author: JUSTICE DiVITO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL D. SAVICKAS, Defendant-Appellant.
    First District (2nd Division)
    No. 1—90—1484
    Opinion filed May 19,1992.

      Edward R. Vrdolyak, Ltd., of Chicago (William E. Reynolds and Phillip J. Bartolementi, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Linda Woloshin, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DiVITO

delivered the opinion of the court:

Defendant Michael D. Savickas was convicted by a jury of first degree murder (Ill. Rev. Stat. 1985, ch. 38, pars. 9 — l(aXl), (a)(2)) and was sentenced to 28 years’ imprisonment.

On appeal, he contends that (1) he was not proved guilty of murder beyond a reasonable doubt; (2) the jury was improperly instructed as to the State’s burden of proof; (3) comments made by the prosecutor denied him a fair trial; and (4) his right to confrontation was violated by the nonproduction of a subpoenaed defense witness.

On March 31, 1988, Robert Walensky owned and operated the New Gold Coast Inn, a tavern located at 71st and Maplewood in Chicago. At approximately 4 p.m. that day, Daniel Chaplics and James Pecelli, both employees of the City of Chicago Department of Streets and Sanitation, arrived at the tavern. They sat at the bar and had several screwdrivers. At around 4:45 p.m., Kevin Murray and David Stack, employees of the City of Chicago Water Department, arrived at the tavern and also sat at the bar, drinking beer.

At approximately 6 p.m., defendant and Casey Janus, both foremen with the Water Department, entered the tavern and sat at the bar. Murray and Stack each had known defendant for about 12 years; neither Chaplics nor Pecelli knew defendant, but Pecelli was introduced to him later that evening.

After sitting at the bar for a short time, Stack and Janus, who was Stack’s immediate supervisor, began a loud, profane argument that Walensky tried to stop. Janus, who appeared to be drunk, refused to settle down, so Walensky grabbed him by the arm, attempting to escort him out of the tavern. Janus then turned to defendant and said, “Give me the gun. I’m going to shoot this motherfucker.” Shortly thereafter, Walensky was able to push Janus out the front door and return to tending bar.

After a few minutes, defendant began arguing with Stack, asking him why he did not like his boss, Janus. Stack responded that what happened between Janus and him was not defendant’s concern. Defendant then threatened that he could have Stack’s job. Although Murray, Chaplics, Pecelli, and Walensky heard defendant arguing with Stack, they did not hear the entire substance of the argument; Chaplics, however, did hear defendant tell Stack that he could have Stack’s job. Defendant then pulled out his gun and, pointing it at Stack’s stomach, said, “I could blow you away right now.” Stack pushed the gun away and asked defendant what he was doing. Chaplics, who saw defendant pointing the gun at Stack, told Walensky, who then came out from behind the bar and asked defendant to leave.

Defendant responded, “Okay. Fine. No problem.” However, defendant turned to the bar and began arguing again. After Walensky told him to leave again, defendant began verbally abusing Walensky, telling him that he could close down the tavern and that he could “kick the shit” out of him. Walensky told defendant to get out yet another time; several of the other city workers, though, said that they could take care of defendant and asked that Walensky give him a beer. Walensky put a beer bottle down in front of defendant, but pulled it away again when defendant called him a “dirty motherfucker and a jag-off” and threatened, again, to shut down the tavern. Defendant also said that he was a member of the Chicago Outlaws, a motorcycle gang, and told Walensky, “I don’t give a fuck about nothing.” Although defendant wanted his beer back, Walensky refused to serve him and came around the bar and jerked defendant off his bar stool. At that time, defendant’s gun fell to the floor. After defendant picked the gun up, Walensky walked him to the front door and pushed him out of the tavern.

After Walensky walked behind the bar, defendant began banging with the butt of his gun on the front window of the tavern. After banging several times, defendant walked away, but returned seconds later and resumed banging on the window with his gun. Walensky then grabbed a baseball bat which he kept behind the bar and ran out the front door, watching defendant walk south on Maplewood. Stack, Murray, Pecelli, and Chaplics stayed at the bar and did not go outside.

Thomas Vinicky, who occasionally cleaned and stocked the tavern for Walensky, however, got up from his bar stool where he was drinking a beer, telling Pecelli that, “I’m getting the hell out of here.” Prior to leaving the bar through a side door, Vinicky, whom Walensky described as the “most passivistic” person, was not involved in any of the arguments at the bar, nor did he attempt to assist Walensky in expelling Janus or defendant from the bar.

As Walensky stood by the front door of the tavern, he could see defendant just beyond the side door, facing both him and Vinicky, who had exited the tavern through the side door. Vinicky, whose back was turned to Walensky, asked defendant, “What’s the matter? Why are you doing all this?” Defendant, who was a few feet from Vinicky, then pulled out his gun and, as Vinicky was stepping backward, shot him in the chest. Walensky ran back into the bar, yelling that defendant had shot Vinicky and to call an ambulance. No one inside the tavern saw the shooting.

From behind the bar, Walensky grabbed a .32 revolver, and, accompanied by Chaplics, went out the side door to where Vinicky was lying. Walensky, Chaplics, and several other patrons of the tavern went over to Vinicky, who had no weapon in his hands or near him. Defendant then appeared from between two houses in the distance and began to walk towards the people gathered around Vinicky. Defendant still had his gun in his hand and was twirling it on his finger. Pecelli, who was also outside, yelled to Walensky to shoot defendant, but defendant continued to walk towards the tavern. When sirens could be heard, defendant abruptly turned and walked behind the alley of a funeral home.

After defendant went behind the funeral home, Edwin Gonzales, a 16-year-old from the neighborhood who had heard the gunshot and had seen defendant twirling his gun, saw defendant throw something on top of a roof. He also saw defendant try to stick something into the glass doors of the funeral home. As several police officers approached on foot, Gonzales saw defendant walk towards a truck, where he was apprehended by the police. Gonzales then told the police about the object on the roof.

Chicago police officer Harold Gordon was the first officer to arrive at the scene and, after calling an ambulance, took Pecelli with him in his squad car to look for defendant. Not finding him, Gordon let Pecelli out of the car; shortly thereafter, an older woman, who acted as the caretaker of the funeral home, shouted to Gordon that someone was hiding in the home’s parking lot. Gordon conveyed this information by radio, entered the parking lot on foot, and, seeing defendant, ordered him to halt and then placed him under arrest.

Chicago police officer Robert Navigato, upon receiving Gordon’s radio dispatch, entered the parking lot and saw defendant in the custody of Gordon. Navigato was told by Gonzales of the object on the roof and, after climbing to the roof, he recovered a snub-nosed .38 caliber revolver from the gutter. A search of the area also disclosed a spent cartridge and a live round near the passenger side of defendant’s truck and another live round near the funeral home.

Chicago police detective Thomas Ptak, assigned to protect the scene of the crime, spoke with the officers present and examined the bullets found. The bullet found near the truck was a “hollow point,” which would “mushroom” on impact, thereby creating extensive damage. The other bullet, found near the funeral home, was a “.38 Plus P.” That bullet was also capable of inflicting extensive damage because it contained more powder and it had been manually serrated at its top, which would make it open up faster upon impact. According to Ptak, Chicago police officers were prohibited from carrying the Plus P bullets because those high-power bullets cause too much damage. Ptak also examined the gun; he found it to be a “pocket gun”: the gun’s cocking mechanism was shrouded, which made it very concealable and prevented it from getting caught on clothing when pulled out of a pocket.

After Ptak secured the scene, he went to the hospital where Vinicky was taken and learned that Vinicky had died. In the pocket of Vinicky’s pants, Ptak found Vinicky’s keys and a small, closed pocket knife with a 21/2-inch blade. An autopsy disclosed that Vinicky had died from an extra-large bullet wound to the chest, inflicted by a high-power bullet. The autopsy also revealed that Vinicky was two times over the presumptive limit for intoxication.

When Ptak arrived at the police station, two evidence technicians were preparing to perform a gunshot residue test on defendant. In response to defendant’s inquiry about what they were doing, Ptak explained that the evidence technicians were going to perform a test on his hands in order to determine whether he had earlier fired a gun. Defendant then began wiping his hands across his sweaty face and beard. When told that that would interfere with the test, defendant continued to rub his hands across his shirt and pants. Ptak and the two evidence technicians then grabbed defendant’s arms and physically restrained him for the test, the results of which were inconclusive.

While in the interview room of the police station, Ptak advised defendant of his rights. After telling defendant that if he had no money for an attorney, one would be provided free of charge, defendant began laughing. Defendant then said, “Do you know who I am? You guys are lucky my father is in Florida. You all would be in trouble.” According to Ptak, the only time defendant appeared concerned was when the evidence technicians began putting things on the desk.

Several days after the shooting, Walensky met with Robert Cooley, an attorney he had seen at the police station after defendant’s arrest. They met at a restaurant where Walensky offered to change his story if defendant’s father paid him $200,000. Cooley said he would “get back” to him, but never did. A few days later, Walensky testified before the grand jury.

At trial, Walensky admitted that the liquor license for the New Gold Coast Inn was held in someone else’s name because he was not allowed to operate a tavern due to two prior felony convictions; in 1969, he had been convicted of interstate transportation of stolen merchandise and in January 1988, he had been convicted of issuing a bad check.

After stipulations that the gun was found in a damaged condition and that it could not be determined whether the bullet recovered from Vinicky’s body was fired from it, defendant testified in his own behalf.

Defendant had been employed as a foreman for the Water Department for approximately eight years. On March 31, 1988, Holy Thursday, he finished his shift at 4 p.m. and went to his bank to cash a check. Afterwards, he stopped by a friend’s business to wish him a “Happy Easter” and then drove to a restaurant called Mia Pueblo to meet Janus. The two had a few drinks and appetizers before leaving about 45 minutes later.

At approximately 6 p.m., defendant and Janus arrived at the New Gold Coast Inn, where defendant recognized several other city workers. At the time defendant entered the tavern he was carrying an unregistered gun; he explained that he carried the weapon during working hours for protection because of the rough neighborhoods that he had to enter. The bullets for the weapon were given to him by a Chicago police officer friend.

