author: JUSTICE GREIMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANGELA YOUNG, Defendant-Appellant.
    First District (3rd Division)
    No. 1 — 90—2357
    Opinion filed June 30, 1993.
    Rehearing denied September 7, 1993.

      Rita A. Fry, Public Defender, of Chicago (Lisa S. Ottenfeld, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, William D. Carroll, and Andrew R. Dalkin, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GREIMAN

delivered the opinion of the court:

Following a jury trial, defendant Angela Young was convicted of first degree murder for the stabbing death of Vanessa Odum and sentenced to 35 years’ imprisonment.

On appeal, defendant asserts that the trial court erred by: (1) failing to quash defendant’s arrest and suppress evidence when it refused to hear evidence regarding the reliability of the two occurrence witnesses who provided the police with information which led to the arrest of defendant; (2) prejudicing the jury against defendant by its alleged maltreatment of defense counsel in the presence of the jury; (3) limiting defense counsel’s questioning of witnesses; (4) refusing to give jury instructions on second degree murder premised on serious provocation and on involuntary manslaughter; (5) allowing the prosecutor to make improper remarks during closing argument; (6) imposing an excessive 35-year sentence; and (7) not declaring the murder statute unconstitutional because it relieves the State from proving every element of murder.

For all the reasons which follow, we affirm defendant’s conviction and sentence and also find that the murder statute is constitutional.

Vanessa Odum, the victim, died of stab wounds. There is no dispute that defendant and the victim had engaged in a fist fight on the night the victim died.

The State’s position throughout the course of this case has been that defendant fatally stabbed the victim during the fist fight. On the other hand, defendant claims that someone else (specifically, Darryl Smith or D’Angelo Allen) stabbed the victim after defendant left the scene of the fight. During trial, defense counsel wanted to show that Smith and Allen were drug dealers but was precluded from doing so.

The following individuals were present at the fight: defendant, the victim, Mae (defendant’s sister), Darryl Smith, D’Angelo Allen, and Leonard Davis.

In her confession, defendant, who was known by her middle name Tawanna, admitted that she had a fist fight with the victim and that she had a knife in her hand during the fight. Defendant’s confession includes the following statement recorded by the police:

“Tawanna raised her right hand and came down on the girl [the victim], but she was only trying to scare the girl and did not mean to stab her, and Tawanna did not know if she had stabbed the girl. *** The girl walked across the street *** and was screaming ***.”

After driving around the block, Tawanna saw the victim still lying in the same place.

Prior to trial, defendant moved to quash her warrantless arrest and suppress her confession. At the hearing on this motion, the trial court heard the testimony of Detective Michael Rowan and the parties stipulated to the contents of the testimony of Detective Jones if he were called to testify.

Detective Rowan testified that he was assigned to investigate the stabbing death of Ms. Odum. In reviewing the original case report on the incident, Rowan discovered that there had been two eyewitnesses to the crime, i.e., Smith and Allen. Rowan brought Smith and Allen to the police station for questioning. Rowan and two other detectives (John Duffy and Jones) interviewed Smith, who indicated he had been a witness to the stabbing and had more information than he had given to the original beat officers. Smith identified the stabber, stated that she was known by the name of Tawanna, and gave the police a description of defendant and her family’s residence but not the exact address. Smith said he saw defendant stab the victim while they were engaging in a fight. Allen recounted the same events in more detail, identifying defendant as the stabber but not aware of defendant’s place of residence.

Smith then accompanied the police and directed them to the home of defendant. Smith remained in a police car with Detective Jones while Rowan spoke to defendant’s grandmother outside the building. The grandmother said that defendant no longer lived with her. Rowan then saw Jones and Smith pointing at a second-floor window where defendant and another woman could be seen sticking their heads out the window. The grandmother ran into the building to the second-floor apartment and three police officers followed. Rowan found defendant hiding under a bed and arrested her.

During cross-examination, Rowan testified that the victim’s mother, Betsy Odum, had told Rowan that she believed Smith and Allen were involved in the death of the victim. After Rowan transported Smith and Allen to the police station, he read them their Miranda warnings.

Also during cross-examination, defense counsel attempted to elicit testimony that two black males had gone to the victim’s house during the day of the stabbing and told the victim’s mother that the victim was going to be physically harmed. The State objected to such evidence as irrelevant and speculative since the two individuals who allegedly visited the victim’s home earlier on the day of the stabbing were never identified. Defense counsel argued that the proffered information impacted on the credibility of Smith and Allen and the reliability of their statements. Defense counsel conceded that he could not show that Smith and Allen were the two men who had gone to the victim’s house before the stabbing but nevertheless stated that Smith and Allen were drug dealers and the two unidentified men who had earlier issued threats to the victim were drug dealers.

The trial court sustained the State’s objection and reasoned that reliability was an issue for trial but was irrelevant in the present hearing. The trial court, in denying defendant’s motion, further explained that if Allen and Smith had been brought before a judge to secure a warrant and had attested that they witnessed the event, the judge would not have inquired into their reliability.

At trial, the testimony of three eyewitnesses (Smith, Allen and Davis) revealed essentially the same events leading to the victim’s death. On the evening of May 11, 1989, Davis was driving defendant and her sister Mae to their mother’s house when they saw Smith at a public telephone booth and Allen in the driver’s seat of a parked car. Defendant asked Davis to stop his car so that she could talk to Smith. While Davis and Mae remained in the car, defendant walked over and talked to Smith and then proceeded to Allen’s car to talk to Allen at the driver’s side of his car.

Defendant began to argue with the victim, who was seated on the passenger side of Allen’s car. As the argument continued, defendant walked around to the passenger side of the car.

When she reached the passenger side of the car, defendant began to swing her arms at the victim’s face, struck the victim several times, opened the car door, grabbed the victim by her hair, and pulled the victim out of the car. A physical struggle ensued between defendant and the victim and attempts to separate the two women failed. Eventually, Smith and Mae pulled defendant off of the victim and got her into Davis’ car. Davis then left with defendant and Mae in his car.

Defendant did not testify at trial. In her confession, defendant stated that she was arguing with the victim, and when she got to the passenger side of Allen’s car, the victim raised the car window on defendant’s hands. After Allen told the victim to get out of the car, the victim opened the car door and defendant hit her. Defendant and the victim struggled inside the car for awhile and then the fight continued outside the car. While she had the knife open in her hand, defendant raised her hand “and came down on the” victim. Defendant did not know that she had stabbed the victim. After being pulled away by Smith, defendant got into Davis’ car. Defendant heard the victim screaming and saw her walk across the street to a parking lot and fall. Davis then drove around the block and defendant saw the victim lying in the same place.

The jury convicted defendant of first degree murder, and the,trial court sentenced her to 35 years in prison.

On appeal, defendant first asserts that in the pretrial hearing on her motion to quash arrest and suppress her confession, the trial court erred in limiting the evidence regarding the reliability of the two witnesses, Smith and Allen, because they had a motive to lie and were suspects in the killing. Absent additional evidence, defendant argues, there was no probable cause to arrest her and her confession should have been suppressed as the fruit of an illegal arrest.

The State contends that in light of the totality of the circumstances, the warrantless arrest of defendant was proper and the evidence tending to show the reliability of the witnesses’ statements was irrelevant.

A reviewing court ordinarily will not disturb the decision of a trial court on a motion to quash and suppress unless its finding is determined to be clearly erroneous. People v. Foskey (1990), 136 Ill. 2d 66, 76, 554 N.E.2d 192.

We examine the totality of the circumstances in determining whether probable cause exists to support a warrantless arrest. People v. Earnest (1991), 224 Ill. App. 3d 90, 95, 586 N.E.2d 449, citing Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S.Ct. 2317.

In Gates, the United States Supreme Court adopted the totality of circumstances approach and abandoned the two-prong test which required a strict analysis of (1) the basis of the informant’s knowledge, and (2) his veracity or reliability. The Gates court held that “an informant’s ‘veracity,’ ‘reliability,’ and ‘basis of knowledge’ are all highly relevant in determining the value of his report *** [but] they should be understood simply as closely intertwined issues that may usefully illuminate the commonsense, practical question whether there is ‘probable cause.’ ” Gates, 462 U.S. at 230, 76 L. Ed. 2d at 543, 103 S. Ct. at 2328.

In considering the validity of a warrantless arrest, the trial court must focus on the information available to the police preceding the arrest to make a probable cause determination. (People v. Adams (1989), 131 Ill. 2d 387, 398, 546 N.E.2d 561.) Although the information relied upon to establish probable cause to arrest must be supported by some indicia of reliability (People v. Trice (1991), 217 Ill. App. 3d 967, 975, 577 N.E.2d 1195), probable cause does not depend on any hard set of legal rules but rather depends on whether the police acted reasonably under the circumstances (People v. Halmon (1992), 225 Ill. App. 3d 259, 276, 587 N.E.2d 1182).

To the extent that it considered the informants’ reliability to be irrelevant, the trial court erred because reliability is a factor to be considered under the totality of circumstances approach. However, the reliability factor alone is not dispositive in a probable cause determination.

