”

Crossley first responds, relying upon Friedland v. Allis Chalmers Co. (1987), 159 Ill. App. 3d 1, that Mazurek waived review of this issue by failing to make a timely objection to the questions, and that he also waived review of the issue by failing to respond to the questions with a motion for mistrial.

After the colloquy set forth above, Mazurek objected to the “foundational aspects of this cross-examination.” A sidebar with the judge resulted, during which the parties and the judge discussed this objection, as well as Mazurek’s further objection to what “he [Crossley’s counsel] has said in front of the jury ***, the Christianity, the $1,000. I don’t know what all that means and I don’t know what impact that has on the jury.” The judge overruled the objections, stating his “hope that the jury hasn’t gotten an erroneous impression here.”

We hold that Mazurek properly preserved this issue for review. Although his objection to the allegedly prejudicial questions was not made immediately subsequent to their having been asked, Friedland does not require such spontaneity. In that case, the appellant was held to have waived review of issues regarding allegedly improper statements when he failed to object during the closing argument in which they occurred. (159 Ill. App. 3d at 5-6, 9.) In fact, that court held:

“[T]he rule generally adopted is that such assignments of error based on alleged prejudicial conduct of opposing counsel will not be considered on appeal unless objection to the alleged prejudicial argument has been made in the trial court, a ruling of the court obtained and the ruling preserved.” (159 Ill. App. 3d at 9.)

Mazurek followed the foregoing procedure. In addition, during arguments on Mazurek’s motion to disqualify Crossley’s counsel from continuing in the case so that he could be questioned as a witness about the alleged discussion with Mosher, Crossley admitted that “counsel objected at the appropriate time.” Finally, the failure to respond to impropriety with a motion for a mistrial does not waive the right to a new trial on that issue. Bisset v. Village of Lemont (1983), 119 Ill. App. 3d 863, 866-67.

Even if the issue was not waived, Crossley maintains, the questioning was simply an attempt to use “that particular scenario as an example of the witness’ responsibilities to tell the truth.” In oral argument on appeal, however, Crossley admitted that its conduct was improper. It is impermissible, without a reasonable basis, to accuse a party of suborning perjury. Thomas v. Dalpos (1975), 26 Ill. App. 3d 877, 883.

Next, Mazurek complains that there was prejudicial error in Crossley’s failure to prove that Mosher had made a statement prior to and inconsistent with his testimony at trial. At the conclusion of the colloquy described above, Crossley’s counsel asked:

“Q. And didn’t you tell me that you didn’t see, you didn’t have any recollection of the conditions on a certain ramp on a 57-story building?
A. No, I didn’t tell you.
MR. HEALY [Mazurek’s counsel]: Your Honor, I’m going to object to the foundational aspects of this cross-examination.
MR. MILLER [Crossley’s counsel]: Your Honor, I took a statement from him. I heard it. I’m entitled to challenge him on it.”

Crossley first responds that by objecting to the questioning on the ground of lack of foundation, Mazurek waived review of the issue of its failure to produce the allegedly impeaching statement. We note, however, that during the sidebar following his objection, Mazurek requested the statement allegedly taken from Mosher; Crossley’s waiver argument is therefore without merit.

Crossley then argues that even if the issue has not been waived, and even if its counsel’s statement was in error, the trial judge cured any error by telling the jury:

“THE COURT: Ladies and gentlemen, just to clear this up a little bit, anything that Mr. Miller may have said in questioning, in examining this witness which might have been construed as testimony from Mr. Miller should be disregarded by you, ladies and gentlemen. The lawyers, of course, do not testify in our cases.”

As noted, Crossley does not quarrel with the charge that it acted improperly in arguing that a witness had made a prior inconsistent statement without producing evidence of the existence of that statement. (See Charpentier v. City of Chicago (1986), 150 Ill. App. 3d 988, 997-98; Bradford v. City of Chicago (1985), 132 Ill. App. 3d 317, 323-24.) Instead, it maintains that Mazurek was not prejudiced by the impropriety. But we fail to note how the jury, despite the trial court’s admonition, could remain unaffected by Crossley’s attempt to show that Mosher’s testimony was inconsistent with his prior statements to Crossley’s counsel. Mosher’s credibility could accordingly have been severely impaired, and Mazurek’s case correspondingly prejudiced. Courts have found such error to be reversible when it occurs in combination with other prejudicial errors:

“Plaintiff is entitled to a fair trial, free from prejudicial conduct of counsel, who undertakes to supply facts or make inferences not based upon evidence in the record. [Citations.] Nor do we believe that the prejudice was cured by the trial court’s sustaining of objections to defense counsel’s testimonial interrogation.” (Charpentier, 150 Ill. App. 3d at 998.)

In Charpentier, a witness was asked by defense counsel during cross-examination whether defense counsel had “ ‘asked to talk to you about this accident [allegedly resulting from the negligent maintenance of a street], and you told me that you wouldn’t talk to me because you were committed to the other side.’ ” (150 Ill. App. 3d at 997.) The witness denied the statement, and it was never produced. In addition, in response to the witness’ statement that he had talked to the defendant’s attorney on a particular day, the attorney stated, “ T don’t remember ***, sir, talking to you at all.’ ” (150 Ill. App. 3d at 998.) As in the instant case, the attorney’s conduct was held to have prejudiced the appellant’s right to a fair trial.