After arrival at the tavern, Janus got into a “heavy” argument with Stack about the last job performance rating that Janus had given Stack. During the argument, Janus turned to defendant and said, “Give me the gun, I’m going to shoot him now”; defendant, however, did not give his gun to Janus, who was drunk. Shortly thereafter, Janus was escorted out of the bar by Walensky.

Defendant then turned to Stack and told him that Janus loved him, that he treated him like family, and stated, “if he didn’t, he could have suspended you three times a week, with the long lunches you take.” Defendant then showed Stack his gun, stating, “Dave, if we all had it in for you, I would have given [the gun] to Casey, when he asked for it. He would have shot you. Nobody shot you, nobody beat you up, nobody harassed you. You’re just being paranoid. Why don’t you sit down, finish your beer. It’s Easter weekend, relax, forget about it.” After that exchange, in which no threats were issued by him, defendant put the gun away.

Thereafter, Walensky began to swear at defendant and told him to leave the bar. Defendant told him that he wanted to finish his beer, but Walensky came around the bar and jerked him off his bar stool. Defendant’s gun fell out of his pocket, but he picked it up and put it back in his pocket. Walensky then told defendant that he had to leave the bar and began swearing at him; defendant swore back at Walensky and “might” have told him that he “wanted to kick his ass.” Walensky then pushed defendant out of the tavern.

Defendant, who wanted to return to finish his beer, tried to reenter the tavern, but the door was locked. He then banged on the window with his hand; he had a large silver ring on his finger which may have made the banging loud. Defendant then walked away, but returned a few seconds later. After banging on the window a second time, defendant walked south on Maplewood, when he heard a voice say, “You’re a jagoff.” Defendant turned around to face Vinicky standing by the tavern’s side door. Defendant could also see Walensky standing by the front door holding a baseball bat. Vinicky, who then said to defendant, “You’re a jagoff and I’m going to waste you,” reached into his jacket, and started to pull out a gun. Defendant panicked, grabbed his gun, and shot Vinicky. Defendant then ran, but returned to the tavern when he realized what he had done. As he neared the tavern, he heard someone yell to shoot him so he ran into the alley. He then emptied his gun and threw it on the roof, thinking that nobody could then shoot him with his own gun. After throwing the gun away, defendant banged on the doors of the funeral home, yelling for someone to call the police.

After defendant was arrested and taken to the police station, he became afraid; he began wiping his hands on his face and clothing because he did not know what the evidence technicians were going to do to him. Defendant did not tell the police that they would be in trouble because of his father, who was a State senator; nor did he ever tell anyone in the bar that evening that he could have their jobs or could close down the tavern.

After defendant’s testimony, several witnesses testified that defendant was a peaceful, nonviolent person.

At the close of the evidence, the jury found defendant guilty of first degree murder; he was subsequently sentenced to 28 years’ imprisonment.

I

Defendant initially contends that he was not proved guilty of first degree murder beyond a reasonable doubt. Specifically, he maintains that he was justified in the use of deadly force in self-defense. In response, the State asserts that defendant was properly found guilty of first degree murder beyond a reasonable doubt.

The Illinois statute on self-defense states:

“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself *** against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself ***.” (Ill. Rev. Stat. 1987, ch. 38, par. 7 — 1.)

Killing in self-defense is justified where (1) force has been threatened against a person; (2) the threatened person is not an aggressor; (3) the danger of harm is imminent; (4) the force threatened is unlawful; and (5) the threatened person must reasonably believe that danger exists, countering it requires force, and the force used was required. People v. Parker (1990), 194 Ill. App. 3d 1048, 1055, 551 N.E.2d 1012.

Here, the only witness, other than defendant, to the shooting was Walensky. Defendant contends that the testimony of Walensky, a convicted felon and an admitted extortionist, is not credible and must be scrutinized with caution. Nonetheless, issues concerning the credibility of witnesses are for the trier of fact to decide. (People v. Mosley (1979), 68 Ill. App. 3d 721, 725, 386 N.E.2d 545.) Here, the jury was presented with all the evidence concerning Walensky’s convictions and his attempt to extort money from defendant’s father; moreover, the jury was instructed that evidence of a prior conviction may be used to judge the believability of a witness.

Defendant further contends that his testimony established that he did nothing to provoke Vinicky, but that Vinicky threatened to “waste” him and pulled a gun on him, and that he reasonably believed that he had to shoot Vinicky, a “huge,” drunk man. He maintains that Vinicky “was armed and drunk, shouted obsenities [sic] at [him], and was himself reaching for his weapon when the defendant was forced to used [sic] deadly force to repel the attacks upon him by two huge individuals.”

Defendant, however, ignores the testimony from Walensky, who stated that Vinicky was the “most passivistic” person he knew; that Vinicky never got into or interfered in any fights; and that Vinicky merely asked defendant “Why are you doing this?” Similarly, Chaplics described Vinicky as someone who was very quiet and “never said anything to anybody.” Pecelli likewise never saw Vinicky get into a fight or have any trouble with anyone. Furthermore, no gun was found on or near Vinicky and testimony from Vinicky’s daughter established that she had never known her father to own or ever carry a gun.

As a reviewing court, this court is not at will to overturn the judgment of the trier of fact unless the evidence fails to prove each element of the crime beyond a reasonable doubt. (People v. Almo (1985), 108 Ill. 2d 54, 67, 483 N.E.2d 203.) The issue of self-defense is one of fact (People v. Williams (1980), 85 Ill. App. 3d 850, 858, 407 N.E.2d 608), and where, as here, defendant’s testimony is contradicted, the trier of fact need not believe defendant. Defendant’s testimony concerning what occurred inside the tavern is contradicted by numerous witnesses; defendant testified that he never threatened anyone with the loss of his job or the closing of the tavern, yet Stack, Walensky, and Chaplics all testified that they heard defendant’s threats and saw defendant threaten Stack with his gun.

The jury, which listened to the testimony of defendant and the succession of witnesses presented by the State, and which observed the demeanor and sincerity of the witnesses, was better able than this court to judge witness credibility. Defendant’s testimony was uncorroborated. The State’s version was corroborated in many respects, and specifically by the absence of a gun on or near Vinicky’s body. We note that any inconsistencies in the testimony of the State’s witnesses were emphasized by defense counsel during cross-examination. The jury was free to believe the State’s witnesses and to disbelieve defendant, obviously an interested witness in his own behalf. See People v. Almo, 108 Ill. 2d at 67.

All the evidence, viewed in a light most favorable to the prosecution (People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 453), compels the conclusion that a rational trier of fact could have reasonably found the elements necessary to convict defendant of first degree murder beyond a reasonable doubt.

II

Defendant next contends that the jury was improperly instructed as to the burdens of proof for both first and second degree murder. Specifically, he asserts that the court failed to instruct the jury that the State had the burden to disprove his mitigating factors beyond a reasonable doubt. He argues that the jury should have been apprised that the State was required to disprove the elements of self-defense beyond a reasonable doubt.

In response, the State maintains that defendant has waived his right to raise this issue because of his failure to object both at trial and in a post-trial motion. (See People v. Wade (1989), 131 Ill. 2d 370, 375, 546 N.E.2d 553.) The State further argues that, assuming arguendo that the issue is not waived, the court’s instructions properly stated the applicable law.

Defendant asserts that section 3 — 2 of the Criminal Code of 1961, which provides that, if an affirmative defense is raised, the State has the burden of proving a defendant guilty beyond a reasonable doubt as to that issue together with the elements of the offense, applies in the instant case where defendant raised the issue of self-defense. (Ill. Rev. Stat. 1985, ch. 38, par. 3 — 2.) He relies upon People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141, and People v. Shields (1991), 143 Ill. 2d 435, 575 N.E.2d 538, for support. Neither case, however, supports reversal of defendant’s conviction based upon the instructions given in the instant case. In Reddick, the Illinois Supreme Court held that the then-existing pattern jury instructions for murder and voluntary manslaughter, when given together, suffered from two related defects; the instructions incorrectly informed the jury that the State was required to prove the mental conditions that reduce murder to manslaughter when properly the State should have been required to disprove those circumstances. (People v. Reddick, 123 Ill. 2d at 193-97.) In Shields, the Illinois Supreme Court held that Reddick applied retroactively to those cases that had been pending on direct review when the court decided Reddick.

The Reddick court noted, however, that its holding would have only limited application due to the legislature’s abolition of voluntary manslaughter and its enactment of the offense of second degree murder. (People v. Reddick, 123 Ill. 2d at 197.) Under former law, the State had the burden to prove the elements of murder beyond a reasonable doubt; the defendant then had the opportunity to present evidence of a factor in mitigation, serious provocation or unreasonable belief, either of which must have been present to reduce an offense of murder to voluntary manslaughter. (People v. Reddick, 123 Ill. 2d at 197.) The State then had the burden to prove the absence of the factor in mitigation beyond a reasonable doubt. (People v. Reddick, 123 Ill. 2d at 198.) Under the present statute, which became effective July 1, 1987, the State still bears the burden to prove the elements of first degree murder; however, the defendant now bears the burden to prove, by a preponderance of the evidence, one of the factors in mitigation which must be present to reduce an offense of first degree murder to second degree murder. People v. Shumpert (1989), 126 Ill. 2d 344, 351-52, 533 N.E.2d 1106; Ill. Rev. Stat. 1987, ch. 38, par. 9-2.

In the instant case, the instructions given properly advised the jury of the burdens of proof for both first degree murder and second degree murder. The instructions provided that the State had the burden to prove defendant guilty of first degree murder beyond a reasonable doubt, but that it was defendant’s burden to prove by a preponderance of the evidence that a mitigating factor was present for a guilty verdict for second degree murder.

Defendant contends that, because he raised the affirmative defense of self-defense (Ill. Rev. Stat. 1987, ch. 38, par. 7 — 14), the court should have instructed the jury that the State had the burden of proving him guilty beyond a reasonable doubt as to that issue. (Iill. Rev. Stat. 1987, ch. 38, par. 3 — 2(b).) Although it is true that where there is evidence of self-defense, the State must negate self-defense beyond a reasonable doubt (People v. Buckner (1991), 220 Ill. App. 3d 468, 581 N.E.2d 102; People v. Brown (1991), 218 Ill. App. 3d 890, 895, 578 N.E.2d 1168), a review of the record demonstrates that any failure to supplement the instructions was harmless beyond a reasonable doubt and any additional instructions could not have affected the jury’s verdict. See People v. Buckner, 220 Ill. App. 3d at 473; People v. Fierer (1988), 124 Ill. 2d 176,186, 529 N.E.2d 972.