The information obtained by Smith and Allen was sufficient to establish probable cause to arrest defendant. Both individuals were eyewitnesses to the crime and identified the killer as Tawanna. With the physical description of Tawanna and the location of her residence provided by Smith and Allen, the police acted reasonably under the circumstances.

In the pretrial hearing, the trial court heard testimony that the police considered Smith and Allen to have been involved in the crime before they picked them up for questioning. With these suspicions in mind, the police gave Smith and Allen their Miranda warnings before interviewing them. Accordingly, the trial court knew the status of Smith and Allen as suspects in making a probable cause determination. Moreover, defense counsel admitted that he could not establish that Smith and Allen were the two men who allegedly visited.the victim’s home to issue threats before the stabbing.

Accordingly, under the totality of the circumstances standard, we find that the denial of defendant’s motion to quash arrest and suppress the confession was not clearly erroneous.

Second, defendant asserts that she was deprived of a fair trial due to the alleged maltreatment of defense counsel by the trial judge throughout the trial in front of the jury. Defendant argues that the jury may have surmised that defense counsel was incompetent or that the defense case was fundamentally flawed, or both.

The State advances three responses: (1) defendant has waived this issue by failing to object to any of the judge’s comments at trial and by making only vague, general allegations of error in her post-trial motion; (2) the trial judge’s remarks were not erroneous; and (3) even if the remarks are deemed to be error, the error is harmless because they did not prejudice or harm defendant.

Absent plain error, both a trial objection and a written post-trial motion raising the issue are required to preserve an alleged error for review. (People v. Enoch (1988), 122 Ill. 2d 176, 190, 522 N.E.2d 1124.) The waiver rule, however, is less rigidly applied where the basis for the objection is the conduct of the trial judge. People v. Nevitt (1990), 135 Ill. 2d 423, 455, 553 N.E.2d 368 (the supreme court considered defendant’s issues concerning the conduct , of the trial judge even though defendant had not raised any issues of judicial impropriety in his post-trial motion).

In the present case, defendant did not object at trial to the judicial remarks now challenged on appeal. In addition, defendant did not raise this issue in her post-trial motion. The closest allegation mentioned in defendant’s post-trial motion states that “[t]he Court improperly injected itself into the case by making its own objections to defendant’s questions.”

Notwithstanding the procedural omissions by defendant, we find that the waiver rule is flexible enough on the authority of Nevitt for us to consider the alleged judicial impropriety in this case.

The first complained-of remark occurred during the cross-examination of Darryl Smith when the defense counsel attempted to ask Smith if the police told him that the police believed he was involved in the victim’s death. Defense counsel posed two questions on this matter. The State objected and the trial judge sustained both objections. The following exchange then occurred:

“THE COURT: Objection sustained, unless you have some specific conversation that you are talking about.
DEFENSE COUNSEL: Specific conversation?
THE COURT: Yes. And not some summarization or—
DEFENSE COUNSEL: It is not a summarization.
THE COURT: —or speculation.”

Thereafter the trial judge granted defense counsel’s request for a sidebar. At the sidebar, defense counsel stated his offer of proof and the court ruled that a statement by the police officer to the witness constitutes hearsay.

The cross-examination of Smith continued and Smith testified that at the police station he was in an interview room with one police officer and that Allen was not present in the room. The second colloquy challenged by defendant then occurred:

“DEFENSE COUNSEL: Were you [Smith] or D’Angelo Allen dealing drugs at the time of this particular incident?
SMITH: No, I do not deal drugs.
DEFENSE COUNSEL: At the time on May 11th, 1989-
ASSISTANT STATE’S ATTORNEY: Objection, asked and answered.
THE COURT: I will allow it. This question, I take it, is another speculation.
DEFENSE COUNSEL: I don’t think it is a speculation, no. I believe—
THE COURT: Wait. Are you going to offer proof on that point?
DEFENSE COUNSEL: I can do that again, sir, yes.
ASSISTANT STATE’S ATTORNEY: Objection.
DEFENSE COUNSEL: I can do that at a sidebar, yes.
THE COURT: No, I want to know.
ASSISTANT STATE’S ATTORNEY: Objection.
THE COURT: In the course of this trial, are you going to offer proof on the point of which you have—
DEFENSE COUNSEL: I expect to.
THE COURT: —you have just — I don’t mean by some hearsay means. I mean evidence.
DEFENSE COUNSEL: I expect that some individuals will say so, yes, will say that.
ASSISTANT STATE’S ATTORNEY: Objection.
THE COURT: Not what you expect. Are you going to offer the proof?
DEFENSE COUNSEL: Can we do this outside the presence of jury? I will explain my position.
THE COURT: I just want to know.
DEFENSE COUNSEL: What I believe is proof. I believe that, yes. I will offer proof that—
ASSISTANT STATE’S ATTORNEY: Objection.
THE COURT: You are going to have someone testify?
DEFENSE COUNSEL: I believe that someone will testify to that fact that someone will—
THE COURT: You don’t sound very sure, but we will let it stand as it is now without striking anything. Defendant’s answer may stand. You may go on.”

On cross-examination of Leonard Davis, the third contested exchange occurred when defense counsel was referring to the time when defendant walked over to Allen’s car on the night of the stabbing:

“DEFENSE COUNSEL: Did you [Davis] know Big D [Allen] at the time?
DAVIS: No. I just knew him, hearing his name on the streets.
DEFENSE COUNSEL: Did you know his reputation?
DAVIS: About on the street.
DEFENSE COUNSEL: Pardon me?
DAVIS: Hearing it on the street.
DEFENSE COUNSEL: Can I have a sidebar for a moment.
(Following proceedings had during sidebar.)
DEFENSE COUNSEL: I asked for sidebar because I was going to ask this young man if his representation, Big D’s [Allen] reputation was that of a drug dealer.
ASSISTANT STATE’S ATTORNEY: I am going to object.
DEFENSE COUNSEL: That is why I asked for a sidebar. When the Court asked me at one point in time whether or not I would be able to produce evidence, it is this young man who told me that Big D [Allen] was,, in fact, a drug dealer and that Twin [Smith] worked for him. He would be the evidence I told you I would produce. And that—
THE COURT: All specious, specious hearsay.
DEFENSE COUNSEL: Well, that is why I came over here as a sidebar.
THE COURT: Yes, objection sustained.
DEFENSE COUNSEL: Thank you.”

The cross-examination of Davis then continued.

The fourth and final colloquy challenged by defendant occurred during cross-examination of Detective Michael Rowan. Rowan testified that when he arrested defendant at her home, he did not recover any bloody clothing or a knife. The following exchange then occurred:

“DEFENSE COUNSEL: Did you [Detective Rowan] ever go back to that home to search for a white jogging suit or any clothing with blood or a knife?
ASSISTANT STATE’S ATTORNEY: Objection.
THE COURT: Objection sustained, unless you are going to offer some evidence on all of these point[s].
DEFENSE COUNSEL: I can’t ask what he did next, if he went back.
THE COURT: You may not ask speculative questions or you will be here for a month??
DEFENSE COUNSEL: I am not asking for speculative, no.
THE COURT: No speculation. If you are going to offer evidence on these points, then you may go into it. If you are not, then they are speculations.
DEFENSE COUNSEL: I believe the evidence will be that he did not go back and I believe it is relevant.
THE COURT: Just a minute. Did you understand my ruling?
DEFENSE COUNSEL: Yes, sir.
THE COURT: Okay. Objection sustained.
DEFENSE COUNSEL: Did you ever go back to the house at 12017 South Lowe when Angela was arrested?
THE COURT: Just a minute. Are you going to offer evidence that he did?
DEFENSE COUNSEL: No, sir.
THE COURT: Then objection — .
DEFENSE COUNSEL: I don’t believe he did. I believe the jury is entitled to know that.
THE COURT: Don’t talk when I an talking to you, sir. Then objection is sustained.”

Based on the above-cited colloquies, defendant argues that the trial court abrogated its duty as impartial referee, became an advocate for the State, made erroneous rulings, communicated to the jury its impatience with defense counsel and belittled defense counsel. This judicial conduct, according to defendant, deprived her of a fair trial and thus constitutes reversible error.

To insure "that an accused receives a fair and impartial trial by a jury, a trial judge must not interject opinions, comments, or insinuations reflecting prejudice against or favor toward any party. (People v. Williams (1991), 209 Ill. App. 3d 709, 718, 568 N.E.2d 388.) A trial judge may convey improper or prejudicial impressions to the jury by displaying a hostile attitude toward defense counsel, by inferring that defense counsel’s presentation is unimportant, or by suggesting that defense counsel is attempting to present a case in an improper manner. People v. Harris (1988), 123 Ill. 2d 113, 137, 526 N.E.2d 335.

To constitute reversible error, however, the defendant bears the burden of demonstrating that the trial judge’s comments were a material factor in the conviction or were such that an effect on the jury’s verdict was the probable result. Harris, 123 Ill. 2d at 137; People v. Batchelor (1990), 202 Ill. App. 3d 316, 328, 559 N.E.2d 948.