Next, Mazurek argues that Crossley deliberately misstated evidence during its closing argument, in violation of an order by the trial court. He notes that the trial judge “instructed [Crossley] not to attempt to confuse the jury that the plaintiff signed or is responsible for the document [an accident report completed by John O’Hara, shortly after being informed of Mazurek’s accident].” During closing argument, however, Crossley stated that the report, which failed to mention that mortar was what caused Mazurek to slip, was filled out by Mazurek, and that if he had “slipped on some mortar and went ramming into a wall *** he would have written something down, but unfortunately it’s blank.” The court overruled Mazurek’s objection to Crossley’s statement. Crossley responds that the misstatement had only minimal effect, as it was only trying to convey that if Mazurek had slipped on mortar, he would so have notified O’Hara, and that when Mazurek objected by stating: “Your Honor, I’m going to object. That document was not prepared by this plaintiff, counsel knows that,” any prejudice was mitigated. Finally, Crossley points out that the jury had access to the document in question.

“[I]t is improper in closing argument to make reference to matters not in evidence or to comment upon evidence which has been excluded or stricken. *** ‘[I]t is error sufficient to reverse a judgment to permit counsel to state, against objection, matter not in evidence and pertinent to the issue or to assume arguendo facts to be proven when they are not.’ ” (Anderson v. Universal Delta (1967), 90 Ill. App. 2d 105, 111, quoting Mattice v. Klawans (1924), 312 Ill. 299, 309.) In light of Crossley’s argument at trial that “the accident report that was filled out by Mr. Mazurek” failed to mention that mortar was the substance on which he slipped, its argument on appeal that it was trying to convey something wholly innocent cannot be taken seriously. Moreover, its reliance upon Cahill v. Boury (1986), 144 Ill. App. 3d 413, 416, is off the mark, as there was no evidence in that case that the arguing attorney knew that he was misstating facts, and the opposing counsel’s objection was sustained; in the instant case, Crossley directly violated the trial court’s instruction “not to attempt to confuse the jury that the plaintiff signed or is responsible for the document.” Moreover, the trial court in the instant case overruled Mazurek’s objection to the argument, thus compounding its effect.

Accordingly, in light of the serious nature of Crossley’s improprieties, and of the closeness of the evidence in the instant case, we hold that the errors could reasonably have affected the outcome of the trial; accordingly, Mazurek is entitled to a reversal of the judgment and a remand for a new trial.

Mazurek raises other errors, including: (1) Crossley’s intentional failure to prove a theory which it argued in the course of its opening statement as to how Mazurek’s knee was injured; (2) Crossley’s allegedly “forcing” Mazurek to object to, and thus to make it appear that he had something to hide concerning, the introduction of a hospital record dictated by Dr. Kini, despite having been told by the trial court not to introduce the document without authority as to its admissibility under an exception to the hearsay rule; (3) Crossley’s alleged violation of an order in limine that it “not mention, nor attempt to convey to the jury in any manner, *** [wjhether Plaintiff had any injuries or claims prior or subsequent to the occurrence of October 9, 1980, which involved a different part of the body”; (4) whether the trial court erred in admitting Kini’s testimony despite an alleged ex parte communication between him and Crossley’s attorney; (5) whether Crossley misstated jury instructions during closing argument; (6) whether Crossley’s attorney made improper references during closing argument to his personal opinions and feelings; and (7) whether Crossley’s counsel improperly read to the jury from unproven transcripts, inaccurately quoted those transcripts and improperly copied those inaccurate quotes on notepads in the presence of the jury. Because Mazurek waived review of some of these issues by his failure to preserve them on appeal, and because we believe that the remaining claims of error did not affect the fairness of Mazurek’s trial, we do not deem it necessary, in light of our holding that the errors we have discussed above merit a new trial, to address them in the instant case. This is not to say, however, that we in any manner warrant the propriety of these incidents if they are reenacted at retrial.

In its cross-appeal, Turner claims that the agreement between it and Mazurek bound them by the amount awarded Mazurek at the original trial regardless of Mazurek’s success on appeal. Turner further argues that the term “any verdict” in the sentence, “Turner *** agrees to pay as additional consideration the amount by which any verdict herein, exceeds $200,000 up to the amount of $400,000.00,” is ambiguous, as it could refer to “any verdict” rendered at the original trial or “any verdict” rendered upon any retrial. Turner goes on to contend that because Mazurek’s counsel drafted the agreement, the ambiguity should be construed against Mazurek. Mazurek responds that the term “any verdict” is not ambiguous, and that the agreement clearly intended to provide him with a minimum award and to provide Turner with a maximum level of liability; and, further, the agreement does not show an intent to deprive either party of the right to appeal.

“A contract is ambiguous only if the language used is reasonably or fairly susceptible to having more than one meaning, but it is not ambiguous if a court can discover its meaning simply through knowledge of those facts which give it meaning as gleaned from the general language of the contract.” (Gardner v. Padro (1987), 164 Ill. App. 3d 449, 453.)

Standing alone, the term “any verdict herein” would leave one to wonder whether the verdict during the first trial or the verdict after any retrial is to be determinative of Turner’s liability; however, the remainder of the contract resolves the dilemma. The sentence, “Payment herein is non-contingent and will not be [ajffected by Appeal of any party” has no meaning if Mazurek’s construction of the document prevails.

Under the agreement, Turner promises to pay Mazurek $200,000; if after the retrial resulting from this appeal, Turner is found liable to Mazurek for more than $200,000, it would have to pay, by Mazurek’s own admission, up to $200,000 more than it already owes. Therefore, its payment would be “[a]ffected by Appeal of [a] party.” On the other hand, if on retrial Turner is found liable for $200,000 or less, it would not be required to pay any more than the $200,000 already owed; thus, a retrial against Turner with such a result would be fruitless. Accordingly, we hold that the trial court erred in denying Turner’s motion to dismiss, and its judgment is reversed.

Reversed and remanded.

DiVITO and McCORMICK, JJ., concur.