Nowhere does the record reflect that the jury was erroneously advised that it was defendant’s burden to prove self-defense; rather, even the State in closing argument acknowledged to the jury that the State’s burden was to disprove self-defense. Furthermore, we find a dearth of evidence of self-defense in the record. Because the evidence supporting defendant’s first degree murder conviction was so clear and convincing that the jury’s verdict could not have been different had additional instructions been given, defendant’s argument must fail. People v. Shields, 143 Ill. 2d at 454.

Ill

Defendant next contends that he was denied his right to a fair trial by prejudicial remarks made by the prosecutor during opening statements and closing arguments, and statements made by the prosecutor allegedly in violation of a motion in limine.

The State responds that defendant has waived his arguments concerning statements made in closing argument and in violation of the motion in limine because he failed to raise those issues in his post-trial motion. In the alternative, the State asserts that all comments were proper.

The complained-of comments involved the State’s remarks during its opening statement and its closing argument that defendant’s father was a State senator. During opening statement, the prosecutor informed the jury that it was important for them to know that defendant’s father was a senator because the evidence would show that defendant thought that this fact

“gave him the power to threaten people with handguns, to threaten people with the loss of their jobs, to threaten Chicago Police Officers, to do whatever he wanted to do — because his father is State Senator Savickas.
It also enabled one of our witnesses to think that he would make a buck, *** attempt to get some money from this guy, because there was something at stake for this State Senator.”

In closing, the prosecutor argued that the witnesses who testified against defendant did so because they did not “care who his dad is.” The prosecutor further argued that “You’re going to be treated the same when you’re dead, and not just by God who doesn’t care if you’re rich or powerful or a senator’s son.”

Notwithstanding defendant’s assertions of prejudicial error, the comments made by the prosecutor were not improper. The purpose of an opening statement is to inform the finder of fact what the evidence will show. (People v. Warmack (1980), 83 Ill. 2d 112, 125, 413 N.E.2d 1254.) It is improper, however, for the prosecutor to comment on testimony which will be introduced and then fail to introduce that evidence. (People v. Thompkins (1988), 121 Ill. 2d 401, 521 N.E.2d 38.) In the instant case, the statements made during opening statement were clearly comments upon the evidence the prosecutor intended to introduce at trial, and which later was introduced. The evidence at trial showed that defendant threatened one person with the loss of his job and another with the loss of his tavern, and that he told the police that they would be in trouble, but for the fact that his father was in Florida. The record does not indicate that, as defendant argues, the prosecutor’s remarks were intended to inflame the passions of the jury (see People v. Estes (1984), 127 Ill. App. 3d 642, 469 N.E.2d 275), but rather, indicates that the remarks were merely comments upon the evidence introduced later at trial. Similarly, the prosecutor’s statements in closing argument properly commented upon the evidence introduced at trial and drew legitimate inferences therefrom. People v. Rader (1988), 178 Ill. App. 3d 453, 468, 532 N.E.2d 1365.

Defendant also asserts that the State violated an in limine order excluding testimony about a saying on the T-shirt that defendant wore on the day of the shooting, reading, “Gun Control Means Being Able to Hit the Target.” The court found that the T-shirt’s message was “highly inflammatory” and thus barred it.

At trial, the prosecutor asked defendant, “Now, without saying what was on [your T-shirt], did it have a saying on it?” The court sustained defense counsel’s objection and the prosecutor continued with a different line of questioning. Defendant attaches reversible error to this one reference to the T-shirt.

While it is improper to refer to evidence which has been excluded (People v. Burton (1978), 63 Ill. App. 3d 915, 919, 380 N.E.2d 929), the prosecutor’s question in the instant case did not violate the motion in limine; it merely asked whether defendant was wearing a T-shirt with a saying. Defendant’s argument that the jury necessarily concluded that the saying was harmful to defendant’s case does not follow.

Because none of the complained-of remarks, taken singularly or as a whole, constituted reversible error, defendant’s argument must fail. People v. Estes, 127 Ill. App. 3d at 650.

IV

Defendant lastly contends that he was denied his sixth amendment right to confrontation due to the nonproduction of a witness at trial. The State responds that defendant was not prejudiced by the nonproduction because another witness’ testimony established exactly the same information.

In the instant case, Walensky testified that he met attorney Robert Cooley, whom he had seen at the police station on behalf of defendant, at a restaurant four to five days after the shooting. There, Walensky offered to change his testimony for $200,000. Unknown to Walensky, at the time of the meeting, Cooley was an informant for the Federal government and the meeting was the subject of government memos.

Thereafter, the defense requested production of both the memos and Cooley, later serving subpoenas on the United States Attorney’s Office. Defense counsel was told that Cooley’s production would be difficult because he was in protective custody. The memos, stating in summary form the events of the meeting, however, were tendered to the defense on March 7, 1990. The memos were not prepared by Cooley; rather, they were summaries prepared by the government.

Two days before the commencement of trial, on April 20, 1990, the attorneys met at the office of the United States Attorney. Counsel for defendant was told that Cooley was available on the telephone and, with the other attorneys present, spoke with Cooley. Cooley refused to discuss the case, but stated that, if put on the witness stand, he would talk. Cooley, upon further questioning, however, stated that the memoranda made about the meeting were “basically correct” and that “I could not help either side. I know nothing in addition to what you know.” Cooley was never produced as a witness, despite a circuit court order entered on January 25, 1990, compelling his production.

The confrontation clause of the sixth amendment guarantees the right of a criminal defendant to be confronted by the witnesses against him, essential to which is the right to test the truth of their assertions through cross-examination at trial. (Pointer v. Texas (1965), 380 U.S. 400, 13 L. Ed. 2d 923, 85 S. Ct. 1065.) For purposes of the confrontation clause, a “witness against a defendant” is one whose testimony is part of the body of evidence which the jury may consider in determining his guilt or innocence. Richardson v. Marsh (1987), 481 U.S. 200, 95 L. Ed. 2d 176,107 S. Ct. 1702.

In the case at bar, defendant asserts that there is “no question of the Defendant’s need to call Robert Cooley” and argues that the fact that Walensky testified about his meeting with Cooley does not mitigate the prejudice suffered. He maintains that the record indicates “that more information was available than what the government chose to tender or what Walensky chose to say at trial.” He does not, however, say what that information might be.

Despite defendant’s assertions, it is what he was allowed to do, not what he was prohibited from doing, that is important; “[t]he issue under the confrontation clause is whether the jury has been made aware of adequate factors to determine whether the witness is worthy of belief [citation], not whether any particular limitation has been placed upon defendant’s ability to cross-examine a witness or whether the jury has knowledge of any specific fact.” (People v. Hines (1981), 94 Ill. App. 3d 1041, 1048, 419 N.E.2d 420.) Where the entire record reflects that the jury was apprised of adequate factors concerning relevant areas of impeachment, no constitutional issue arises merely because defendant was prohibited from pursuing an area of inquiry. People v. Hines, 94 Ill. App. 3d at 1048.

Accordingly, defendant’s contention that his rights were violated by his inability to impeach Walensky’s testimony with Cooley’s testimony must fail. Not only did Walensky testify as to everything that occurred between Cooley and him, but Cooley himself stated to defense counsel that he could not provide any more information than what the attorneys already knew. Because the jury was apprised of Walensky’s attempts at extorting money from defendant’s father through Cooley, we find that defendant’s right to confrontation was not violated.

Based upon the foregoing, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

HARTMAN, P.J., and SCARIANO, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    ANNA JESSEE, Plaintiff-Appellee, v. AMOCO OIL COMPANY, Defendant-Appellant and Third-Party Plaintiff-Appellant (Standard Heating and Cooling Company, Defendant-Appellee; Tommy Baker et al., Third-Party Defendants-Appellees).
    First District (2nd Division)
    No. 1—91—0519
    Opinion filed May 19,1992.

      Pretzel & Stouffer, Chartered, of Chicago (John V. Smith II, Joseph M. Dooley III, Robert Marc Chemers, and Michael G. Bruton, of counsel), for appellant.
    Robert H. Mittelman, of Chicago (Fredrick B. Barder, of counsel), for appellee Anna Jessee.
    French, Kezelis & Kominiarek, P.C., of Chicago (David C. Burtker, Michael J. Ortyl, and Daniel C. Hofert, of counsel), for other appellees.
   JUSTICE DiVITO

delivered the opinion of the court:

Plaintiff Anna Jessee brought suit against defendants Amoco Oil Company (Amoco) and Standard Heating and Cooling Company (Standard Heating), alleging injuries from exposure to carbon monoxide sustained as a result of the negligent installation of a furnace in one of Amoco’s gas stations. Both defendants filed counterclaims under the Illinois Contribution Among Joint Tortfeasors Act (Contribution Act) (Ill. Rev. Stat. 1989, ch. 70, par. 302). A jury returned a verdiet for $525,000 in favor of plaintiff and against both defendants, attributing 95% fault to Standard Heating and 5% fault to Amoco. Subsequent to the verdict, plaintiff settled with Standard Heating for $400,000. Based upon a finding of good-faith settlement, the circuit court vacated the judgment previously entered against Standard Heating on the jury’s verdict and dismissed Amoco’s contribution claim against Standard Heating. The court also denied Amoco’s post-trial motion.

Amoco appeals, contending that (1) the circuit court erred in denying its motion for a directed verdict; (2) the circuit court erred in allowing plaintiff’s treating physician to testify to opinions beyond those disclosed in his discovery deposition; (3) the circuit court erred in finding that the post-judgment settlement between plaintiff and Standard Heating was made in good faith; and (4) the jury’s award of $525,000 for plaintiff’s pain and suffering was excessive and against the manifest weight of the evidence.

Sometime in 1982, Tommy Baker leased the service station at Broadway and Foster Avenues in Chicago from Amoco. The relationship between Amoco and Baker was governed by Amoco’s maintenance policy and guidelines, which provided that Amoco was responsible for major repairs at the station, including replacement of furnaces. Other operating procedures, such as the hiring of mechanics and clerks at the station, were within the province of the lessee, Baker.