Defendant directs our attention to People v. Mitchell (1992), 228 Ill. App. 3d 167, 592 N.E.2d 175, which held that the defendant was entitled to a new trial due to the prejudicial effects of judicial bias. In Mitchell, the trial judge flagrantly displayed bias against the defendant throughout the trial by making disparaging remarks regarding defense evidence and theories, interrupting sua sponte and thus undermining defense counsel’s opening statement and examination of witnesses, representing testimony for the State, manifesting a hostile attitude toward defense counsel, and making inconsistent rulings of law in favor of the State.

We find Mitchell distinguishable from the present case. From our review of the entire record and the particular remarks cited by defendant, the impropriety, egregiousness and pervasiveness of the judge’s comments and attitude toward the defense in Mitchell are simply not present in the case at bar.

We find nothing improper about the third contested exchange between defense counsel and the trial judge because it occurred during a sidebar. It is axiomatic that any comments made outside the presence or hearing of the jury cannot affect the jurors. See People v. Amos (1990), 204 Ill. App. 3d 75, 86, 561 N.E.2d 1107.

We find that the remaining challenged remarks by the trial judge were inappropriate and should not have been made because they indicated that defense counsel was failing to offer proper proof and evidence. The judge’s comments in the presence of the jury were particularly unnecessary since defense counsel requested a sidebar to explain his position but was ignored by the trial judge in this request. A trial judge must exercise a high degree of care to avoid influencing the jury, because jurors are “ ‘ever watchful of the attitude of the trial judge and his influence upon them is necessarily and properly of great weight.’ ” People v. Sprinkle (1963), 27 Ill. 2d 398, 403, 189 N.E.2d 295, quoting People v. Marino (1953), 414 Ill. 445, 450, 111 N.E.2d 534.

However, the remarks were made while ruling on objections made by the State during defense counsel’s cross-examination of witnesses. A court’s method of ruling upon an objection may indicate an opinion as to the validity of a party’s position; however, the context of the judge’s remark must be considered in determining whether any prejudice resulted. (People v. Velasco (1989), 184 Ill. App. 3d 618, 640, 540 N.E.2d 521; People v. Merz (1984), 122 Ill. App. 3d 972, 980, 461 N.E.2d 1380.) Moreover, a trial judge may act to clarify and expedite the examination of a witness without prejudicing the defendant. People v. Nelson (1991), 206 Ill. App. 3d 956, 967b, 571 N.E.2d 879.

Although it would have been better if some of the comments had not been made, from our review of the record, we find that these comments were not a material factor in defendant’s conviction or so prejudicial as to constitute reversible error.

Defendant next asserts that the trial court violated her right to present a defense when it limited defense counsel’s questioning on seven particular occasions involving six different witnesses, i.e., Detective Rowan, Darryl Smith, Dr. Nancy Jones (the medical examiner), D’Angelo Allen, Leonard Davis, and Officer Steven Shoup. Defendant also submits that the trial court failed to allow impeachment of Betsy Odum.

The State contends that defendant waived these arguments because she did not raise these issues with adequate specificity in her motion for a new trial. We agree.

In her post-trial motion for a new trial, defendant made the following pertinent allegations in paragraphs five and seven:

“5. The Court erred in improperly limiting defense cross examinations of the State witness.
* * *
7. The Court erred by not allowing defense counsel to perfect impeachment.”

A written post-trial motion must set forth with sufficient specificity the errors relied upon for reversal or else such alleged errors are waived on review. People v. Ford (1987), 163 Ill. App. 3d 497, 502, 516 N.E.2d 766; People v. Thomas (1984), 121 Ill. App. 3d 883, 891, 460 N.E.2d 402; Ill. Rev. Stat. 1989, ch. 38, par. 116 — 1(c) (a motion for a new trial “shall specify the grounds therefor”).

The Illinois Supreme Court explained the purpose of the post-trial specificity rule as threefold:

“First, it allows the decision maker who is most familiar with the events of the trial, the trial judge, to review his decisions without the pressure of an ongoing trial and to grant a new trial if, on reconsideration, he concludes that his earlier decision was incorrect. [Citations.] Second, by requiring the statement of the specific grounds urged as support for the claim of error, the rule allows a reviewing court to ascertain from the record whether the trial court has been afforded an adequate opportunity to reassess the allegedly erroneous rulings. Third, by requiring the litigants to state the specific grounds in support of their contentions, it prevents them from stating mere general objections and subsequently raising on appeal arguments which the trial judge was never given an opportunity to consider. [Citations.]” Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 349-50, 415 N.E.2d 337.

This court has applied the Brown criteria and determined that a defendant’s motion for a new trial is inadequate where the specific alleged untoward and improper remarks made by the prosecutor in closing arguments are not designated in the motion. (People v. Turk (1981), 101 Ill. App. 3d 522, 532-33, 428 N.E.2d 510.) In Turk, the post-trial motion merely claimed that the prosecutor’s arguments were “inflammatory, prejudicial and invaded the defendant’s Sixth Amendment right to counsel and exhorted the jury to convict the defendant based on matters which [are] dehor [sic] the record in violation of defendant’s rights under the Sixth and Fourteenth Amendments of the United States Constitution.” Turk, 101 Ill. App. 3d at 533.

Similarly, the supreme court concluded that the defendant waived any claims regarding the improprieties before and after issuance of a search warrant where the defendant merely claimed in his post-trial motion for a new trial that the trial court “erred in denying defendant’s Motion to Quash the Search Warrant and to Suppress Evidence Illegally seized.” (People v. Edwards (1991), 144 Ill. 2d 108, 133, 579 N.E.2d 336.) The supreme court found that these claims were waived because “[defendant does not indicate how the trial court ‘erred’ or otherwise provide a legal basis for his argument” in his post-trial motion. Edwards, 144 Ill. 2d at 133.

A post-trial motion which stated in relevant part that the “court erred in admitting improper evidence and erred in overruling the objections of the defendant” was found to be “so general as to defeat the purposes envisioned by section 116 — 1.” People v. Bailey (1979), 77 Ill. App. 3d 953, 955-56, 404 N.E.2d 258.

In the present case, we find that the bare statements made in defendant’s post-trial motion fail to state with sufficient specificity the arguments now advanced as error. The meager allegations that the trial court erred “in improperly limiting defense cross examination of the State witness” and “by not allowing defense counsel to perfect impeachment” are no more meaningful than the general allegations which were rejected in Brown, Turk, Edwards, and Bailey. Regarding the first allegation, defendant would have us accept the bare contention as adequate to review seven different occurrences involving six different witnesses even though no names are indicated and no subject matter is presented. Regarding the second allegation, no specifics are advanced to determine which witness and what type of impeachment to which defendant was attributing error. The obvious omissions of the name of a witness and the subject matter of the alleged errors are fatal for the purposes of the rule mandating specificity.

Moreover, defendant failed to advance any arguments regarding his post-trial motion during the hearing held on his sentencing and his motion for a new trial. Instead, defendant specifically waived argument on his post-trial motion and thus did not afford the trial court any opportunity to reexamine its earlier rulings which is the basic purpose of a post-trial motion. See Brown, 83 Ill. 2d at 351; Turk, 101 Ill. App. 3d at 533.

Lax post-trial practice evidenced by post-trial motions which are insufficiently specific has been condemned because it effectively defeats the underlying purpose of the post-trial motion, i.e., to permit the trial court to review and correct alleged errors that occurred during trial. People v. Camp (1984), 128 Ill. App. 3d 223, 232, 470 N.E.2d 540.

Contentions made in a post-trial motion which fails to state with specificity the reasons urged on appeal as reversible error are waived absent application of the limited plain error exception. (People v. Jointer (1989), 180 Ill. App. 3d 364, 371, 535 N.E.2d 1039.) From our review of the record, wé find no justification to invoke the plain error exception. Edwards, 144 Ill. 2d at 133; Jointer, 180 Ill. App. 3d at 371.

Defendant next asserts that the trial court erred by refusing her tendered jury instructions on second degree murder premised on serious provocation and involuntary manslaughter.

The State contends that these two jury instructions were properly denied because the evidence failed to establish either “serious provocation” by the victim to warrant a second degree murder instruction or “reckless” conduct by defendant to warrant an involuntary manslaughter instruction.

The second degree murder statute provides, in relevant part:

“(a) A person commits the offense of second degree murder when he commits the offense of first degree murder *** and either of the following mitigating factors are present:
(1) At the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by the individual killed ***; or
(2) At the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles [of self-defense], but his belief is unreasonable.
(b) Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.” Ill. Rev. Stat. 1989, ch. 38, par. 9 — 2.

In the present case, the instruction for the offense of second degree murder based on an unreasonable belief in self-defense was given to the jury. Instructions on both forms of second degree murder, i.e., unreasonable belief in self-defense and serious provocation, are appropriate where warranted by the evidence. People v. Lewis (1992), 229 Ill. App. 3d 874, 880, 594 N.E.2d 414; Ford, 163 Ill. App. 3d at 503.

A defendant is generally entitled to an instruction on any recognized defense where sufficient evidence exists for a reasonable jury to find in his favor. People v. Everette (1990), 141 Ill. 2d 147, 156, 565 N.E.2d 1295.