       Although Judge McCormick did not participate in the oral argument had in this case, he has read the briefs, audited the tape made at oral argument, and has otherwise participated in the decision-making process.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID SHERROD et al., Defendants-Appellants.
    First District (2nd Division)
    Nos. 1—88—1535, 1—88—1536 cons.
    Opinion filed September 24, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Carol Howard, Assistant Public Defender, of counsel), for appellants.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Maureen P. Kelly, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE SCARIANO

delivered the opinion of the court:

David Sherrod and Burma Truman (collectively, defendants) appeal from their convictions by a jury of kidnaping, criminal sexual assault (by the use or threat of force) and aggravated criminal sexual assault against D.M. They claim that the acts which constituted the kidnaping were incidental to those which constituted the criminal sexual assault and that there was insufficient evidence to support either their criminal sexual assault or their aggravated criminal sexual assault convictions. They seek reversal of all their convictions, reversal with a remand for a new trial or vacation of the kidnaping and aggravated criminal sexual assault convictions with a remand for resentencing on the criminal sexual assault convictions.

D.M. testified that she had three 12-ounce beers while at her sister’s home during the evening of May 24, 1987. At about 12:30 a.m., she was at the Williams Inn, in Chicago, where she had “[a] couple of malt liquors.” She conversed with Larry Lane, whom she had known for about 12 years, after which Lane went outside to his car, which was parked in front of the Inn. She noticed Lane speaking with two men who were inside his car, and who were still there when she left the Inn and began to walk the five blocks to her home.

As D.M. walked past Lane’s car, the two men exited it. Although she did not know their names, she recognized them, having seen them in her neighborhood several times. She identified them at trial as Sherrod and Truman. Defendants spoke to her in a friendly tone and she replied in a like manner as she continued walking home. Defendants then began walking with her, and she spoke with Sherrod about his cousin, who used to date her sister.

After walking a few blocks, Truman asked D.M. whether she would “like to give him some sex,” and she replied, “No.” Defendants followed this with pushing D.M. “[a]way from [her] house[,]” saying, “[S]hut up bitch and come on,” and when D.M. tried to scream, Sherrod struck her.

Defendants next pushed D.M. into an alley and over to a garage with a door that was halfway open. Sherrod then knocked her down and covered her mouth. Defendants took her inside the garage, and, while Truman held her arms down, Sherrod pulled her pants down, hitting her in the mouth when she screamed. While Truman held her down, Sherrod forced her to have intercourse and threatened to kill her if she didn’t “shut up.” The two men then exchanged places, Sherrod holding D.M. down while Truman forced her to have sex. When she screamed, Truman hit her in the face. Defendants then put their pants on, and Sherrod suggested to Truman that she be killed. Instead, defendants left, after which D.M. put her clothes back on, walked home and called the police. Her “face was hurting and swollen” and her “vagina was hurting.”

Niluardo Cay, a doctor at St. Bernard’s Hospital, treated D.M. on the morning of May 25. She told him that she had been sexually assaulted. She was alert and responsive; Cay could not recall whether she appeared to have been crying.

Cay’s examination revealed that D.M.’s breath smelled of alcohol, that she had abrasions in her upper mouth, that “[s]he complained of a slight discomfort in the lower abdominal area,” that a pelvic examination revealed “abrasions in the perineal area,” which is “the external area between the rectum and the vaginal area outside of the labium major” and that she had a “whitish vaginal discharge.” Cay stated that both the discharge and the abrasions were consistent with a sexual assault.

On cross-examination, Cay stated that D.M.’s blood alcohol level was .255%. He could not recall whether her cheeks were swollen or bruised, or whether she had bruises elsewhere. She had no abrasions inside her vaginal area. Additionally, the abrasions in the perineal area were consistent with “severe scratching” or “rough sex.” Finally, Cay testified that the “whitish discharge” was also consistent with “[n]ormal vaginal discharge.”

Earl Davis, a Chicago police officer, met with D.M. at about 4:30 a.m. on May 25. She told him that two men followed her, that they dragged “her into a garage a couple of blocks away, hit her, threatened her, forced her to have sexual intercourse with them, left her.” She also told him that she knew her two assailants “from the neighborhood.” Davis noted that D.M. “was crying. She had a bruise on her lip. She had debris on her clothing and in her hair. She was really very upset.” When he and D.M. toured the crime scene, he recovered from the garage a shoe and hat, which D.M. identified as hers. After the search, he and D.M. went to the Williams Inn, where they found Lane. Lane denied knowing the defendants’ names.

On cross-examination, Davis testified that he did not smell alcohol on D.M.’s breath and that she initially denied having had any alcohol. Later, however, she admitted to him that “[s]he might have had one [beer].” Although Davis’ police report did not show that D.M. provided him with a description of the complexions of her assailants, and listed the hair color, eye color and other marks on their bodies as “[u]nknown,” D.M. did tell Davis that her assailants were black males, and she told him their approximate ages. Davis also testified that she had a small cut on her lip, that her face was swollen and that he had to “guide her into the [police] car.”

Lawrence Tuider, a Chicago police officer, investigated the assault on D.M. and interviewed her on May 26, 1987. He noted that she had a split lip, that she was emotionally upset and that she said she had some loose teeth. He showed her an array of five photos, from which she identified as one of her assailants a photo of Sherrod. On May 31, 1987, another photo array was shown to D.M., from which she picked out a photo of Truman. When Tuider asked whether she had the panties she wore on the night of the assault, to be used as evidence, she responded that she had destroyed them.

Thomas Byron, a Chicago police officer, testified that on July 11, 1987, D.M. viewed a police lineup and identified Truman as one of her assailants.

Neither defendant put on a defense. The parties stipulated, however, that during a preliminary hearing in the case against Truman on July 13, 1987, D.M. testified that when she arrived at the garage, Sherrod hit her and forced her to have sex. While he did so, Truman stood and waited, and kicked her “a couple of times.” Truman then threw her down, hit and choked her, told her to be quiet and forced her to have sex.