At the time Baker entered the lease, the station consisted of a double service bay, several self-serve and full-serve pumps, a sales room, and a cashier’s booth. The cashier’s booth was a small brick room with one self-locking door and two bullet-proof glass windows with small slots where customers could pay the cashier. Sometime in late 1982 or early 1983, plaintiff was hired by Baker as the cashier for the station.

In November 1982, Amoco received a call that Baker’s station was having problems with the heat. Amoco’s supervisor of field maintenance, Sigurd Larson, was responsible for determining whether a new furnace was needed for the station and, as part of his duties, asked Wildwood, an independent heating and air conditioning contractor, to investigate the problem. After inspecting the old oil-fired furnace, Wildwood recommended its removal and replacement with a new furnace; Wildwood also submitted a bid for the work, which contained a notation for the installation of additional duct work. In addition to Wildwood’s bid, Amoco solicited a bid from Standard Heating, which was $5 less than Wildwood’s bid. Although Standard Heating’s bid did not contain a notation for duct work to connect the furnace to the outside vent, Amoco accepted Standard Heating’s bid. Standard Heating then hired a subcontractor, who installed the new furnace between December 10 and 13, 1982. A few days after the work, Standard Heating returned to the station and replaced a blower motor because the furnace would not start.

On January 31, 1983, Roy Banes, a mechanic at the station, was working on a car in one of the service bays. When Banes raised the running car on the hoist, the exhaust hose that had been discharging the fumes to the outside disconnected; rather than reconnect the hose to the car’s exhaust pipe, Banes raised the garage door approximately two feet to disperse the carbon monoxide fumes.

Shortly after her 3 p.m. shift began on that day, plaintiff, who was sitting in the cashier’s booth, began feeling ill: she first noticed that she had a bad headache; then her heart began beating quickly; she became nervous and “panicky”; and she was unable to speak or move. With difficulty, plaintiff was able to get out of the booth and began vomiting.

An ambulance took plaintiff to Edgewater Hospital, where she was treated in a hyperbaric chamber for carbon monoxide poisoning. While at the hospital, plaintiff was examined by Dr. Claude Zanetti, who described her as “acutely delirious”: she was confused, combative, anxious, upset, and thrashing about on the stretcher. At the time of her admittance, plaintiff’s carbon monoxide level, normally 2% or less for a nonsmoker, 6% for a smoker, was 41.6%. Following treatment in the hyperbaric chamber, plaintiff was released from the hospital the following day, apparently recovered with no residual side effects; however, shortly after her release, Dr. Zanetti recommended that she consult a neurologist.

Over the course of the year, Dr. Zanetti examined plaintiff several times at the hospital. Although plaintiff was experiencing some medical problems, Dr. Zanetti initially did not attribute those problems to carbon monoxide poisoning. During his last examination of plaintiff on January 9, 1984, however, she complained of headaches, memory problems, and black spots in her vision. To Dr. Zanetti, those symptoms pointed to a possible chronic organic brain syndrome, or brain damage, resulting from carbon monoxide poisoning. Following a barrage of neuropsychological tests performed by Dr. Jack Arbit, a psychologist, Dr. Zanetti determined that plaintiff suffered from organic brain damage. Dr. Zanetti determined that the delay of plaintiff’s symptoms was typical of carbon monoxide poisoning; occasionally recognition of carbon monoxide poisoning takes weeks or months.

The tests performed by Dr. Arbit indicated that plaintiff suffered from organic brain dysfunction; she showed signs of reduced intelligence, reduced intellectual function, reduced memory, dysphasia (impairment of speech), and some loss of coordination. In addition, Dr. Arbit’s test results indicated that plaintiff was “depressed to the point where to some extent she has simply shut off psychologically”; he postulated that her depression resulted from her awareness of the neuropsychological damage she suffered. Based upon the results of the tests, Dr. Arbit diagnosed plaintiff as suffering from “organic brain disturbance or dysfunction.”

Sometime after the incident, Amoco checked the station to determine the cause of the carbon monoxide leak. Its investigation revealed that the fresh air return was not reconnected to the new furnace, thus allowing carbon monoxide from the garage to seep into the ventilation system and circulate into the cashier’s booth where plaintiff was working. Although Larson was aware at the time the new furnace was installed that new duct work was required to connect the furnace to the existing duct work, no such work was done, resulting in plaintiff’s carbon monoxide poisoning. Eventually, Amoco hired and paid Standard Heating to install the additional duct work to connect the new furnace so that fumes from the service bays would be vented outside.

On January 10, 1984, plaintiff filed a complaint, alleging that Amoco negligently installed and maintained the heating and ventilation system at the service station. Thereafter, Amoco filed a third-party complaint against Standard Heating, mechanic Roy Banes, and station operator Tommy Baker. Plaintiff later filed an amended complaint asserting a claim directly against Standard Heating.

On November 10, 1990, the jury returned a verdict in favor of plaintiff and against both Amoco and Standard Heating in the amount of $525,000 for pain and suffering, finding Amoco 5% at fault and Standard Heating 95% at fault.

Prior to the circuit court’s ruling on the post-trial motions, but after judgment was entered on the verdict, plaintiff settled with Standard Heating for $400,000, more than $50,000 less than the amount of recoverable damages apportioned to Standard Heating by the jury. Over objections by Amoco, the circuit court found the settlement to be in good faith, vacated the judgment against Standard Heating, and dismissed Amoco’s contribution claim. The court further denied Amoco’s post-trial motion. Amoco appeals from these orders.

I

Amoco initially contends that the circuit court erred in not granting its motion for a directed verdict. Specifically, Amoco maintains that it cannot be held liable for the alleged negligent replacement of the old furnace or the construction on the duct work because Standard Heating, an independent contractor, performed the work.

In response, plaintiff asserts that Amoco retained control over the additional duct work portion of the job because Amoco failed to hire an independent contractor to install the duct work. Plaintiff argues that, because the bid for work submitted by Standard Heating did not specifically refer to the duct work necessary to properly install the new furnace, Amoco should be liable for Standard Heating’s failure to install. Plaintiff maintains that Amoco was aware of the necessity of the duct work and was moreover apprised of its necessity by Wild-wood’s bid, which included a notation for such work. Further, plaintiff maintains that Amoco was negligent in failing to inspect Standard Heating’s work and discover the patent defect in the ventilation system.

Generally, an employer of an independent contractor is not liable for the acts or omissions of the independent contractor; however, an exception to the rule provides that an employer who retains control of any part of the work will be liable for injuries resulting from his failure to exercise his right of control with reasonable care. (Claudy v. City of Sycamore (1988), 170 Ill. App. 3d 990, 995, 524 N.E.2d 994; Spivey v. Brown (1986), 150 Ill. App. 3d 139, 143, 502 N.E.2d 23.) The rule is subject to exception also where the employer orders or directs the acts causing the harm or where the employer negligently selects an incompetent contractor. Dvorak v. Primus Corp. (1988), 168 Ill. App. 3d 625, 633, 522 N.E.2d 881.

In view of the evidence presented in the case at bar, taken with its intendments most favorable to plaintiff, we find that the circuit court properly denied Amoco’s motion for a directed verdict. (See Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) Although Amoco contends that plaintiff’s assertion that Amoco controlled the duct work places a “difficult” and “impossible” burden upon an employer to detail every aspect of work to be performed, the evidence adduced at trial supports plaintiff’s contention that Amoco retained control of the additional duct work portion of the furnace replacement.

The record establishes that Amoco knew that the additional duct work was an “important” part of the bid. From the evidence at trial the jury could conclude that Amoco chose to hire the independent contractor whose bid failed to include duct work, although it had already received a bid from another contractor which noted the duct work. Amoco asserts that the “only reasonable inference which can be drawn from this testimony” is that Amoco, based on custom and practice, understood that Standard Heating’s bid was for the complete replacement of the furnace, including the duct work; however, Amoco has failed to provide any explanation for its subsequent payment of $375 to Standard Heating for installation of the missing duct work. Amoco’s contention, that a “myriad” of reasons, from good business relations to oversight, explain the subsequent payment and installation, is not borne out by the record.

Rather, we find that, in the case sub judice, there was sufficient evidence for the jury to conclude that Amoco knew that duct work was necessary but hired a contractor whose bid did not include the duct work, and that in so doing, Amoco retained the control and the responsibility of installing the duct work. Accordingly, we hold that the circuit court did not err in denying Amoco’s motion for a directed verdict.

II

Amoco next contends that the circuit court erred in allowing Dr. Zanetti, plaintiff’s treating physician, to render opinions not disclosed in his discovery deposition. Specifically, Amoco maintains that Dr. Zanetti, in his discovery deposition, did not rely upon Dr. Arbit’s report on plaintiff to form his opinions; however, at trial, he relied upon that report. Amoco asserts that this was error pursuant to Supreme Court Rule 220(d). 134 Ill. 2d R. 220(d).

Rule 220, governing the disclosure and discovery of expert witnesses, provides in pertinent part:.

“(b) Disclosure.
(1) *** In order to insure fair and equitable preparation for trial by all parties the identity of an expert who is retained to render an opinion at trial on behalf of a party must
be disclosed by that party ***.
* * *
(d) Scope of Testimony. To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings ***, his direct testimony at trial may not be inconsistent with or go beyond the fair scope of the facts known or opinions disclosed in such discovery proceedings.” (134 Ill. 2d R. 220.)

Rule 220(aXl) defines an “expert” as

“a person who *** possesses knowledge of a specialized nature beyond that of the average person on a factual matter material to a claim or defense in pending litigation and who may be expected to render an opinion *** at trial.” 134 Ill. 2d R. 220(aXl).

Amoco’s argument is premised upon its assertion that Dr. Zanetti falls within the definition of an “expert” and, as such, his testimony at trial cannot contradict or even supplement, as Amoco argues it did here, his opinions disclosed in his deposition. (134 Ill. 2d Rules 220(aXl), (d).) Although Amoco does not argue that plaintiff was required to disclose Dr. Zanetti as an expert witness (134 Ill. 2d R. 220(bXl)) or that she was required to comply with the discovery requirements of expert witnesses (134 Ill. 2d R. 220(c)), Amoco maintains that the scope of Dr. Zanetti’s testimony at trial is governed by Rule 220(d).