The statute clearly establishes that to support a finding of second degree murder based on serious provocation, the defendant must have been “acting under a sudden and intense passion resulting from serious provocation by the individual killed.” Ill. Rev. Stat. 1989, ch. 38, par. 9 — 2(a)(l).

A jury instruction on second degree murder due to serious provocation is required where there is evidence of mutual combat. (People v. Austin (1989), 133 Ill. 2d 118, 125, 549 N.E.2d 331 (the offense of voluntary manslaughter was replaced with the offense of second degree murder effective July 1, 1987); Lewis, 229 Ill. App. 3d at 879-80 (case law pertaining to voluntary manslaughter and murder under the prior murder statute are applicable to first degree murder and second degree murder under the new law).) Mutual combat is defined as “a fight or struggle which both parties enter willingly or where two persons, upon a sudden quarrel and in hot blood, mutually fight upon equal terms and where death results from the combat.” Austin, 133 Ill. 2d at 125.

In Austin, the Illinois Supreme Court held that the defendant was not entitled to a serious provocation instruction because the victim did not enter the struggle willingly and the fight was not on equal terms. (Austin, 133 Ill. 2d at 125.) In Austin, a bus passenger (the defendant) and a bus driver (the deceased victim) fought after the defendant refused to pay the full fare. The altercation continued between the defendant and the driver until the defendant pulled a gun from her waistband and fired a shot into the floor of the bus. The parties then continued their struggle outside the bus until the defendant shot and killed the driver.

In rejecting the defendant’s argument that a serious provocation instruction was required based on mutual combat, the supreme court found that “[o]ne who instigates combat cannot rely on the victim’s response as evidence of mutual combat sufficient to mitigate the killing of that victim from murder to manslaughter.” (Austin, 133 Ill. 2d at 126.) In addition the court found that “the provocation must be proportionate to the manner in which the accused retaliated” and shooting the bus driver “was an act completely out of proportion to the provocation.” (Austin, 133 Ill. 2d at 127.) “The crime is murder when a defendant attacks a victim with violence out of all proportion to the provocation” especially where the murder is committed with a deadly weapon. Austin, 133 Ill. 2d at 127.

Mere words generally are not sufficient to show provocation. (People v. Brown (1991), 222 Ill. App. 3d 703, 720, 584 N.E.2d 355.) The evidence upon which defendant relies to support a serious provocation instruction must rise above the level of a mere factual reference or witness’ comment. Austin, 133 Ill. 2d at 125.

In the present case defendant argues that her statement alone provided sufficient evidence to warrant the serious provocation instruction because she said that the first physical encounter between she and the victim occurred when the victim closed the car window on her hand, that the victim was trying to pull her into the car, that the victim opened the car door to get out, and that the victim was winning the fight.

However, defendant’s statement also reveals that defendant walked up to the driver’s side of the car to talk to Allen and then she and the victim began a verbal argument. When defendant said she was going to get into the car, she walked to the passenger side of the car while still arguing with the victim and the victim then raised the car window which caught defendant’s hands. According to defendant’s statement, Allen told the victim to get out of the car and when she opened the car door to comply, defendant hit her.

Defendant also relies on the testimony of Allen and Davis to show that the victim exited the car. Although defendant apparently believes that this fact is indicia of the victim’s consent to do battle with defendant, defendant ignores the testimony which established that defendant opened the passenger door, was hitting the victim and pulling her out of the car by her hair.

The testimony of all three occurrence witnesses (Allen, Smith and Davis) paints a picture of defendant as the armed instigator of the physical fight and the victim as an unarmed and unwilling participant.

At trial Allen testified that when defendant reached the passenger side of the car, she started swinging her arms at the victim and was trying to pull her out of the car by grabbing the victim by her hair. The victim, according to Allen, “was trying to protect herself.”

Smith testified to the same events, i.e., that defendant went to the passenger door, opened the car door, grabbed the victim by her hair, started swinging at the victim’s face, struck the victim about four times, and pulled the victim out of the car. Smith further testified that as the fight continued, defendant picked the victim up and threw her on the top of the hood of the car. At that time, Smith saw a knife in defendant’s hand and heard the victim “hollering about she’s stabbing me.” Smith and Allen attempted to break up the fight but were unsuccessful. Defendant then sat on top of the victim while she was on the ground, repeatedly struck her, and stabbed the victim. Smith testified that the victim “tried to get up to go home because she was trying to run.”

Davis testified that when defendant approached the passenger side of the car, she began to swing both of her arms at the victim inside the car and that defendant, not the victim, opened the car door.

Defendant also observes that the toxicology report on the victim showed that the victim had one of the largest quantities of cocaine ever seen by the medical examiner. Defendant argues that such a high level of cocaine could have caused the victim to be very aggressive.

The record, however, does not reveal any evidence to show that the victim was aggressive other than the verbal assaults leveled against defendant and the blows struck during the fist fight;

Defendant argues that People v. Leonard (1980), 83 Ill. 2d 411, 415 N.E.2d 358, supports her contention that a second degree murder instruction was warranted in the present case. We disagree.

In Leonard, an armed security guard was fatally shot while he struggled with the defendant over the defendant’s handgun. The undisputed testimony of three eyewitnesses revealed that each combatant was holding a part of the handgun while they struggled. Although none of the eyewitnesses saw an exchange of blows between the two men, there was evidence that the defendant suffered a laceration of the lower lip which required sutures. After the security guard was shot, the defendant pushed him over a banister, yelled “Die mother f- — , die,” and did not attempt to flee. The supreme court found that a voluntary manslaughter instruction should have been given because the evidence showed that the defendant had demanded entry into the premises in a threatening manner, suffered physical injuries, was operating under an intense passion given his statements after the shooting, and was engaged in a struggle over a weapon.

Unlike the victim in Leonard, the victim in the case at bar was unarmed. Unlike the defendant in Leonard, defendant in the instant case fled the scene of the fight and offered no evidence to indicate that she had suffered any physical injury. Unlike the scenario in Leonard, there is no evidence in the present case to suggest that defendant and the victim were struggling for possession of the weapon.

Before a second degree murder instruction can be given, the trial court must decide if enough evidence of serious provocation has been presented to put the issue to the jury. (People v. Robinson (1989), 192 Ill. App. 3d 225, 231, 548 N.E.2d 674.) Evidence of slight provocation is not sufficient, but rather the provocation must be serious enough to excite a reasonable person to intense passion. (Robinson, 192 Ill. App. 3d at 231.) The mutual combat aspect of provocation does not apply as a matter of law where a defendant on slight provocation attacks a victim with violence that is out of proportion to the provocation. Austin, 133 Ill. 2d at 126-27; People v. Pierce (1991), 223 Ill. App. 3d 423, 436-37, 585 N.E.2d 255; People v. Lockhart (1990), 201 Ill. App. 3d 700, 714, 558 N.E.2d 1345; People v. Dower (1991), 218 Ill. App. 3d 844, 853, 578 N.E.2d 1153; Ford, 163 Ill. App. 3d at 503.

From our thorough examination of the record, we find that the trial court properly rejected a jury instruction on second degree murder based on serious provocation because the evidence did not support such an instruction.

Defendant next asserts that instructions on involuntary manslaughter should have been given based solely on her statement that she forgot the knife was in her hand and did not mean to stab the victim. We disagree.

To justify an instruction on involuntary manslaughter, there must be some credible evidence in the record to show that the defendant “recklessly” performed the actions which caused the death of the victim. (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 3(a); People v. Foster (1987), 119 Ill. 2d 69, 87-88, 518 N.E.2d 82; People v. Riddle (1988), 175 Ill. App. 3d 85, 89, 529 N.E.2d 713.) Recklessness is statutorily defined as a conscious disregard of a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. Ill. Rev. Stat. 1989, ch. 38, par. 4 — 6.

An involuntary manslaughter instruction is not warranted where the evidence reveals that the defendant voluntarily and wilfully commits an act which has the natural tendency to cause death or great bodily harm as such acts demonstrate an intent to kill or injure the victim. Foster, 119 Ill. 2d at 87-88; People v. Mocaby (1990), 194 Ill. App. 3d 441, 449-50, 551 N.E.2d 673.

Any assertion of reckless or inadvertent conduct would be defeated by the nature of the alleged criminal conduct. (People v. Jones (1987), 157 Ill. App. 3d 106, 112-13, 510 N.E.2d 116.) In Jones this court held that an involuntary manslaughter instruction was not warranted where the victim died from stab wounds incurred during a fight with the defendant and found that such situation “was not an instance of death brought on by defendant’s reckless conduct; it was a death caused by a fight.” Jones, 157 Ill. App. 3d at 113.

We recognize that on remand from the supreme court, this court reconsidered the Austin case in People v. Austin (1990), 207 Ill. App. 3d 896, 566 N.E.2d 492, and held that the defendant was entitled to an instruction on involuntary manslaughter. The evidence which led to this result in Austin, however, is distinguishable from the record we now encounter in the present case.

In Austin, the defendant testified that the victim tried to grab the gun while they were fighting and the defendant jerked the gun away, apparently causing the gun to discharge. The Austin defendant did not remember either pulling back the hammer or pulling the trigger of the gun. Austin, 207 Ill. App. 3d at 899.