After the jury convicted defendants, they were each given sentences of seven years in the custody of the Illinois Department of Corrections for kidnaping, 14 years for criminal sexual assault, and 16 years for aggravated criminal sexual assault, to be served concurrently.

Defendants argue that their kidnaping convictions should be overturned because there was insufficient evidence that their detention of D.M. was for any other purpose than that of accomplishing the sexual assault, that it was inherent in the assault, and that it did not create any danger to her independent of the assault. The State responds that defendants waived review of this issue by their failure to raise it at trial and in their post-trial motions.

In People v. Jackson (1990), 203 Ill. App. 3d 1, 10, the court held that the defendant had waived review of whether “the unlawful restraint conviction should be vacated because it arose from the same physical act as the aggravated criminal sexual assault conviction” on the ground that he had failed to raise the issue in his post-trial motion, where the “alleged error neither affected defendant’s substantial rights nor denied him a fair trial.” (See also People v. Nevitt (1990), 135 Ill. 2d 423, 448.) In People v. Alexander (1991), 212 Ill. App. 3d 1091, 1103, however, the court held that an error which was not properly preserved would nevertheless be reviewed under Supreme Court Rule 615(a) (87 Ill. 2d R. 615(a)) as a “[pjlain error[ ] or defectf ] affecting substantial rights” when “the error reasonably could have affected the verdict or if it would have resulted in a failure to afford the defendant due process of law.” Since defendants could not have been convicted of both kidnaping and criminal sexual assault if their claim of error is valid, we deem it necessary to review this issue.

The State argues that the kidnaping convictions should stand because the defendants’ asportation of D.M. was carried out separately from the sexual assault, required proof of different elemental facts and caused an independent danger to her.

The kidnaping convictions were based upon sections 10—1(a)(1) and (a)(2) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1985, ch. 38, pars. 10—1(a)(1), (a)(2)):

“Kidnaping occurs when a person knowingly: (1) And secretly confines another against his will, or (2) By force or threat of imminent force carries another from one place to another with intent secretly to confíne him against his will ***.”

The criminal sexual assault convictions were based upon section 12—13(a)(1) of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 12—13(a)(1)):

“The accused commits criminal sexual assault if he or she:
(1) commits an act of sexual penetration by the use of force or threat offeree***.”

In People v. Eyler (1989), 133 Ill. 2d 173, 199-200, in discussing the “Levy-Lombardi doctrine” (see People v. Levy (1965), 15 N.Y.2d 159, 204 N.E.2d 842, 256 N.Y.S.2d 793; People v. Lombardi (1967), 20 N.Y.2d 266, 229 N.E.2d 206, 282 N.Y.S.2d 519), the court held that “ ‘an aggravated kidnapping conviction should not be sustained where the asportation or confinement may constitute only a technical compliance with the statutory definition but is, in reality, incidental to another offense’ ” (kidnaping held not incidental to murder) (quoting People v. Enoch (1988), 122 Ill. 2d 176, 197).

Defendants cite People v. Smith (1980), 91 Ill. App. 3d 523, and People v. Young (1983), 115 Ill. App. 3d 455, in support of their claim that even though the multiple convictions in the instant case were not “carved from the same physical act” (People v. King (1977), 66 Ill. 2d 551, 566), their act of pushing D.M. away from the course she was pursuing to her house, into an alley and inside a garage could not support a kidnaping conviction along with a criminal sexual assault conviction. In Smith, the court enunciated a four-part test to determine whether an act constitutes kidnaping:

“ ‘(1) the duration of the detention or asportation; (2) whether the detention or asportation occurred during the commission of a separate offense; (3) whether the detention or asportation which occurred is inherent in the separate offense; and (4) whether the asportation or detention created a significant danger to the victim independent of that posed by the separate offense.’ ” (Smith, 91 Ill. App. 3d at 529, quoting Government of Virgin Islands v. Berry (3d Cir. 1979), 604 F.2d 221, 227 (following Virgin Islands law).)

The defendants in Smith were convicted of both “robbery of an automobile” and aggravated kidnaping after forcing themselves into the victim’s car, threatening him to keep quiet and telling him that they wanted the car to escape from the authorities after a bank robbery. They drove off with the victim, despite his requests to be released, but soon let him out of the car and drove away. 91 Ill. App. 3d at 525.

The court noted that “[t]he victim was driven for a short distance — approximately 20 minutes from where he first encountered defendants. During that time, defendants took control of his car and personal property while threatening the use of force,” and held that the defendants could not be convicted of aggravated kidnaping because:

“Where it is determined that the asportation was only for a short period of time, occurred during the commission of a separate offense, and offered no significant danger to the victim independent of that posed by the felony [of robbery], an aggravated kidnapping charge should not rest.” 91 Ill. App. 3d at 529.

In Young, an aggravated kidnaping conviction was based on “defendant’s act of grabbing and throwing the complainant against the wall of [a] shed immediately prior to the rape.” The complainant had voluntarily gone inside the shed with the defendant. (Young, 115 Ill. App. 3d at 469.) The court reversed the aggravated kidnaping conviction, holding:

“The duration of the detention was only for the period of time necessary to accomplish the rape and, in fact, marked the beginning of the struggle culminating in the rape. It is also clear that the act relied upon was inherent in the rape itself, since at some point in time complainant had to be restrained in some manner in order to accomplish the rape. Finally, it cannot be said that this overt act created any significant danger to the victim independent of that posed by the separate offense of rape. Under these circumstances, it is our opinion that although this act was a separate overt act under King, [66 Ill. 2d at 566,] it was not an act which could support the offense of kidnapping.” (115 Ill. App. 3d at 470.)