An expert who acquires information because he was an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit rather than acquiring information because a lawsuit is contemplated or is pending should be treated as an ordinary witness; thus, Rule 220 disclosure and discovery provisions do not apply to treating physicians. Wilson v. Chicago Transit Authority (1988), 126 Ill. 2d 171, 533 N.E.2d 894; Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 529 N.E.2d 525; Cochran v. Great Atlantic & Pacific Tea Co. (1990), 203 Ill. App. 3d 935, 940, 561 N.E.2d 229; see also Boatmen’s National Bank v. Martin (1992), 223 Ill. App. 3d 740, 742-43, 585 N.E.2d 1328.

Both Wilson and Tzystuck considered the issue of whether a treating physician who will testify to a medical opinion at trial need be disclosed as an expert witness within the meaning of Rule 220(b)(1). In Wilson, the court held that, although a treating physician’s identity is discoverable under Supreme Court Rule 201(bXl), a plaintiff is not mandated to disclose a treating physician as an expert witness pursuant to Rule 220. (Wilson, 126 Ill. 2d at 176-77.) Likewise, the supreme court in Tzystuck “rejected the notion that treating physicians are to be regarded as expert witnesses under Rule 220.” Tzystuck, 124 Ill. 2d at 239.

Amoco asserts, however, that Wilson and Tzystuck are limited in application only to those issues pertaining to disclosure of experts or treating physicians; Amoco maintains that limitations of an expert’s scope of testimony, governed by Rule 220(d), apply in the instant case to a treating physician. For support, Amoco relies upon Karr v. Noel (1991), 212 Ill. App. 3d 575, 571 N.E.2d 271, where a treating physician, also a defendant in the litigation, testified at trial that certain medical texts were authoritative. During his deposition, however, the treating physician was unable to name any authoritative medical texts upon which he relied. In holding that the treating physician’s testimony exceeded that of his deposition, the court in Karr held that a “defendant physician may still be an expert witness for the purpose of sections (c) and (d) [of Rule 220]. He is subject to discovery by deposition only, and the scope of his testimony at trial may not exceed that of his deposition testimony.” Karr, 212 Ill. App. 3d at 583.

Notwithstanding the holding in Karr, we conclude that the circuit court did not err in allowing Dr. Zanetti’s testimony. As the supreme court made clear in Tzystuck, treating physicians do not fall under the rubric of expert witnesses as defined by Rule 220. Here, Dr. Zanetti, unlike the physician in Karr, was not a party to the litigation; rather, Dr. Zanetti was clearly called to testify as plaintiff’s treating physician and his testimony at trial concerned only his treatment of plaintiff and his subsequent diagnosis of her ailment.

Moreover, the record in the case at bar discloses that Dr. Zanetti’s testimony at trial did not differ in any significant manner from his deposition. During his deposition, Dr. Zanetti stated that, when he released plaintiff from the hospital, he thought she had had an apparent recovery; however, he recommended that she undergo neurological tests. Only after several months had passed did Dr. Zanetti determine that plaintiff’s delayed symptoms signified permanent neurological damage from carbon monoxide poisoning. At the time of his deposition, Dr. Zanetti stated that his opinion of plaintiff’s condition was not based upon any neurological tests; however, he did acknowledge that, to diagnose organic brain syndrome, he would refer a patient for detailed neurological testing and rely upon those tests. Dr. Zanetti’s reliance on Dr. Arbit’s test results for his testimony at trial thus did not differ from, but rather was consistent with, his deposition testimony in which he stated that he would rely upon neurological tests to determine the effects of carbon monoxide exposure.

Accordingly, we find that the circuit court did not err in allowing Dr. Zanetti’s testimony.

III

Amoco next asserts that the circuit court erred in finding that the post-judgment settlement between Standard Heating and plaintiff was made in good faith. Because plaintiff will recover the full amount of her judgment regardless which defendant ultimately bears the burden of satisfying it, she offers no response to Amoco’s contention. (See Henry v. St. John’s Hospital (1990), 138 Ill. 2d 533, 563 N.E.2d 410.) Standard Heating, however, responds that its settlement with plaintiff was indeed made in good faith and, thus, the court’s order dismissing Amoco’s contribution claim against it should be affirmed.

Section 2 of the Contribution Act provides that where two or more persons are subject to liability in tort arising out of the same occurrence, there is a right of contribution among them. (Ill. Rev. Stat. 1987, ch. 70, par. 302.) Section 2 also provides that a tortfeasor to whom a release in settlement is given in good faith is discharged from all liability for any contribution to any other tortfeasor. Ill. Rev. Stat. 1987, ch. 70, pars. 302(c), (d); Perez v. Espinoza (1985), 137 Ill. App. 3d 762, 764-65, 484 N.E.2d 1232.

The Contribution Act, though, does not define “good faith.” (Pritchard v. SwedishAmerican Hospital (1990), 199 Ill. App. 3d 990, 996, 557 N.E.2d 988.) The Illinois Supreme Court has stated, however, that when determining whether a settlement was entered into in good faith, courts must take into account the entire circumstances surrounding the settlement. Wilson v. Hoffman Group, Inc. (1989), 131 Ill. 2d 308, 318, 546 N.E.2d 524; Ballweg v. City of Springfield (1986), 114 Ill. 2d 107, 499 N.E.2d 1373.

Where there is a resolution of a claim by virtue of a settlement, and the terms of the settlement are made known to the court, there has been a preliminary showing of good faith which creates a presumption of validity. (Snoddy v. Teepak, Inc. (1990), 198 Ill. App. 3d 966, 969, 556 N.E.2d 682.) Because public policy favors the peaceful and voluntary resolution of disputes through settlement, any assertion of bad faith must be proved by clear and convincing evidence by the party claiming absence of good faith. Argueta v. Baltimore & Ohio Chicago Terminal R.R. Co. (1991), 224 Ill. App. 3d 11, 22, 586 N.E.2d 386; Banks v. R.D. Werner Co. (1990), 201 Ill. App. 3d 762, 770, 559 N.E.2d 217; Pritchard, 199 Ill. App. 3d at 997; McKanna v. Duo-Fast Corp. (1987), 161 Ill. App. 3d 518, 525, 515 N.E.2d 157.

The invalidity of a settlement agreement is shown by demonstrating collusion, fraud, mutual mistake, and tortious or wrongful conduct. (Snoddy, 198 Ill. App. 3d at 969.) When one tortfeasor chooses to settle and another chooses to continue to litigate, inequality in the ultimate cost does not signal bad faith; the mere fact that a settlement agreement may have been advantageous to a party is not necessarily an indicium of bad faith. (Pritchard, 199 Ill. App. 3d at 1000; McKanna, 161 Ill. App. 3d at 525.) Nor is bad faith necessarily indicated where a settlement has been made simply to avoid third-party liability. Christmas v. Hughes (1989), 187 Ill. App. 3d 453, 543 N.E.2d 274.

In the case sub judice, plaintiff and Standard Heating settled for $400,000 after the jury returned a $525,000 verdict for plaintiff. Based upon the jury’s apportionment of fault, Standard Heating was liable for $453,182.30 of the judgment. Thus, in settling with plaintiff, Standard Heating avoided $53,182.30 in liability.

Although Amoco does not point to any evidence in the record which would indicate collusion or fraud in the settlement, it nonetheless urges this court to find that “without some good cause shown, a post-judgment settlement for less than the amount of liability apportioned to the settling defendant should not extinguish a non-settling defendant’s contribution claim.” Such a finding, however, would be contrary to the Contribution Act.

The ability to extinguish the right of contribution is expressed in clear and unambiguous language. Although it is the duty of a reviewing court, when interpreting a statute, to determine the intent of the legislature when enacting a statute, the rules of statutory construction require this court to first look to the statutory language itself as the best indication of the intent of the drafters. (Henry, 138 Ill. 2d at 541.) Nowhere in the Contribution Act does the legislature distinguish between pretrial or post-judgment settlements; rather, section 2 provides clearly that “[t]he tortfeasor who settles with a claimant *** is discharged from all liability for any contribution to any other tortfeasor.” Ill. Rev. Stat. 1987, ch. 70, par. 302(d).

Moreover, Amoco’s reliance on the dissenting opinion in Henry, stating that “[settlement agreements should not be used as an instrument of conspiracy to ‘gang up on’ a nonsettling defendant” (Henry, 138 Ill. 2d at 553 (Ryan, J., dissenting)), is not persuasive. In Henry, the plaintiff and one defendant, found 93% at fault, settled for an amount substantially less than what that defendant was liable for after the verdict of the jury. The majority upheld the settlement although it did “not decide, however, whether a settlement between a joint tortfeasor and a plaintiff, entered into after a jury has determined the amount of each joint tortfeasor’s pro rata share of the judgment amount, which settlement results in one joint tortfeasor’s paying substantially less than its pro rata share while cutting off that tortfeasor’s contribution liability to the remaining joint tortfeasors, is a good-faith settlement under the Contribution Act.” (Henry, 138 Ill. 2d at 547-48.) The dissent found the result, making the nonsettling defendant, who was liable only for $715,559.07 prior to the settlement, liable for $5,511,759, “terribly wrong.” Henry, 138 Ill. 2d at 550-51 (Ryan, J., dissenting).

In the instant case, Standard Heating, unlike the defendant in Henry, is not liable for substantially less than its pro rata share. Moreover, there exist several reasons why plaintiff would settle with Standard Heating subsequent to a judgment, none of which point to collusion or fraud. At the time of the settlement, post-trial motions were pending; a viable explanation for plaintiff’s settlement is that she anticipated a lengthy appeal process which might have forestalled collection of her judgment, providing an impetus for her to settle. A further reason for settlement while post-trial motions were pending could be plaintiff’s desire to settle in order to achieve some measure of certainty.

Because it is not the function of a reviewing court to substitute its judgment for that of the circuit court and mindful that the court was involved in the settlement process and heard all the evidence, we will not interfere with the circuit court’s finding of a good-faith settlement. Ballweg, 114 Ill. 2d at 122; Argueta, 224 Ill. App. 3d at 23.