In the case at bar, no evidence was presented to suggest that defendant and the victim struggled for possession of the knife. Instead the evidence demonstrates that defendant never shared or released possession of the knife but rather she purposefully removed the knife from her jacket, intentionally caused the blade to open by hitting the knife against her leg, and continued to swing and hit the victim. To support her assertion that an involuntary manslaughter instruction was warranted, defendant relies solely on her statement that she forgot the knife was in her hand and, therefore, could not mean to stab the victim. With the exception of only this brief lapse in recalling her stabbing the victim, defendant’s recollection of all other events before, during, and after the fight remained remarkably clear. The record belies any argument that defendant’s state of mind was reduced to that of recklessness. See Riddle, 175 Ill. App. 3d at 90 (no involuntary manslaughter instruction was warranted where the record did not evince that the defendant’s power of reasoning had been suspended or reduced to the state of recklessness by intoxication).

We find defendant’s reliance on People v. Santiago (1982), 108 Ill. App. 3d 787, 439 N.E.2d 984, is misplaced. In Santiago, the defendant fired a gun at an unoccupied, parked car with the intent of igniting its gas tank to create a diversion to break up a fight involving several persons who were swinging bats and sticks at the defendant’s friends who were unarmed. The court concluded that an involuntary manslaughter instruction was warranted because the likelihood of injury or death was remote since the car was empty and there was no evidence that the unintended victim was standing near the empty car. Santiago, 108 Ill. App. 3d at 801-03.

In the case at bar, the likelihood of injury or death was not remote since defendant’s actions clearly indicated that the victim was the intended subject of her knife. The record reveals that defendant had to reach into her coat pocket to pull out the knife and had to slap the knife against her leg to cause the blade to open due to the difficulty she had in opening the knife. Under the circumstance of this case, we find that the trial court did not err in refusing to instruct the jury on involuntary manslaughter.

Defendant next asserts that the State made two improper arguments during rebuttal argument: (1) that defense counsel failed to present evidence that Smith and Allen were drug dealers and (2) that the State misrepresented the law.

The State contends that (1) defendant has waived this issue for lack of specificity in her motion for a new trial; and (2) these two comments were proper and were based on the comments of defense counsel and the evidence presented at trial.

Paragraph 16 of defendant’s motion for a new trial states:

“16. The Assistant State’s Attorneys made prejudicial inflammatory and erroneous statements in closing argument designed to arouse the prejudices and passions of the jury prejudicing the defendant’s right to a fair trial.”

Failure to designate the specific prosecutorial remarks which are challenged as error in a post-trial motion generally waives the issue for review. (People v. Lopez (1989), 181 Ill. App. 3d 216, 220, 536 N.E.2d 922.) The following general statements included in post-trial motions have been found insufficient to preserve the issue for appeal: the prosecutor “made prejudicial inflammatory and erroneou[s] statements in closing argument designed to arouse the prejudice and passions of the jury” (People v. Pendelton (1989), 185 Ill. App. 3d 768, 777, 542 N.E.2d 386); the “prosecutor made prejudicial, inflammatory and erroneous statements in closing arguments” (People v. David (1986), 141 Ill. App. 3d 243, 261, 489 N.E.2d 1124); the trial court “erred in allowing the State to make a prejudicial and improper closing argument” (Camp, 128 Ill. App. 3d at 223); the prosecution’s closing argument contained “prejudicial, inflammatory, and erroneous statements designed to arouse the passions and prejudices of the jury’’ (People v. Thomas (1983), 116 Ill. App. 3d 216, 220, 452 N.E.2d 77); and portions of the prosecution’s closing argument were complained of as “prejudicial, inflammatory, and erroneous” and “designed to arouse the prejudices and passions of the jury” (People v. Buford (1982), 110 Ill. App. 3d 46, 55, 441 N.E.2d 1235).

The contention in the post-trial motion in the case at bar is indistinguishable from those assertions made and rejected as too general in the cases cited above. Accordingly, we find that defendant has waived the issue of the prosecutor’s closing argument for failure to set forth the specific remarks asserted to be prejudicial. Furthermore, we find that the plain error doctrine need not be invoked because the evidence was not closely balanced so that the alleged error could have deprived defendant of a fair trial.

In the sixth issue raised on appeal, defendant asserts that the trial court abused its discretion in sentencing her to 35 years in prison.

The record reveals that defendant failed to object to her sentence at the sentencing hearing and she did not contest her sentence in any subsequent motion. Accordingly, defendant has waived this issue on review. (People v. Hartzol (1991), 222 Ill. App. 3d 631, 646, 584 N.E.2d 291; People v. Williams (1989), 180 Ill. App. 3d 294, 305, 535 N.E.2d 993.) Even assuming there was no waiver, as in Hartzol and Williams, we would not find that the trial court abused its discretion in imposing a 35-year sentence because this sentence falls within the statutory guidelines and the record shows that the trial court considered all pertinent information and the factors in aggravation and mitigation.

Lastly, defendant asserts that the scheme of the Illinois murder statute (Ill. Rev. Stat. 1989, ch. 38, pars. 9 — 1, 9 — 2) is unconstitutional because it violates due process by relieving the prosecution of its burden to prove beyond a reasonable doubt every element of murder.

This argument has been considered and rejected in numerous appellate decisions. (E.g., People v. Mitchell (1991), 221 Ill. App. 3d 926, 583 N.E.2d 78; People v. Brown (1991), 218 Ill. App. 3d 890, 578 N.E.2d 1168; People v. Wright (1991), 218 Ill. App. 3d 764, 578 N.E.2d 1090; People v. Willis (1991), 217 Ill. App. 3d 909, 577 N.E.2d 1215.) Defendant does not advance any grounds to necessitate reconsideration of this issue.

Affirmed.

TULLY, P.J., and CERDA, J., concur.


source: Caselaw Access Project

author: JUSTICE McNULTY

license: Public Domain

text:
      In re SALMONELLA LITIGATION
    First District (5th Division)
    Nos. 1-88-2535, 1-89-0927, 1-90-0992, 1-90-1713, 1-90-1962 cons.
    Opinion filed June 4, 1993.
    Modified opinion filed August 6, 1993.
    Rehearing denied August 10, 1993.

      William J. Harte, Ltd., of Chicago (William J. Harte, of counsel), for appellants.
    Pope & John, Ltd., of Chicago (Michael J. Howlett, Jr., and Sandra D. Oliszewicz, of counsel), for appellee.
   JUSTICE McNULTY

delivered the opinion of the court:

This appeal involves the trial court’s denial of the claims of 77 plaintiffs filed pursuant to the “Salmonella Personal Injury Claims Facility Agreement” (the Agreement). Plaintiffs in the case at bar are members of a consolidated class of persons who experienced injuries or damages arising from dairy products purchased from Jewel Companies, Inc. (Jewel), and contaminated with the salmonella bacteria. Jewel conceded its liability for compensatory damages to this class of individuals and on April 30, 1987, entered into the aforementioned Agreement, which set forth a procedure for the submission of an “Official Claim Form” (claim form) by a cutoff date or “bar date.” The Agreement further provided that the court could, in its discretion, and in the interests of justice, permit the filing of claim forms after the bar date.

Plaintiffs in the present appeal were entitled under the provisions of the Agreement to file and to participate in the settlement of their claims. For various reasons, however, plaintiffs were unable to file their claims prior to the bar dates set by the court. (By order of April 30, 1987, the trial court initially designated August 15, 1987, as the bar date. By order of December 10, 1987, the trial court ordered that all claims filed from August 17, 1987, through September 15, 1987, were to be considered as though timely filed.) Plaintiffs filed motions in the trial court seeking the discretion of the trial judge as provided by the Agreement in allowing their late claims to be filed. The trial judge, however, denied these motions, and plaintiffs appealed.

On appeal, plaintiffs argue that the trial judge abused his discretion in denying their late-filed claims. They maintain that such discretion is not “unbridled” (Virginia Corp. v. Russ (1975), 27 Ill. App. 3d 608, 613, 327 N.E.2d 403, 407) and further allege that the trial judge acted without any rational basis whatsoever in denying their motions while allowing the claims of other plaintiffs who gave identical reasons for their late filings. While agreeing with plaintiffs that an abuse of discretion would occur if no reasonable person would take the view adopted by the trial court (In re Marriage of Petrovich (1987), 154 Ill. App. 3d 881, 507 N.E.2d 207), defendants maintain that the trial judge’s decisions were reasonable, that his evaluation of one late claim did not set a precedent for future claims, and that under any standards his rulings should withstand the scrutiny of this court.

In our review of the various rulings from which plaintiffs appeal, we consider not whether we agree with the decisions of the trial court, but whether such decisions were reached arbitrarily or made in a principled manner so that substantial injustice would not occur. Our evaluation necessarily takes into account the factual differences and similarities of the claims denied by the trial court.

In the late claim hearing of April 14, 1988, the trial judge denied the claims of the following plaintiffs.