Applying the Smith factors to the case at bar, we hold that the defendants’ kidnaping convictions were proper. In People v. Casiano (1991), 212 Ill. App. 3d 680, 687-88, the court noted that an asportation lasting approximately IV2 blocks, which allowed a criminal sexual assault to be carried out more easily in the defendant’s apartment and with less chance of detection, was sufficiently lengthy to satisfy the first part of the Smith test. Similarly, in the case at bar, D.M. was forced off the street, into an alley and then into a garage; “[wjhether an asportation is sufficient to constitute a kidnapping depends on the particular facts and circumstances of each case” (Casiano, 212 Ill. App. 3d at 687), and here, the asportation satisfied this first factor.

The remaining parts of the Smith test are just as clearly met. D.M.’s asportation took place before, not during, the sexual assault, thus distinguishing it from the circumstances in Smith, where the victim was detained and moved while his car was stolen (Smith, 91 Ill. App. 3d at 529), and from those in Young, in which the victim was not moved and was detained only while the rape was committed. (Young, 115 Ill. App. 3d at 470.) Next, the asportation from the street to the garage was certainly not inherent in the sexual assault. (Eyler, 133 Ill. 2d at 200 (confinement necessary to brutalize victim not incidental to victim’s murder); Casiano, 212 Ill. App. 3d at 688; see also People v. Gully (1986), 151 Ill. App. 3d 795, 800 (defendant need not have moved victim to a secluded area in order to sexually assault her).) Finally, forcing an unwilling D.M. into the alley and into the garage posed a significant danger to her separate from that posed by the sexual assault. (Casiano, 212 Ill. App. 3d at 688; Gully, 151 Ill. App. 3d at 800.) Therefore, since defendants were properly convicted of kidnaping and were also properly convicted of aggravated criminal sexual assault (during the course of the commission of kidnaping) (section 12—14(a)(4) of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 12— 14(a)(4))), there is no need to determine, as they have requested, whether there was sufficient evidence to convict them of aggravated criminal sexual assault predicated upon other factors (causing bodily harm; threatening or endangering life (sections 12—14(a)(2), (a)(3) of the Code (Ill. Rev. Stat. 1985, ch. 38, pars. 12—14(a)(2), (a)(3))).

Next, defendants claim that there was insufficient evidence to support their criminal sexual assault convictions. They contend that D.M. changed her version of the events too many times to be credible, that her testimony during Truman’s preliminary hearing was inconsistent with her trial testimony, that her denial to Officer Davis that she had been drinking was proven false by her high blood-alcohol level, that Doctor Cay failed to confirm some of her alleged injuries and that the State failed to analyze a Vitullo kit, which could have helped determine whether she had had physical contact with the defendants.

The State responds that defendants cannot rely on appeal on that portion of the testimony adduced during Truman’s preliminary hearing which was not stipulated to at trial, that D.M.’s credibility was properly a matter for the jury to decide and that its determination of guilt was reasonable.

The State correctly asserts that statements made during a preliminary hearing, even if part of the record on appeal, may not be considered if they were never made part of the trial record. (People v. Owens (1977), 46 Ill. App. 3d 978, 988.) Accordingly, this court, viewing the evidence adduced at trial in the light most favorable to the prosecution, including that portion of the preliminary hearing testimony which was stipulated to at trial, in order to determine whether any “ ‘rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt’ ” (People v. Phillips (1989), 127 Ill. 2d 499, 510, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789), holds that defendants’ criminal sexual assault convictions were properly supported by the evidence.

Defendants point to D.M.’s statements during that portion of her preliminary hearing testimony introduced at trial in which she alleged that Truman had kicked and choked her, an allegation she did not repeat at trial. In addition, D.M. testified at trial that Sherrod threatened to kill her, a charge she did not make during her preliminary hearing testimony. Defendants overlook, however, that these claimed inconsistencies, along with D.M.’s allegedly false statement to Officer Davis that she had not been drinking or had had very little to drink, were properly before the jury for it to judge accordingly. Moreover, there were no inconsistencies in D.M.’s testimony about the rape itself, in addition to which there was ample evidence of injuries resulting from the attack. Accordingly, we hold that the jury most assuredly did not act unreasonably in finding D.M.’s testimony to be credible and in convicting defendants of criminal sexual assault.

Finally, pursuant to People v. King (1977), 66 Ill. 2d 551, 566, we reverse defendants’ convictions for criminal sexual assault, which were predicated upon the same acts as those for which they were convicted of aggravated criminal sexual assault.

■ For all of the foregoing reasons, the defendants’ convictions for criminal sexual assault and the sentences thereon are vacated, and the remaining convictions are affirmed.

Affirmed in part, reversed in part.

HARTMAN and DiVITO, JJ., concur.

      Although Judge DiVito did not participate in the oral argument had in this case, he has read the briefs and has otherwise participated in the decision-making process.


author: JUSTICE WHITE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LOUIS BULLINER, Defendant-Appellant.
    First District (3rd Division)
    No. 1—87—0366
    Opinion filed September 25, 1991.
    Theodore Gottfried and David M. Goldwin, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Paul Gliatta, and Joseph J. Higgins, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WHITE

delivered the opinion of the court:

Defendant, Louis Bulliner, appeals from his conviction and sentence for attempted murder and aggravated battery. Defendant argues that he was denied a fair trial, that the jury was improperly instructed, and that the statute under which he was convicted is unconstitutional.

On the morning of June 5, 1985, defendant was arrested in his home in an apartment hotel located at 6434 South Cottage Grove in Chicago. Defendant was charged with beating and shooting Joseph Clay, another resident of the hotel.