IV

Amoco lastly asserts that the jury award of $525,000 for plaintiff’s pain and suffering is not supported by the evidence. Specifically, Amoco maintains that because the jury awarded no damages for disability or lost earnings, it necessarily found that plaintiff suffered no permanent injuries; thus, Amoco argues that the jury’s award “for pain and suffering associated with one day in the hospital and the few weeks before Dr. Zanetti noted that the plaintiff appeared to be fully recovered is clearly excessive and should be shocking to the judicial conscience.”

An award of damages is excessive and unfair if the amount falls outside the necessarily flexible limits of fair and reasonable compensation or is so large as to shock the judicial conscience. (Malfeo v. Larson (1990), 208 Ill. App. 3d 418, 425, 567 N.E.2d 364.) Correspondingly, damages are particularly within the province of the trier of fact and a reviewing court will not disturb them on appeal unless obviously the result of passion or prejudice. Malfeo, 208 Ill. App. 3d at 425.

In the instant case, although the jury awarded no damages for lost earnings or for disability, its award for pain and suffering was not excessive based upon the record in the instant case. Dr. Arbit testified at trial that plaintiff permanently suffered reduced intelligence, reduced memory, dysphasia, and some loss of coordination. Further, as a result of the neuropsychological damage she suffered, plaintiff was severely depressed and unable to function in the same capacity as prior to the incident. Notwithstanding the jury’s failure to award damages for lost earnings or for disability, the award certainly falls within the “flexible limits of fair and reasonable compensation.” Cf. Martin v. Cain (1991), 219 Ill. App. 3d 110, 578 N.E.2d 1161.

Accordingly, based on the foregoing, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

HARTMAN, P.J., and SCARIANO, J., concur.

      Standard Heating eventually filed a counterclaim against Amoco and a third-party action against the subcontractor who installed the furnace. Banes was never served and never appeared in the case; the subcontractor was dismissed from the case prior to trial pursuant to a settlement; and Baker settled with plaintiff prior to the jury’s verdict.


author: JUSTICE CERDA

text:
    CAROL L. WORTH, Plaintiff-Appellee, v. THE BOARD OF TRUSTEES OF THE POLICE PENSION FUND OF THE VILLAGE OF ORLAND PARK et al., Defendants-Appellants.
    First District (3rd Division)
    No. 1—91—1797
    Opinion filed May 20,1992.

      Puchalski, Keenan & Reimer, of Chicago, for appellants.
    LeRoy W. Gudgeon, of Chicago, for appellee.
   JUSTICE CERDA

delivered the opinion of the court:

Defendants, the Board of Trustees of the Police Pension Fund of the Village of Orland Park, Illinois (the Board), Board president Charles R. Cassata, and trustees George G. Gilbert, Ronald Note-boom, Daniel Nash, and Theodore Ludes, appeal from the reversal of the Board’s decision denying plaintiff, Carol L. Worth, a line of duty disability pension.

Plaintiff’s complaint for administrative relief alleged the following. Plaintiff was appointed a police officer of the Village of Or-land Park on or about July 7, 1987. She applied for a line of duty disability pension based on injuries resulting from the performance of an act of duty on January 30, 1988. After hearings, the Board issued a written decision on December 17, 1989, granting plaintiff a non-duty disability pension. Plaintiff sought a reversal of the decision on the basis that she was entitled to a line of duty disability pension as provided in section 3 — 114.1 of the Illinois Pension Code (Ill. Rev. Stat. 1989, ch. lOSVa, par. 3 — 114.1) (the Code). We affirm the reversal of the Board’s decision.

Plaintiff testified at a Board hearing to the following about her left knee injury. She had no preexisting injury to her left knee prior to working as a police officer. The first incident of problems with her knee was when she was sitting at the police academy with one leg underneath her. She felt a pain, and when she sat back down again, her knee cracked. The next morning she was in a car on her way to the academy when her knee locked. She could not straighten it out or bend it up. She was in extreme pain and was taken to the hospital.

On January 30, 1988, plaintiff was on duty in a squad car driven by Officer Pila on the way to the police station at the end of their shift. While stopped at a red light, their car was struck by another car. Both her knees hit the dashboard, and the left knee hit the radio console. Although her knees hurt, she exited the car to check for injuries of the other people involved in the accident.

On February 20, 1988, plaintiff was on duty doing routine patrol when she slipped and twisted her left knee. She did not fall, but she felt pain.

Plaintiff further testified that her doctor subsequently recommended arthroscopic surgery to determine whether there was any torn cartilage in the left knee. After surgery in March 1988, she developed an infection in the knee, and she required more operations. Later, it was determined that she had reflect sympathetic dystrophy, and she was told that she would never be able to bend her knee again.

Orland Park police officer Michael Pila testified that he did not see whether plaintiff struck her knees on the dashboard in the January 30,1988, accident.

Dr. Leon Malachinski testified that plaintiff had a greatly diminished range of motion in her left knee. She could not perform the regular duties of a police officer or light duty police work as result of the knee’s condition. It would be extremely difficult for her to perform virtually any type of work.

Dr. Arthur E. Ostergard testified that he was an occupational health consultant who examined plaintiff on the Board’s request in order to issue an opinion regarding her ability to perform the functions of a police officer. Another doctor had referred to a softening of the bone of plaintiff’s left knee and an abnormality with her left lateral meniscus. The softening could have been caused by the impact on the dashboard. An operation was performed on her knee, and an infection in the knee called sepsis developed afterwards. There was subsequent scarring with decreased range of motion and function of the knee. Plaintiff currently has adhesions, scarring, the residual of a septic joint, and difficulty with the range of motion of that joint. Plaintiff could not perform the duties of a police officer.

Dr. James Charles Murray, an orthopedic surgeon, testified that he reviewed the records of plaintiff’s orthopedic physician and that he examined plaintiff. Plaintiff’s infection was the type in which bacteria released enzymes that dissolved knee cartilage. When he examined plaintiff, she had a knee replacement, which was the only viable option for semi-normal function of the knee. His opinion was that plaintiff’s cartilage had softened and was probably fractured and that the outside cartilage on her knee was hypermobile instead of immobile. Her injury was one that commonly resulted from collisions with dashboards. His opinion within a reasonable degree of medical certainty was that plaintiff sustained her injury from the collision with the dashboard because she was asymptomatic prior to the collision, because the pain began after the collision, and because the mechanism by which she sustained the injury coincided with the medical findings. It was possible that the injury occurred from some other incident in which her knee hit an object. Her knee would never be normal, and she was unable to perform the normal duties of a police officer.

The Board found the following in a written decision. Plaintiff was unable to perform her police officer duties. There were numerous incidents of asserted injuries, but there was a lack of corroboration of much of plaintiff’s testimony and inconsistencies in plaintiff’s statements. Plaintiff’s claim that she struck her knee on the dashboard and on the radio during the accident was unbelievable. Plaintiff’s claim of injury on February 20, 1988, was not credible. Plaintiff failed to prove when the injury precipitating her surgery occurred, but anyway none of the events were related to the requirements of her duties as a police officer: (1) sitting in a chair was not unique to police service; (2) even if she were on duty when driving to the Chicago Police Academy, she was not performing any police functions; and (3) on January 30, 1988, the squad car was stopped at a red light, and she was not performing any task other than sitting when the car was struck. Her disability was not the result of a duty-related injury. It appeared more likely that plaintiff’s disability was the result of a complication from surgery than the result of her knee injuries. There was no evidence that the surgery was necessary. Surgical complications were not unique to police officers.

The trial court reversed the Board in a memorandum opinion that held that the causes of plaintiff’s disability were work related and that she was entitled to a line of duty pension.

Defendants argue on appeal that: (1) the Board’s decision to award a non-duty disability pension was not against the manifest weight of the evidence or legally erroneous; (2) the Board’s finding that plaintiff’s injuries were not incurred in the performance of an act of duty was not legally erroneous; and (3) the Board’s finding that plaintiff’s disability was caused by complications from surgery was not against the manifest weight of the evidence. Specifically, defendants argue that plaintiff’s injuries were not incurred in the performance of an act of duty because: (1) the mere fact that a police officer is employed and in uniform when an injury occurs does not automatically entitle her to a duty disability pension; (2) plaintiff did not show a causal connection between her injury and the performance of a specific act of duty involving a special risk not ordinarily assumed by other individuals; (3) the board did not find plaintiff’s claim of slipping on ice credible; and (4) plaintiff’s disability was the result of complications from surgery and not from injuries suffered as a result of performance of her duties as a police officer.

On appeal, a reviewing court will only examine the administrative agency’s findings of fact to determine if they are against the manifest weight of the evidence. (Wall v. Police Pension Board (1988), 178 Ill. App. 3d 438, 442-43, 533 N.E.2d 458.) The findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct. (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 110.) A reviewing court is not bound to give the same deference to an administrative agency’s conclusions of law and statutory construction as would be given factual findings, but it must exercise independent review and judgment. Illinois Bell Telephone Co. v. Human Rights Comm’n (1989), 190 Ill. App. 3d 1036, 1046, 547 N.E.2d 499, 506.

Plaintiff sought a line of duty disability pension pursuant to section 3 — 114.1 of Article 3 of the Code:

“If a police officer as the result of sickness, accident or injury incurred in or resulting from the performance of an act of duty, is found to be physically or mentally disabled for service in the police department, so as to render necessary his or her suspension or retirement from the police service, the police officer shall be entitled to a disability retirement pension of 65% of the salary attached to the rank on the police force held by the officer at the date of suspension of duty or retirement.” (Ill. Rev. Stat. 1989, ch. IO8V2, par. 3 — 114.1.)

Article 3, which governs the police pension fund for municipalities of 500,000 and under in population, also provides for an outside the line of duty disability pension:

“A police officer who becomes disabled as a result of any cause other than the performance of an act of duty, and who is found to be physically or mentally disabled so as to render necessary his or her suspension or retirement from police service in the police department, shall be entitled to a disability pension of 50% of the salary attached to the officer’s rank on the
police force at the date of suspension of duty or retirement.” (Ill. Rev. Stat. 1989, ch. 108x/2, par. 3 — 114.2.)