1. CAROL BAUSSER

Carol Bausser filed her claim on October 13, 1987. She testified in her affidavit and at the April 14, 1988, hearing that although she had filed a timely claim for her minor son, she was confused about whether she herself was eligible to file as she did not have a positive culture for the salmonella bacteria. The trial judge denied her claim although he allowed the claims of Anthony Borre filed on the same day due to his confusion over eligibility. Borre explained that he was confused about his eligibility as he thought his children’s previous settlements foreclosed further litigation. In response to Borre’s claim, the trial judge stated, “Well, he was under a misapprehension. I’ll allow that one.” (The trial judge also allowed the claims of Jay Cabera, filed September 17, 1987, and Cynthia Kramer, filed September 18, 1987, which were filed late due to confusion over eligibility.) Since Bausser’s and Borre’s claims were filed on the same day and presented almost the identical reasons for lateness (confusion over eligibility and filing for another family member), the denial of one and the allowance of the other is arbitrary. Consequently, we reverse the decision of the trial court as to Carol Bausser.

2. WILLIAM BAUSSER

William Bausser, like his wife, Carol, and Anthony Borre, filed a claim on October 13, 1987, because he was confused over eligibility. His claim was denied by the trial judge. For the same reasons we reverse the denial of Carol’s claim, we also reverse the denial of William’s claim.

3. KATHLEEN BENNETT

Kathleen Bennett filed her claim on December 11, 1987. She testified that her claim was delayed because she was preoccupied with personal problems. (Her husband had left her and three small children and her house was put up for sale to avoid foreclosure.) The trial judge denied Bennett’s claim. On appeal, Bennett claims that her case is similar to that of Robert Full, who also filed late because of personal problems (the birth of a new child and a demanding work schedule). Full’s claim, however, is distinguishable from Bennett’s as it was filed on September 20, 1987, just five days late. However, the claim of Laverne Julian is factually similar to Bennett’s — Julian filed late because she was preoccupied with personal matters (a breast biopsy). Her claim was filed only five days before Bennett’s on December 6, 1987. The trial judge allowed Julian’s claim. On this basis, it was unreasonable and arbitrary to deny Bennett’s claim, and this decision is therefore reversed.

4. WENDY CAVANAUGH

Wendy Cavanaugh filed late — on December 1, 1987, as she also was preoccupied with personal matters (the birth of a second child). Like Kathleen Bennett, she compares her claim to that of Robert Full, who also filed late because of personal problems. Like Bennett’s claim, Cavanaugh’s claim was filed substantially later than Full’s and is therefore not comparable for this reason. However, Cavanaugh’s claim, based on preoccupation with personal problems, is factually comparable to Julian’s claim, which was filed even later and was allowed by the trial judge. The denial of Cavanaugh’s claim is therefore unreasonable and it is reversed.

5. THOMAS DUNAWAY

Thomas Dunaway filed a late claim on September 19, 1987. He claimed that he knew nothing about the class action suit against Jewel until he received a telephone call from the committee in early September 1987. He was informed that correspondence from the committee had been returned to the committee by the post office because of an incorrect address. Although the trial judge denied Dunaway’s claim, he allowed the claim of Don Houser, filed December 12, 1987 (three months later). Hauser, like Dunaway, claimed that he had never received a claim form, as he had moved from Glen Ellyn to Addison, Illinois, and his mail had not been forwarded. Despite the arguments of opposing counsel that Hauser had been within the public notice area throughout the pertinent time frame, the trial judge allowed the claim. Dunaway’s claim is factually similar to Hauser’s and was, in fact, filed earlier in time. The trial judge’s denial of this claim is therefore unreasonable and is reversed.

6. JOHN FITZGERALD

John Fitzgerald, like Thomas Dunaway and Don Hauser, filed a late claim because he did not receive a timely notice. Fitzgerald had moved and had not furnished his doctor with his new address. As a result the committee was given the wrong address. Fitzgerald’s claim was filed on January 5, 1988, just 19 days later than Hauser’s. We do not find that this is an adequate basis on which to distinguish or to deny Fitzgerald’s claim. This decision is therefore reversed.

7. RICHARD HEIBERGER

Richard Heiberger filed on December 7, 1987, because he never received any notice and was unaware that he needed to file a claim form until he read an article in the Chicago Tribune. Heiberger compares his claim to that of the Browns, who also filed late because they were unaware of the litigation. The Browns’ claim is distinguishable from Heiberger’s as it was filed on September 22, 1987, some two months earlier. Heiberger also compares his claim to that of Smith, who filed on October 1, 1987. Smith’s claim was also filed two months earlier, and additionally, Smith had trouble receiving his mail as he had no locks on his mailbox. Because Heiberger’s claim is distinguishable from the Browns’ and Smith’s, the trial judge did not abuse his discretion in denying this claim. This decision is therefore affirmed.

8. DIANE HOGAN

Diane Hogan filed late, on September 28, 1987, because she was preoccupied with personal problems (her father had died and she thought she needed medical reports in order to file). The trial judge’s denial of her claim is not reasonable based on his disposal of the Full and Julian claims (filed September 20, 1987, and December 6, 1987, respectively). This decision is therefore reversed.

9. ARNOLD JEFFRIES

Arnold Jeffries filed on November 27, 1987, because he never received notice of the lawsuit since he had moved five times. Considering the trial judge’s treatment of the Hauser claim (allowed even though filed on December 27, 1987, because of lack of notice), as well as our decision as to Richard Heiberger, the denial of Jeffries’ claim cannot stand and is therefore reversed.

10. JAMES JOHNSON

James Johnson filed his claim form late, on October 5, 1987, as he mistakenly believed that the questionnaire he had completed earlier was the only necessary form to furnish. Our review of the late claims filed reveals that the trial judge routinely denied claims which were filed late because of a misunderstanding as to the claim form. While we may not have selected this criterion as a basis by which to distinguish claims, we cannot say that it was an abuse of discretion to do so. This decision is therefore affirmed.

11. BETTY LARSEN

Betty Larsen did not file until October 6, 1987, because she was confused over her eligibility as she had no medical expenses. Since the trial judge allowed Anthony Borre’s claim (which was filed later — October 13, 1987) based on a confusion over eligibility argument, it was irrational and arbitrary to deny Larsen’s claim. This decision is therefore reversed.

12. AND 13. ROBERT LENHART AND PATRICIA LENHART

Robert and Patricia Lenhart filed on February 8, 1988. They stated that they had never received claim forms and were unaware of the deadline for filing claims. Although they compare themselves to the Browns, who did not become aware of the litigation until they learned of it on television and subsequently obtained and filed a claim form, we find the cases distinguishable on the basis of time filed. The Browns’ claim was filed on September 22, 1987, just one week after the extension of the deadline to September 15, 1987. The Lenharts’ claims were not filed until February 2, 1988, some 4½ months later. It was reasonable for the trial judge to distinguish these cases on the basis of time filed and his decision to deny the Lenharts’ claims cannot be seen as arbitrary. We therefore affirm this decision.

14. HILWETH MASOUD

Hilweth Masoud filed late on December 2, 1987, as she had lost her claim form when she moved. She maintains that her case is similar to those of others, such as Full (filing September 20, 1987), who filed late because they were preoccupied with personal problems. WTiile the trial judge did allow considerable latitude to claimants with troubling personal problems (Julian, Full, Bennett), he did not extend the time limits to those who lost or misplaced claim forms (Theresa Cade, Judy Filipello, Donna Maire, Thomas Sykes). We do not find this distinction to be arbitrary or irrational. We therefore affirm the denial of Masoud’s claim.

15. WILLIAM MILLAR

William Millar filed late on November 12, 1987, because he thought that the questionnaire was the only form necessary to be filed. As we noted earlier, the trial judge routinely denied claims which were filed late due to confusion over the appropriate forms. We therefore affirm the denial of Millar’s claim.

16. AND 17. RUSSELL VALLIMONT AND CYNTHIA VALLIMONT

The Vallimonts filed on January 11, 1988. They alleged that they had moved three times since the salmonella outbreak and had never received any information about filing their claims until January 1988. Since the trial judge allowed the claim of Hauser (filed December 27, 1987) for substantially the same reason, it was arbitrary to deny the Vallimonts’ claims. These decisions are therefore reversed.

18. COVACK WILLIAMSON

Covack Williamson filed on December 1, 1987, stating that he had never received an individual notice as he had moved several times during the filing period. Because the trial judge allowed other 1987 claims which were late due to lack of notice because of a move, we find that it was improper to deny this one. Therefore we reverse the denial of Williamson’s claim.

LATE CLAIM HEARING: JUNE 9, 1988

1.. ANDERSON ABERNATHY

Anderson Abernathy filed a late claim on September 24, 1987, because he had never received a claim form or notices regarding the litigation. The trial judge denied Abernathy’s claim although he did allow the claim of Don Hauser (filed December 27, 1987), Patrick Smith (filed October 1, 1987) and Nancy and Richard Brown (filed September 22, 1987) for substantially the same reason. Since there is no rational way to distinguish Abernathy’s claim from Hauser’s, Smith’s and the Browns’, we reverse the decision of the trial judge denying this claim.