Defendant was tried before a jury. During the trial, Lawrence Ogbo was called as a witness on behalf of the State. Ogbo testified that he was the manager of the hotel, that defendant and Clay were the only residents, and that both lived on the second floor of the building. In June 1985, because of renovations, the electricity in the hotel was turned off and defendant and Clay were using extension cords to obtain electricity from a store on the ground floor of the building. Ogbo testified that during the first week of June, defendant told him that Clay had taken defendant’s extension cord, leaving defendant without electricity. Ogbo told defendant that he would talk to Clay, and defendant responded that if Clay did it again, defendant “might do something to him.”

Ogbo further testified that in the early morning hours of June 5, 1985, he received a telephone call from defendant in which defendant stated that he had injured Clay. Ogbo stated that defendant asked Ogbo to call the police and to come and take Clay to the hospital. Ogbo also stated that defendant told him that Clay had hit him first.

Ogbo did not call the police, and he did not go to the hotel until the following morning. When he arrived, he was met by the police, who asked him to show them where defendant lived. Ogbo took the officers to defendant’s apartment, where defendant was arrested and taken into custody.

Joseph Clay testified that in 1985, he lived at 6434 South Cottage Grove and worked as a night watchman for the building. Clay testified that the lights in the building were turned off in May 1985 and that he was given permission from Mr. Nisei in the submarine shop next door to hook up an extension cord from the shop to his apartment. Clay stated that shortly after he hooked up the extension cord, he noticed that defendant also had plugged into the cord. Clay stated that, because Nisei had told him not to allow anyone else to plug into the cord, he asked defendant to remove his cord. Clay testified that when defendant refused to do so, he contacted Ogbo because he did not want to get into an argument with defendant.

Clay further testified that on the evening of June 4, 1985, he had dinner at his nephew’s house and returned to the hotel at approximately 10:30 p.m. Clay testified that he had entered the building and was walking toward the stairway, when he was attacked by defendant and another individual. According to Clay the two were armed with baseball bats and they repeatedly struck him on the head with the bats. Clay stated that he picked up a snow shovel and started swinging it at his assailants. He then ran up to the second floor and attempted to get into his apartment.

Clay stated that as he was attempting to unlock his door, defendant pointed a gun at him and began shooting. Clay then ran across the hall and entered another apartment, where he placed a table in front of the door to prevent the others from entering. Clay testified that as he was placing the table in front of the door, shots were fired through the door striking him in the knee cap, the groin, and the right arm.

Clay remained in the vacant apartment until the following morning, when he heard his nephew knocking on the door of his own apartment across the hall. Clay’s nephew contacted the police, and Clay was taken by ambulance to the University of Chicago Hospital.

Defendant testified in his own behalf. He stated that because the electricity had been turned off, he used an extension cord to obtain power from a secondhand store next door. Defendant testified that two days before his arrest, he returned to the building and discovered that his extension cords were missing. Defendant stated that he talked to Ogbo about the missing cords and that Ogbo agreed to speak to Clay. Defendant denied making any threats against Clay in his conversation with Ogbo.

Defendant testified that on June 4, 1985, he had replaced the cords and was watching television in his apartment when he heard Clay shouting in the hallway. Defendant stated that Clay kicked his door and called to him to come out of the apartment. Defendant further stated that Clay went away after defendant threatened to call the police. Approximately 15 minutes later, the power went off in defendant’s apartment. Defendant found a flashlight, armed himself with a gun and a baseball bat, and went to see what had happened. Defendant stated that when he reached the top of the stairs, he saw that the light in the hall was still on and that his extension cord had been unplugged.

Defendant further testified that as he was plugging the cord back in, Clay sprayed him in the face with mace and hit him across the back and shoulders with a shovel. Defendant testified that he hit Clay with the baseball bat and that the two of them fought from the first floor, up the stairs to the second floor, and into a vacant apartment. Defendant stated that as he attempted to back out of the apartment, he fired several shots at Clay, who was swinging the shovel at him and threatening to kill him. Defendant further stated that he shot Clay because he was afraid for his life. Following the shooting, defendant returned to his apartment, where he telephoned Ogbo, told him about the fight, and asked him to call the police.

The jury found defendant guilty of attempted murder and aggravated battery and defendant was sentenced to six years in prison. This appeal followed.

Defendant argues that his conviction must be reversed because the trial court erred in refusing to permit him to testify concerning the victim’s violent propensities, because comments by the assistant State’s Attorney on defendant’s post-arrest silence violated his due process rights, and because the attempted murder statute and jury instructions are unconstitutional.

Defendant’s claim that his due process rights were violated is based on questions and comments made by the assistant State’s Attorney during cross-examination and closing arguments. During cross-examination, the assistant State’s Attorney questioned defendant about the injuries he claimed he suffered in the fight with Clay. After defendant stated that he had been struck across the back and shoulder, the following exchange took place:

“Q. Did you tell that to the police?
A. They didn’t ask me.
Q. You didn’t relate that to them, right?
A. They didn’t ask me.
Q. You didn’t relate that to them, right?
A. They didn’t ask me.
Q. Answer the question.
A. No.”

Later, during closing arguments, the assistant State’s Attorney stated:

“I submit to you, ladies and gentlemen, there was no fight between the two of them. Joe Clay was fighting for his life. That’s the only fight that was going on down there, and if the Defendant had any injuries on his body he would have told the police about it.”

No objection was made to the questions or the closing arguments.

On appeal, defendant argues that the questions and comments quoted above violated his right to remain silent as guaranteed by the fifth amendment of the United States Constitution (see Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602), since his post-arrest silence was used against him to undermine his credibility. We agree.

In Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240, the United States Supreme Court stated that while it was true that the Miranda warnings contained no express assurance that silence carried no penalty, such an assurance was implicit in the warnings. The Court added:

“In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” 426 U.S. at 618, 49 L. Ed. 2d at 422, 96 S. Ct. at 2245.

In People v. Monaghan (1976), 40 Ill. App. 3d 322, 325 N.E.2d 295, this court relied on the decision in Doyle in reversing a conviction where the assistant State’s Attorney was allowed to impeach a defendant’s exculpatory trial testimony with his failure to inform the police of his explanation following his arrest. Similarly, in People v. Adams (1981), 102 Ill. App. 3d 1129, 430 N.E.2d 267, the appellate court ruled that it was reversible error for the prosecutor to comment on a defendant’s post-arrest silence.

In Adams, the defendant was arrested and charged with murdering her boyfriend. Defendant made no statement following her arrest, but the next morning she stated that she had acted in self-defense. At trial, the prosecutor questioned defendant about the first time she told police that she acted in self-defense and she admitted that she had not made this claim until 10 hours after her arrest. In closing arguments, the prosecutor pointed out that she had not claimed self-defense until several hours after her arrest and argued that, therefore, her testimony was not true.

In reversing defendant’s conviction, the appellate court stated that the prosecutor’s questions and comments suggested to the jury that if defendant were innocent and acting in self-defense she would have so informed the police immediately after her arrest. The court found that the prosecutor’s actions were improper and in violation of the Supreme Court’s decision in Doyle. We believe a similar finding is required in the present case.

Here, as in Adams, defendant claimed he was acting in self-defense. By repeatedly asking defendant whether he had told the police that Clay had struck him and by later commenting that if defendant had been injured he would have told the police, the assistant State’s Attorney suggested that if defendant’s claim that he was acting out of fear for his life was truthful, he would have made a statement to that effect at the time of his arrest. This clearly was a violation of the Doyle doctrine.

In arguing against reversal of defendant’s conviction, the State contends that the issue has been waived because of defendant’s failure to object to the questions and comments or raise them in a post-trial motion. The State further contends that even if the issue was not waived any error was harmless because the evidence of defendant’s guilt was so overwhelming. We disagree.

In Adams, the court rejected the claim that defendant’s failure to object to the improper cross-examination and argument constituted a waiver of the issue. The court concluded that fundamental fairness required that the matter be considered. (102 Ill. App. 3d at 1132.) Also, in its decision in Monaghan, this court found that the prosecutor’s comments on the defendant’s silence amounted to plain error and that plain error affecting substantial rights could be noticed on appeal although not brought to the attention of the trial court. (40 Ill. App. 3d at 326; see also People v. Pegram (1988), 124 Ill. 2d 166, 529 N.E.2d 506.) Accordingly, we find no waiver.

Nor do we find that the assistant State’s Attorney’s questions and comments were harmless error. Contrary to the State’s contentions, the evidence of defendant’s guilt was not overwhelming. There were no witnesses to defendant’s altercation with Clay and, thus, the case turned on whether the jury believed defendant’s version of the facts or Clay’s version. Under these circumstances, the credibility of defendant was a crucial element of the case and the use of an improper means of impeachment cannot be deemed harmless. See People v. Adams, 102 Ill. App. 3d at 1133; People v. Monaghan, 40 Ill. App. 3d at 327.

Because we have decided that defendant’s conviction must be reversed, we need not reach the other arguments raised by defendant in this appeal. We do note that, with regard to defendant’s claims concerning the constitutionality of the attempted murder jury instruction, the use of this instruction recently was upheld in People v. Moore (1990), 204 Ill. App. 3d 694, 562 N.E.2d 215.

As for defendant’s arguments that the attempted murder statute is unconstitutional because it classifies attempted murder as a Class X felony while voluntary manslaughter is classified as a Class 1 felony, we note that in People v. Carrillo (1986), 148 Ill. App. 3d 11, 449 N.E.2d 44, a similar claim was made and rejected concerning the armed violence statute. Accordingly, we find, as the court did in Carrillo, that the statutory scheme in question is correct.

The judgment of the circuit court is reversed, and this cause is remanded for a new trial.

Judgment reversed and cause remanded.

RIZZI and GREIMAN, JJ., concur.

      This opinion was authored prior to Justice White’s retirement.


text:
    GERALD L. HANKE, Plaintiff-Appellant, v. UNION PACIFIC RAILROAD COMPANY, Defendant-Appellee.
    First District (3rd Division)
    No. 1—90—0287
    Opinion filed September 25, 1991.

      Henslee, Monek & Henslee, of Chicago (John J. Naughton and Daniel J. Downes, of counsel), for appellant.
    Ross & Hardies, of Chicago (Robert L. Landess, Raymond H. Groble III, and Charles T. Newland, of counsel), for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

Plaintiff, Gerald Hanke, appeals from the trial court’s order dismissing his breach of contract action on the ground of forum non conveniens. Plaintiff argues that the trial court abused its discretion in finding that dismissal was required under the forum non conveniens doctrine and in finding that his contract action was connected with a Federal Employers’ Liability Act (FELA) claim filed in the United States District Court for the Southern District of Iowa.

Plaintiff, a resident of Council Bluffs, Iowa, was injured in the course of his employment with defendant, the Union Pacific Railroad Company, a Utah corporation with its principal place of business in Omaha, Nebraska. In July 1989 plaintiff filed suit against defendant in the circuit court of Cook County alleging that defendant offered to pay for plaintiff’s vocational rehabilitation and for his reasonable living expenses during rehabilitation. Plaintiff further alleged that after he accepted this offer and submitted an estimate of expenses of $2,445 for training and rehabilitation and $1,500 per month for living expenses, defendant reneged on its offer and refused to make any payments.