In contrast to Article 5 of the Code (Ill. Rev. Stat. 1989, ch. 108x/2, par. 5 — 113 (definition of act of duty)), which governs the police pension fund for cities of more than 500,000 in population, Article 3 does not contain a definition of act of duty. But it does state:

“A police officer shall be considered ‘on duty’, while on any assignment approved by the chief of the police department of the municipality he or she serves, whether the assignment is within or outside the municipality.” Ill. Rev. Stat. 1989, ch. IO8V2, par. 3-114.1.

The Board relies upon Johnson v. Retirement Board of the Policemen’s Annuity & Benefit Fund (1986), 114 Ill. 2d 518, 508 N.E.2d 718, in which a police officer sought a duty disability pursuant to Article 5 of the Code (Ill. Rev. Stat. 1989, ch. 108V2, par. 5 — 154). While the officer was at his assigned post at an intersection for traffic control, a person called to him for assistance regarding a traffic accident. In the process of crossing the intersection to investigate and respond, the officer slipped on wet pavement and fell. Defendant argued that the act of walking across a street was an act assumed by any citizen and that therefore the officer was not entitled to a duty disability pension. “Act of duty” was defined in Article 5 in relevant part as a “police duty inherently involving special risk, not ordinarily assumed by a citizen in the ordinary walks of life.” (Ill. Rev. Stat. 1989, ch. 108x/2, par. 5 — 113.) The court held that special risks encompassed more than only inherently dangerous activities and that, although police perform acts which are similar to those involved in many civilian occupations, the crux was the capacity in which the officer was acting. (Johnson, 114 Ill. 2d at 521-22.) The court also held that the officer there was performing the act of duty of responding to a citizen’s call for assistance so that he was entitled to a duty disability pension. Johnson, 114 Ill. 2d at 522.

Unlike Johnson, section 3 — 114.1 of Article 3 of the Code is involved in plaintiff’s case. That section was at issue in Olson v. City of Wheaton Police Pension Board (1987), 153 Ill. App. 3d 595, 505 N.E.2d 1387, which was cited by defendants. In Olson, a police sergeant suffered migraine headaches from job stress, which was attributed to differences in management style with his superior, to the bringing of charges against him, and to his assignment as a patrol officer. The court noted that civilians regularly suffered stress in their employment resulting from conflicts with their superiors, from complaints filed against them in connection with their jobs, and from the assignment of tasks which they deemed unsuitable for their position. (Olson, 153 Ill. App. 3d at 599.) The court cited section 5 — 113 and held that the officer’s stress did not result from his performance of an act of duty. Olson, 153 Ill. App. 3d at 599-60.

Because the case arose under section 3 — 114.1, we believe the Olson court improperly consulted the Article 5 definition of act of duty because the Article 5 definition (Ill. Rev. Stat. 1989, ch. lOS1^, par. 5 — 113) applies only to cases brought under Article 5. (See Ill. Rev. Stat. 1989, ch. ÍOS1^, par. 5 — 102.) The terms used in Article 5 have the meanings ascribed to them in the definitional sections 5 — 103 through 5 — 120. (Ill. Rev. Stat. 1989, ch. IO8V2, par. 5 — 102.) Article 5 cases applying the special risk component of the Article 5 definition therefore are not relevant to the instant case.

The first issue is how plaintiff became disabled. The manifest weight of the evidence was that plaintiff suffered her injury when her knees hit the dashboard in the automobile collision. Dr. Murray testified that plaintiff’s injury was a common injury commonly caused by collisions with dashboards and that, based on the medical evidence, her injury was in fact caused by the dashboard collision. In addition, the orthopedic surgeon testified that the injury to plaintiff’s knee cartilage resulted from the collision with the dashboard. Although Dr. Murray also testified that it was possible that plaintiff’s injury occurred from some other incident, there was no evidence of another collision with the knee.

The second issue is whether plaintiff was performing an act of duty within the meaning of section 3 — 114.1. Due to the absence of a definition in Article 3, we must construe the phrase according to its ordinary meaning. City of East Peoria v. Group Five Development Co. (1981), 87 Ill. 2d 42, 46, 429 N.E.2d 492, 494.

Plaintiff testified that she was on duty when she was riding in the squad car at the time of the collision. No special risk was explicitly required under Article 3. Therefore, the squad car in which plaintiff was riding did not have to be in pursuit of criminals or engaged in making a traffic stop for plaintiff to have been performing an act of duty, as defendants argue. Even though plaintiff and her partner were returning to the police station towards the end of their shift, plaintiff was still on assignment and was ready to perform an act of duty. Indeed, after the collision, she checked for injuries of the other persons involved. The Board erred in concluding that plaintiff was not performing an act of duty at the time of the collision.

The third issue is whether the injuries suffered after surgery “resulted” from her performance of an act of duty, within the meaning of the Code. Plaintiff’s arthroscopic surgery was done to determine the extent of her injury, and further operations were necessitated by the infection occurring after the first operation. The Board erred in finding that surgery was unnecessary. We hold that plaintiff's disability resulted from her performance of an act of duty because the infection resulted from the treatment of her collision injury. We hold that plaintiff is entitled to a line of duty disability pension.

The judgment of the trial court is affirmed.

Affirmed.

RIZZI and TULLY, JJ., concur.


author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DON McFEE, Defendant-Appellant.
    First District (4th Division)
    No. 1—89—3109
    Opinion filed May 21,1992.
    Rehearing denied June 19,1992.

      Michael J. Pelletier and Ann C. McCallister, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Judy L. DeAngelis, Special Assistant State’s Attorney, and Renee Goldfarb and Susan Smith Snyder, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant Don McFee and codefendant Timothy Tolliver were charged by indictment with armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 2), armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A— 2) and two counts of first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1). The State nol pressed the counts of felony murder, armed robbery and armed violence. The trial court granted codefendant’s severance motion and separate trials were conducted. Defendant was convicted of two counts of first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1), following a jury trial in the circuit court of Cook County and was sentenced to natural life without parole in the Illinois Department of Corrections. On appeal, defendant contends that (1) he was denied a fair trial because the State violated its discovery obligation by failing to disclose oral statements he allegedly made to an assistant State’s Attorney; and (2) the evidence was insufficient to prove his guilt beyond a reasonable doubt for the murders of Debra Dehn and Denise Michaels.

At trial, Chicago police officer Steve Martinez testified that he found Denise Michaels lying at 114th Street and Doty Road. He stated that she had been shot in the back of the head but that she was still breathing. Michaels died the following day. The witness stated that he also found Debra Dehn dead with gunshot wounds to the face approximately 15 feet to the north of Michaels. He further stated that Michaels’ car was parked in a field about 350 feet away and that the engine was running.

Dr. Thaddeus Melko, evidence technician for the Chicago police department, testified that because of Dehn’s disability as a double amputee and because of the way the blood leading to the victim was pooled, she must have been carried to the location where she was shot. The witness stated that there was a small drop of blood found on the driver’s side of Michaels’ car. The witness also testified that he recovered a Smith & Wesson revolver, two women’s purses and a semiautomatic weapon from Michaels’ vehicle. A denim jacket was also found at the scene.

Medical testimony established that Dehn was shot twice in the face at close range. Dehn was also shot in the back and that the bullet exited at her breast. An autopsy of Michaels’ body showed that she was shot once in the back of the head, once in the left arm and once in the neck. Dr. Tae An, a medical examiner for Cook County, testified that both Dehn and Michaels died as a result of multiple gunshot wounds.

Robert Kapsalis testified that on November 17, 1987, at approximately 6 p.m., he was at Michaels’ home with her daughter, Lisa, Chris Shaffer and Dehn. The witness testified that during his visit, Michaels returned home with her boyfriend, Tolliver, whose nickname was Renegade, and another man whose name the witness could not recall. The witness identified defendant as the man who was with Tolliver. The witness testified that defendant had a silver gun which he carried in a pouch and that Tolliver had a gun “like the police carry.” He further stated that Michaels told him they were going to “Cadillac’s house” to get some money Cadillac owed her. The witness testified that defendant, Tolliver, Michaels and Dehn left the apartment together.

Edward Muscarella and Lisa both testified that on the night of November 17, 1987, defendant and Tolliver visited Michaels and Dehn at Michaels’ apartment. Lisa stated that Tolliver called her on the telephone shortly after midnight. Muscarella testified that the denim jacket which was found at the murder scene belonged to Dehn and that it looked like the same jacket defendant was wearing that night.

Cortez Shields testified that on November 17, 1987, he lived at 11607 South Princeton and that he got home at about 8 p.m. that evening. He stated that upon arriving home, several people were there including defendant, Tolliver, Dehn, Michaels and Cadillac, Shields’ brother. Shields further testified that defendant and Tolliver left the house at approximately 9 to 10 p.m. and that Michaels and Dehn were gone by that time.

Shields stated that he went to the store and a short time after he returned, defendant and Tolliver returned to the house. The witness testified that his brother, Cadillac, asked them, “Did you do that?” and that defendant and Tolliver left 15 to 20 minutes after their return.

Assistant State’s Attorney Jay Kraning testified that he questioned defendant in connection with the double homicide. Kraning advised defendant of his rights and defendant agreed to speak to him. The witness testified that defendant began to give different variations of what happened on the night of November 17, 1987. He stated that defendant asked, “What if I said I shot the girls?” or “if I said I didn’t shoot the girls but was with Tolliver, what would happen to me?” After about two hours, a court reporter entered the room and recorded defendant’s statement.

In the court-reported statement, defendant stated that on November 17, 1987, he was with Tolliver, Michaels and Dehn in Michaels’ car. He stated that Michaels was driving and that Dehn was in the front seat next to her. He and Tolliver sat in the back seat. He further stated that Tolliver and Michaels were arguing about money Cadillac owed her and that Tolliver told her she was not going to get paid. Tolliver then pointed a silver-plated gun toward Michaels and fired one shot. He stated that he got out of the car and started running toward the house at 116th and Princeton when he heard another shot. After arriving at the house, defendant met Tolliver at the back door and both men went inside where Tolliver talked to Cadillac. Defendant and Tolliver then went to defendant’s aunt’s house, where Tolliver called Michaels’ daughter and told her that her mother had been shot. Defendant then went to his cousin’s house, and Tolliver went to defendant’s mother’s house.

On cross-examination, Kraning testified that after defendant made his court-reported statement, he prepared a memo describing the procedure he used in taking the statement. The memo stated that the substance of defendant’s oral statement was substantially the same as the court-reported statement. The witness stated that the memo did not include the fact that defendant had repeatedly called Kraning into the interview room and changed his story.