2. AND 3. DEBORAH AND CHARLES ANDREWS

Deborah and Charles Andrews filed on December 4, 1987. They stated that they had submitted questionnaires earlier and had believed that claim forms were unnecessary. Since the trial judge routinely denied all claims filed late for this reason (Johnson, Millar) we cannot find that he abused his discretion in denying the Andrews’ claims, and we therefore affirm these decisions.

4. ROBERT BERNTH

Robert Bernth filed on February 2, 1988, stating that he did not receive an official claim form until he called the committee and requested one. Although Bernth compares his claim to that of the Browns (filed late, no notice), Bernth’s claim was filed so much later in time that it is distinguishable on that basis. This decision is therefore affirmed.

5. THERESA CADE

Theresa Cade filed late on November 24, 1987, as she had misplaced the information that she needed to complete the claim form. Since the trial judge systematically denied claims filed late for this reason, we do not find his denial of Cade’s claim to be an abuse of discretion. We therefore affirm this decision.

6. SHARON DENNISTON

Sharon Denniston filed on September 18, 1987, and alleged that she had not received notice of the August 15 deadline. The trial judge denied her claim although he allowed the claims others filed within a day of the deadline (Vasquez, Palmere, Zalinskas) as well as claims of others who stated that they had not received notice (Hauser, Smith, Browns). It was therefore improper to deny Dennis-ton’s claim and, accordingly, we reverse this decision.

7. RICHARD DERKS

Richard Derks filed on December 14, 1987, as he had not received notice of the cutoff date because he had moved and the mail was not properly forwarded. The trial judge denied this claim although he allowed those of similarly situated claimants such as Hauser. We therefore find the denial of Derks’ claim to be improper and reverse this decision.

8. JUDY FILIPPELLO

Judy Filippello filed late on September 29, 1987, because she had misplaced her claim form. As the trial judge routinely denied claims involving misplaced or lost forms (Masoud, Maire, Sykes), his denial of Filippello’s claim was not arbitrary or irrational. We therefore affirm this decision.

9. JERRY HALL

Jerry Hall filed his late claim on October 9, 1987. He thought he had completed all necessary forms when in fact he had only completed the questionnaire. Since the trial judge systematically disallowed claims for this reason (Johnson, Millar, Andrews), his denial of Hall’s claim does not constitute an abuse of discretion. This decision is therefore affirmed.

10. ALAN JESIONOWSKI

Alan Jesionowski filed on December 10, 1987, because he was confused about his eligibility and thought he had to have tested positive for salmonella. Although the trial judge allowed the claims of other claimants (Cabera, Kramer, Borre) who were confused over their eligibility, these claims were filed substantially earlier in time (September 17, 1987, September 18, 1987, and October 13, 1987, respectively) and are distinguishable on this basis. It was not an abuse of discretion for the trial judge to disallow Jesionowski’s claim. This decision is therefore affirmed.

11. VERNETTA KERBY-HILL

Vemetta Kerby-Hill filed a late claim on September 22, 1987. She alleged that she had moved because she got married, her parents forwarded her mail, but she did not receive the claim form. The trial judge denied her claim although he allowed the claims of others who moved and did not receive their forms (Hauser, filed December 27, 1987). His denial of this claim is therefore arbitrary and this decision is reversed.

12. ALICE JORDAN

Alice Jordan filed on December 1, 1987, because she was confused over her eligibility as she had no medical bills. Since her claim was filed substantially later than others allowed for the same reason (Cabera, Kramer, Borre), the trial judge did not abuse his discretion in denying this claim. This decision is affirmed.

13. SARAH LUBECK

Sarah Lubeck filed on January 26, 1988. She did not receive a claim form or learn of the need to file until January 1988, when the committee informed her that it had not received a claim from her. She alleges that her case is similar to that of Cora and Eddie Harris and Carmella Carlson, who had some contact with the committee but did not receive timely claim forms. Cora Harris’ claim was postmarked December 5, 1987, and Eddie Harris’ claim was postmarked December 6, 1987. Most significantly, Carmella Carlson’s claim was postmarked February 9, 1988. The trial judge denied Lubeck’s claim although he allowed the claims of others who were similarly situated. His denial of this claim is arbitrary and this decision is reversed.

14. DONNA MAIRE

Donna Maire filed on October 5, 1987, because she had misplaced the correspondence regarding the bar date. The trial judge disallowed her claim. Since he routinely disallowed claims involving misplaced or lost forms (Masoud, Filippello, Sykes), his denial of this claim is not arbitrary and is affirmed.

15. earl McCauley

Earl McCauley filed on October 2, 1987. He filed late because he was confused about his eligibility and thought that he needed to be culture confirmed. The trial judge denied McCauley’s claim although he allowed the claims of others similarly situated (Cabera, Borre, Kramer). This decision is therefore reversed.

16. LILY MOORE

Lily Moore filed on January 12, 1988, as she was confused over her eligibility. Although the trial judge allowed the claims of Cabera, Kramer and Borre, filed late because of confusion over eligibility, these claims were all filed substantially earlier than Moore’s (September 17, 1987, September 18, 1987, and October 13, 1987, respectively). Staleness is a reasonable basis on which to distinguish a claim. We therefore affirm the trial court’s denial of this claim.

17. DAN PIETRZYK

Dan Pietrzyk filed on February 9, 1988, as he had not received a claim form or any correspondence regarding the class action. Although he alleges that his claim is similar to that of the Browns (filed September 22, 1987), which was filed late due to lack of notice, the difference in time makes Petrzyk’s claim distinguishable. The trial judge did not abuse his discretion in denying this claim. The decision is therefore affirmed.

18. ERNESTINE POLK

Ernestine Polk filed on September 17, 1987, because she never received notice of the bar date. The trial judge denied her claim although he allowed those of others who filed within a day of the cutoff (Vasquez, Palmere, Zalenskas) as well as those of others who filed late because they did not receive notice (Browns). Because similarly situated claimants received different treatment, we find this decision to be arbitrary and therefore determine that it must be reversed.

19. AND 20. BETTY REINSCH AND LAWRENCE REINSCH

Betty and Lawrence Reinsch filed on September 24, 1987, as they had completed the questionnaire in 1985 and thought that the claim form was a duplication of this material. Since the trial judge routinely denied claims which were late due to confusion between the claim form and the questionnaire (Johnson, Millar, Andrews), his denial of these claims is not arbitrary and is therefore affirmed.

21. ELIZABETH REYNOLDS

Elizabeth Reynolds filed on September 23, 1987, because she was confused over her eligibility as she had no medical expenses. The trial judge denied her claim although he allowed those of similarly situated claimaints (Cabera, Borre, Kramer). This decision is therefore arbitrary and is reversed.

22. ANN SCOTT

Ann Scott filed on November 3, 1987. She testified that she gave the claim form to her husband in a timely manner and asked him to mail it. However, she found the form under the car seat in November. Since the trial judge routinely denied claims which involved lost or misplaced forms (Masoud, Filippello, Maire, Sykes), his denial of this claim is not an abuse of discretion and is therefore affirmed.

23. MARTIN P. SIMMONS

Martin P. Simmons filed on September 16, 1987. He alleged that he filed late because of his demanding work and study schedule. The trial judge denied his claim although he had allowed those of other claimants who were one day late (Cabera, Kramer) or who were preoccupied with personal problems (Full, Julian). The denial of Simmons’ claim is therefore improper and is accordingly reversed.

24. DENISE SNELL

Denise Snell filed on December 7, 1987, because she had moved five times in the year and a half prior to the hearing and never received the claim form. Since the trial judge allowed the claims of others who had moved or who had otherwise had trouble receiving mail (Hauser, Smith), it was improper to deny Snell’s claim. This decision is therefore reversed.

25. THOMAS SYKES

Thomas Sykes filed on October 3, 1987. He was late because he had misplaced the claim form under the car seat. Since the trial judge routinely disallowed claimants who had misplaced forms (Masoud, Filippello, Maire), it was not an abuse of discretion to deny Sykes’ claim. This decision is therefore affirmed.

26. CHARLES TOMASEK

Charles Tomasek filed late, on February 2, 1988, as he was confused about what to file. He testified that when the claim forms came with the deadline notice, he gave the medical bills and records to his wife and asked her to complete his claim form. In early 1988, he learned that a claim form was never filed on his behalf and so he filed one. The trial judge’s denial of this claim is consistent with his treatment of other cases involving mistakes made over claim forms. Consequently, this decision is affirmed.

27. CARMEN WATERS

Carmen Waters filed a late claim on September 25, 1987, as she had been preoccupied with personal matters (her divorce). The trial judge improperly denied this claim as he had allowed the claims of other similarly situated claimants. This decision is therefore reversed.

LATE CLAIMS HEARING, MARCH 2, 1989

1. DELORES CRAWFORD

Delores Crawford filed on December 24, 1987. She filed late because she had moved and never received the claim forms. The denial of this claim was improper as the trial judge allowed the claims of other similarly situated plaintiffs who had trouble receiving their mail (Hauser, Smith). We therefore reverse the denial of this claim.