After filing its appearance and jury demand, defendant filed a motion to dismiss plaintiff’s complaint pursuant to sections 2—606 and 2—615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, pars. 2—606, 2—615) on the ground that plaintiff had failed to attach a copy of the alleged contract to the complaint. In response, plaintiff filed an amended complaint which was accompanied by letters written by Daniel Downes, plaintiff’s counsel, and Raymond Hasiak, defendant’s in-house counsel. According to plaintiff, these letters established that a contract existed between plaintiff and defendant.

The first letter was dated March 23, 1989, and was sent to Downes in Chicago from Hasiak in Nebraska. In it, Hasiak wrote that defendant was willing to make “work hardening” available to plaintiff at no expense and that defendant was willing to pay reasonable living expenses for plaintiff while he was active in such a program.

In the second letter, dated April 5, 1989, and sent from Downes in Chicago to Hasiak in Nebraska, Downes wrote that plaintiff’s vocational status had been established and that plaintiff was actively engaged in educational activities. The letter further stated that defendant’s offer to pay the reasonable expenses of having plaintiff’s vocational status established was accepted and that defendant’s offer to pay for vocational rehabilitation and living expenses also was accepted. The letter also contained the information that plaintiff’s total training costs would be $2,445 and that his living expenses amounted to $1,500 per month.

After the filing of plaintiff’s amended complaint, defendant filed a motion for judgment on the pleadings, arguing that the letter from Hasiak to Downes was not an offer but a statement of its position and that Downes’ letter to Hasiak could not be considered an acceptance because it did not accept the terms of the alleged offer.

Defendant also filed a motion to dismiss for forum non conveniens. In this motion, defendant pointed out that plaintiff had filed a FELA action against defendant in the United States District Court for the Southern District of Iowa. Defendant claimed that the subject matter of the alleged contract in plaintiff’s Illinois action was the payment of fees for the rehabilitation, vocational training, and living expenses allegedly incurred by plaintiff in attempting to mitigate his damages in the FELA action. Defendant alleged that plaintiff could procure a fair trial in the State courts of Iowa or consolidate this action with his Federal court action.

As further support for dismissal, defendant alleged that there was no connection between plaintiff’s choice of forum and the cause of action or the residence of the parties. Defendant also noted that plaintiff was an Iowa resident at the time of his injury and that plaintiff’s treating doctors and the people involved in plaintiff’s rehabilitation and vocational training all resided in Iowa or Nebraska.

Defendant also alleged that trial in Illinois would impose a burden on the Cook County court system, that Illinois courts had no subpoena power over witnesses from Iowa and Nebraska, and that defendant would incur substantial expense in bringing witnesses and employees to Illinois.

Defendant’s motion for judgment on the pleadings was denied without prejudice. One month later the trial court granted defendant’s motion to dismiss on the ground of forum non conveniens. In entering its order, the trial court stated that it was dismissing the action for the reasons stated by defendant in its motion. The court also stated that the Illinois case was inextricably intertwined with the FELA action pending in Iowa and that it had difficulty finding that there had been the meeting of minds necessary to enter into a contract.

In this appeal, plaintiff contends that the trial court’s dismissal of his action was improper. As support for this contention, plaintiff argues that the only ground articulated by the trial court as a basis for dismissing the action, the inextricable connection with the Iowa action, is not an element of forum non conveniens. Plaintiff further argues that the dismissal was improper because the forum non conveniens factors “preponderate” in his favor. We do not agree.

We first point out that plaintiff’s argument completely disregards the trial court’s statement that it was dismissing the action for the reasons stated by defendant in its motion. In light of this statement, there is no merit to plaintiff’s claim that the sole basis articulated for dismissal was the connection with the Iowa action.

Turning to plaintiff’s argument that the forum non conveniens factors predominate in his favor, we note that a decision to dismiss on this basis lies within the discretion of the trial court and should be reversed only where there is an abuse of that discretion. (Lonergan v. Crucible Steel Co. of America (1967), 37 Ill. 2d 599, 229 N.E.2d 536.) We also note that while a plaintiff’s choice of forum is afforded great deference, that choice is entitled to less consideration when the plaintiff’s home forum is not the one chosen. Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill. 2d 359, 456 N.E.2d 98.

Factors to be considered in disposing of a motion to dismiss on the ground of forum, non conveniens include the capacities of the two courts to provide a fair trial, the relative inconvenience to the parties, and the burden placed upon the taxpayers and residents of the jurisdiction to which the cause of action is transferred. (Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511, 301 N.E.2d 729.) Also considered are ease of access to sources of proof, court congestion, availability of compulsory process for attendance of unwilling witnesses, and the cost of obtaining willing witnesses. Jones v. Searle Laboratories (1982), 93 Ill. 2d 366, 444 N.E.2d 157; Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill. 2d 111, 427 N.E.2d 111.

In the present case, plaintiff was a resident of Iowa and defendant’s principal place of business was in Nebraska. Thus, plaintiff’s choice of Illinois as a forum for this action is entitled to less deference than usually given to a plaintiff’s choice of forum. Further, as defendant argues, all of the people involved in plaintiff’s rehabilitation, potential witnesses on the issue of the reasonableness of plaintiff’s expenses, reside outside of Illinois and would not be subject to compulsory process here. Finally, we point out that the congestion of the Cook County circuit court dockets was noted by the supreme court in Jones v. Searle (93 Ill. 2d at 375) and that here, as in that case, trial in Illinois would require members of this community to perform jury services for a cause in which the State’s interest is minimal. Accordingly, we find no error in the trial court’s dismissal of plaintiff’s action on the basis of forum, non conveniens.

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

Judgment affirmed.

CERDA, P.J., and GREIMAN, J., concur.

      This opinion was authored prior to Justice White’s retirement.