On redirect examination, the following testimony was adduced:

“MR. EBERHARDT [Assistant State’s Attorney]: During one of the many conversations you talked about you had with Mr. McFee that night, did he tell you that he shot one of the girls?
THE WITNESS: He told me one time — he described to me how the one victim who had no legs, who was sitting in the front of him, facing him with her back to the dash, and the other victim was shot in the head. She started crying, and he was laughing because she was jumping, because she couldn’t get out of the car because she had no legs. And then there was the shot. And then, again, he said, ‘I’m taking all that back. I didn’t say that.’
MR. EBERHARDT: Did he say that he shot her at that point, and then he retracted that?
MR. SPECTOR [Defense Counsel]: Objection, asked and answered.
THE COURT: You may answer.
THE WITNESS: I believe at that point he said he shot her.”

The witness also stated that he considered defendant’s statement about having shot Dehn to be an admission.

The following day, defendant moved for a mistrial on the grounds that the State violated discovery rules by failing to disclose inculpatory statements allegedly made by defendant to an assistant State’s Attorney during interrogation. Defendant argued that the statements had to do with defendant changing his story and allegedly confessing to having shot one of the girls. The court denied the motion based on a finding that defendant had an opportunity to interview the witness prior to trial since he testified as to the oral conversations with defendant at an earlier hearing on defendant’s motion to suppress statements. After the State rested its case, the trial court denied defendant’s motion for a directed verdict.

Chicago police officer Theatrice Patterson testified that he analyzed 18 fingerprints from the scene of the crime. The witness stated that two of the prints compared positively with Tolliver’s but that none of the prints matched the fingerprints of defendant.

The parties stipulated that Chicago police officer Richard Chenow is an expert in firearms identification. Chenow testified that the bullets recovered at the scene of the crime and during the autopsies were fired from the Smith & Wesson revolver that was found in Michaels’ car.

Defendant testified that on November 17, 1987, Tolliver and Michaels drove him from his aunt’s house to Michaels’ house, where he first met Dehn. Defendant denied having shown anyone a pistol or ever owning a gun. Defendant further stated that he, Dehn, Michaels and Tolliver drove to 116th and Princeton, where he and Tolliver went into the house and the women stayed in the car. Defendant stated that he went to the bathroom and returned to the car where he, Dehn and Michaels waited for Tolliver. After Tolliver returned to the car, the four went to the store.

Defendant stated that upon returning to the house Michaels got out of the car and spoke with a man named “B.D.” She then told defendant and Tolliver to wait inside while she, Dehn, B.D. and a man named “Nick” went on an errand. Defendant stated that he went inside the house and played cards until about midnight and then returned to his aunt’s house. He stated that the next morning he was watching television when he learned that Dehn and Michaels had been killed.

Defendant stated that two days after the victims were killed, he went to the police station to talk about what he knew concerning Dehn and Michaels. Both Tolliver and defendant’s brother had been arrested in connection with the murders. Defendant further stated that he was interrogated by several police officers and by Assistant State’s Attorney Kraning. The witness testified that he was beaten by police and told he was a liar. Defendant further stated that Kraning gave him the facts of the story for his court-reported statement. Defendant testified that he did not tell Kraning that he shot one of the victims or that he was present when the victims were shot. In rebuttal, each of the police officers present at the interrogation testified that he never hit nor did he see anyone hit defendant.

After closing arguments, the court gave its jury instructions. The jury found defendant guilty of two counts of first degree murder. Defendant’s motion for a new trial was denied. At the sentencing hearing, defendant was found eligible for the death penalty. However, the court stated that because Tolliver received natural life for the same offense, and because there were other mitigating factors, the court could not permit inconsistent sentences. Therefore, the court sentenced defendant to mandatory life without parole in the Illinois Department of Corrections. This appeal followed.

Defendant contends that he was denied a fair trial when the State violated its discovery obligations by failing to disclose inculpatory statements he allegedly made to an assistant State’s Attorney. The State maintains that defendant has waived this issue by failing to request a continuance.

When a discovery violation occurs, the preferred sanction is to grant a recess or a continuance if it provides an effective means to protect the defendant from prejudice or surprise. (People v. Velez (1990), 204 Ill. App. 3d 318, 324.) Failure to request a continuance, in order to investigate an alleged undisclosed statement, generally waives subsequent objection to the testimony. (People v. Jones (1983), 119 Ill. App. 3d 615, 625.) Moreover, the imposition of sanctions for discovery violations is left to the sound discretion of the trial court. Velez, 204 Ill. App. 3d at 324.

In the case at bar, defendant’s objections to Kraning’s testimony and request to make a record concerning the discovery violation were overruled. After hearing Kraning’s testimony, the trial court recessed for the day. The following day, defendant moved for a mistrial, or in the alternative, to strike Kraning’s testimony due to the State’s failure to disclose the statements before trial. The trial court found that the statements did not amount to a confession and that no discovery violation occurred. Based on the trial court’s finding, we do not believe defendant’s failure to request a continuance should preclude review of this issue. We therefore will address the merits of this appeal.

The State maintains that there was no discovery violation where defendant had ample opportunity to interview the witness. Alternatively, the State argues that even if there was a discovery violation under Supreme Court Rule 412(aXii), defendant failed to prove how he was surprised or prejudiced by any alleged noncompliance.

Supreme Court Rule 412(aXii) requires the State to disclose “any written or recorded statements and the substance of any oral statements made by the accused or by a codefendant, and a list of witnesses to the making and acknowledgment of such statements.” (107 Ill. 2d R. 412(aXii).) In People v. Cisewski (1987), 118 Ill. 2d 163, our Illinois Supreme Court set forth the standard to determine whether the State’s failure to comply with the rule entitles defendant to a new trial. The court stated the following:

“Supreme Court Rule 412(aXii) (107 Ill. 2d R. 412 (aXii)) was promulgated to protect a defendant against unfair surprise, unfairness, and inadequate preparation [citation], as well as to afford the defense an opportunity to investigate the circumstances surrounding the statement. [Citation.] The rule is intended to encompass all statements made by a defendant which might have a bearing on the defendant’s guilt or innocence. [Citation.]
*** However, the failure to comply with discovery requirements does not in all instances necessitate a new trial. [Citation.] A new trial should only be granted if the defendant is prejudiced by the discovery violation and the trial court failed to eliminate the prejudice. [Citation.] Among the factors to be considered in determining whether a new trial is warranted are the closeness of the evidence, the strength of the undisclosed evidence, and the likelihood that prior notice could have helped the defense discredit the evidence.” Cisewski, 118 Ill. 2d at 172.

We find that the State’s failure to disclose defendant’s alleged statements constituted a violation of Supreme Court Rule 412(a)(ii). (107 Ill. 2d R. 412(aXii)-) The statement was made by the accused and had a bearing on defendant’s guilt.

However, we do not believe that defendant suffered sufficient prejudice so as to merit a new trial. The purpose of the rule is to protect against surprise and inadequate preparation. Here, defendant had access to the witness and an opportunity to investigate the circumstances surrounding the statements. Kraning made similar statements about defendant’s oral statements at a pretrial hearing. Defendant did not attempt to interview Kraning and determine the nature of his testimony regarding defendant’s oral statements. Moreover, defendant conducted a thorough cross-examination of the witness at trial, thus demonstrating that he was not surprised by the testimony. Lastly, defendant has not demonstrated how any further investigation into his alleged statements would have altered his trial strategy and possibly changed the outcome of this case. See People v. Cisewski (1987), 118 Ill. 2d 163,173.

For the foregoing reasons, we find that the State’s failure to comply with the rule does not necessitate a new trial.

Next, defendant contends that the evidence was insufficient to prove his guilt beyond a reasonable doubt for the murders of the two victims.

“On review, the relevant question is whether, after reviewing 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. Patrick (1990), 205 Ill. App. 3d 222, 226, citing People v. Young (1989), 128 Ill. 2d 1, 49.) “ ‘A criminal conviction will not be set aside on review unless the evidence is so improbable or unsatisfactory that there remains a reasonable doubt of the defendant’s guilt.’ ” People v. Steidl (1991), 142 Ill. 2d 204, 226, quoting People v. Jimerson (1989), 127 Ill. 2d 12, 43.

The State maintains that defendant is clearly guilty of first degree murder under the theory of accountability. “A person is legally accountable for the conduct of another when *** [e]ither before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.” Ill. Rev. Stat. 1987, ch. 38, par. 5 — 2(c).

On balance, we believe the State satisfied its burden of proving defendant’s guilt beyond a reasonable doubt for the murders of Dehn and Michaels under the theory of accountability. Witnesses testified that defendant and Tolliver were the last persons seen with the victims and that both men carried guns on the night the victims were murdered. Defendant’s gun was found at the murder scene. Defendant himself admitted that he was with the victims on the night they were murdered and that he saw Tolliver shoot Michaels in the back of the head while they were in the car. Defendant did not try to stop Tolliver nor did he call for help in an attempt to save the victim. Moreover, testimony from expert witnesses established that only a single drop of blood was found in the car although both victims suffered multiple gunshot wounds. Defendant later testified that neither he nor Tolliver was present when the women were killed. He testified that two other men drove away with the women on the night of the murders.

Expert witnesses testified that Dehn, a double amputee, was carried to an open field where she was shot several times. Witnesses stated that defendant was wearing Dehn’s denim jacket when they left Michaels’ house. Police officers recovered the jacket near the bodies of the victims.

In evaluating the sufficiency of the evidence, it is not the court’s function to retry a defendant. (People v. Steidl (1991), 142 Ill. 2d 204, 226.) “Instead, determination of the weight to be given to witnesses’ testimony, their credibility, and the reasonable inferences to be drawn from the evidence are the responsibility of the fact finder.” Steidl, 142 Ill. 2d at 226.

We believe that the jury properly determined from the circumstances of this case that defendant was an active participant in the crime. Viewing the evidence in the light most favorable to the State, we find that defendant was proved guilty beyond a reasonable doubt of the murders of Michaels and Dehn.

For the foregoing reasons, we affirm the ruling of the circuit court.

Affirmed.

LINN and McMORROW, JJ., concur.