2. DELORES DOUGLAS

Delores Douglas filed on July 18, 1988, because she was preoccupied with personal matters (breast cancer, heart attack). Although the trial judge did allow other late claimants who had pressing personal problems (Full, Julian), Douglas’ claim was filed substantially later in time than the others and the trial judge was, therefore, justified in denying it on this basis. This decision is affirmed.

3. JULIA C. KLEINOPS

Julia C. Kleinops filed on September 26, 1987. She filed late because she did not receive the letter regarding the deadline for filing. It was improper for the trial judge to deny her claim as he had allowed the claims of others who were similarly situated (the Browns). We therefore reverse this decision.

4. MARLA MARQUEZ

Marla Marquez filed a late claim on November 30, 1987, as she was confused over her eligibility, having previously signed a release with Jewel, and therefore did not return the forms she received from the committee. Although the trial judge allowed other late claimants who were confused over their eligibility (Cabera, September 17, 1987; Kramer, September 18, 1987; and Borre, October 13, 1987), these claims were filed substantially earlier in time than Marquez’s claim and are thus distinguishable on this basis. Marquez also argues that because she moved to California in September 1986, she never received notice of the cutoff date. However, based on her confusion over eligibility, such notice would have been to no avail. The denial of this claim is therefore affirmed.

5. SHIRLEY A. MERTZ

Shirley A. Mertz filed on October 6, 1987, as she was confused over her eligibility. The trial judge improperly denied her claim, as he had allowed the claims of others who were similarly situated (Cabera, Borre, Kramer). This decision is therefore reversed.

6. AND 7. MARILYN J. MILLER AND RONALD J. MILLER

Marilyn and Ronald Miller filed on September 29, 1987. They had filed questionnaires earlier and had thought they were claim forms. Since the trial judge routinely denied late claimants who were confused about the questionnaire and the claim form (Johnson, Millar, Andrews), it was not an abuse of discretion to deny this claim. This decision is therefore affirmed.

8. ALAN MILLER

Alan Miller filed on October 5, 1987, as his family had forgotten to mail the original claim form. The trial judge did not abuse his discretion in denying this claim as he had denied the claims of other similarly situated claimants (Masoud, Filippello, Maire, Sykes). This decision is therefore affirmed.

9. OPAL MOORE

Opal Moore filed on January 7, 1988, as she was living in temporary housing and had trouble receiving her mail. The trial judge improperly denied her claim as he allowed other claims filed this late in time which involved problems of receiving mail (Hauser, December 27, 1987). This decision is reversed.

10. VIRGINIA MULLERY

Virginia Mullery filed on January 7, 1988, as she had submitted a questionnaire previously and did not realize that she was required to submit a claim form. It was not an abuse of discretion to deny this claim, as all claims submitted late due to confusion between the questionnaire and claim form were denied (Johnson, Millar, Andrews). This decision is therefore affirmed.

11. CYNTHIA NELSON

Cynthia Nelson filed January 8, 1988, as she was preoccupied with personal problems (a divorce). Although the trial judge did allow the claims of Full (September 20, 1987) and Julian (December 6, 1987), filed late bécause of personal problems, Nelson’s claim was filed almost a month later than either of these. Based on this distinction, it was not unreasonable for the trial judge to deny Nelson’s claim. This decision therefore is affirmed.

12. LINDA OLSON

Linda Olson filed on January 25, 1988, as she was confused about her eligibility because her husband and four children had received a settlement from Jewel. The trial judge did not abuse his discretion in denying this claim as it was filed so much later than other factually similar claims. This decision is affirmed.

13. FRANK OLSON

Frank Olson filed on November 23, 1987, as he was confused about his eligibility. The trial judge did not abuse his discretion in denying this claim as it was filed substantially later in time (one month) than others allowed for the same reason. This decision is affirmed.

14. KARL SCHAVE

Karl Schave filed on September 30, 1987. He had not received his claim form earlier as he had moved to Oklahoma. Because the trial judge allowed the claims of other plaintiffs who had filed late due to trouble receiving the claim form through the mail (Hauser, Smith), it was improper to deny Schave’s claim. This decision is therefore reversed.

15, 16 AND 17. JUDY SHEPARD, MARION SHEPARD, AND ROLAND SHEPARD

The Shepards filed on March 2, 1988, as they had not received notice earlier. They were well-identified class members who had received a notice of class action in October 1985, which stated that if they wished to remain in the class no further action was necessary. The Shepards compare their claims to those of Cora and Eddie Harris and Carmella Carlson. Cora Harris’ claim was postmarked December 5, 1987; Eddie Harris’ claim was postmarked December 6, 1987; and Carmella Carlson’s was postmarked February 9, 1988. The Shepards’ claims were filed only 22 days after that of Carlson, a difference in time insufficient upon which to rationally distinguish their claims from that of Carlson. The denial of the Shepards’ claims is reversed.

LATE CLAIMS HEARING, FEBRUARY 21, 1990

1. ERIC BOSSARD

Eric Bossard filed on October 8, 1987. He was a minor at the time. His father had filed the questionnaire for him and Eric was unsure about what other forms needed to be filed. Eric subsequently died on August 18, 1988. In denying this claim the trial judge inappropriately remarked, “The child is no longer with us anyway.” Due to the unusual circumstances surrounding this filing, we find that it was improper to deny Eric Bossard’s claim. This decision is reversed.

2. MARTHA BUNCH

Martha Bunch filed on January 13, 1988, because she was never notified of the class action or the procedures necessary to participate. When she learned of the litigation, she requested information on how to participate and filed the necessary forms. Although Martha Bunch compares her claim to that of the Browns, whose late-filed claim was allowed due to their lack of notice, the Browns filed on September 22, 1987, and their claim is distinguishable on that basis. The trial judge’s denial of the claim is not unreasonable and is affirmed.

3. KATHLEEN CLEMENT

Kathleen Clement filed her late claim on May 19, 1989, as she was confused over eligibility because she had no medical records. Although she compares her claim to those of Cabera, Kramer and Borre, which were allowed due to confusion over eligibility, Clement’s claim is not similar as it was filed so much later in time. The trial judge’s denial of this claim is therefore rational and is affirmed.

4. JOSEPHINE ECHOLS

Josephine Echols died on January 28, 1987, and her son filed for her on September 20, 1987. He stated that he had trouble obtaining her medical records. The trial judge denied this claim although he allowed the claim of Donna Keto, filed on September 20, 1987, because she had to wait for medical records. Because of the unique circumstances surrounding this claim, and because the trial judge allowed the claim of a similarly situated plaintiff, we find that it was improper to deny Josephine Echols’ claim. This decision is reversed.

5. EVELYN IMOBERSTEG

Evelyn Imobersteg filed on December 12, 1987, because she had not received notice of the class action and did not know how to participate. Although Imobersteg compares her situation to that of the Browns, who also filed late due to lack of information, she neglects to note that the Browns’ claim was filed on September 22, 1987, almost three months earlier. Since the claims are distinguishable on this basis, the trial judge’s decision denying Imobersteg’s claim is not an abuse of discretion.

6. AND 7. DANIEL JACKSON AND EDDIE JACKSON

Daniel and Eddie Jackson filed on October 21, 1987, as they traveled and did not receive their mail or notice on a timely basis. Since the trial judge allowed other claims which were late due to trouble receiving mail (Hauser, filed December 27, 1987), it was improper to deny the Jacksons’ claims. These decisions are therefore reversed.

8. MARY LOU McALISTER

Mary Lou McAlister filed her late claim on October 19, 1989, as she was unaware of the litigation before this time. This claim was filed so much later than others which were allowed because of a claimant’s lack of awareness (Browns, September 22, 1987) that the trial judge’s denial cannot be seen as arbitrary. This decision is therefore affirmed.

9. GYRTHA NAVARETTE

Gyrtha Navarette filed on February 11, 1988, because she was confused about her eligibility and thought she had to test positive to be eligible. Although the trial judge did allow a number of late claimants who were confused over eligibility, he did not allow any this late in time. Since staleness is a rational basis for distinguishing claims, it was not an abuse of discretion to deny this claim. This decision is therefore affirmed.

LATE CLAIM HEARING, MARCH 29, 1990

1. BETTY JANE BOYD

Betty Jane Boyd filed on June 22, 1988, as she was confused about her eligibility, had no medical expenses, and was preoccupied with personal problems. The trial judge did not abuse his discretion in denying her claim, as he denied all others filed this late in time. This decision is affirmed.

2. MARGARET CAMELLINO

Margaret Camellino filed on October 10, 1987, as she had not received a claim form. The trial judge denied her claim although he had allowed the claim of the Browns filed just 18 days earlier due to lack of notice. Under these circumstances, it was improper to deny Camellino’s claim. This decision is therefore reversed.

3. DIANE GAITAN

Diane Gaitan filed on August 18, 1988. She alleges that her claim is comparable to those of others who had attempted a timely family filing, namely, Marcellous and Marcus Brown. Marcellous Brown’s claim was postmarked May 25, 1988. Marcus Brown’s claim was postmarked May 27, 1988. Gaitan's claim was filed more than two months later. It was reasonable for the judge to distinguish these cases on the basis of time filed and his decision to deny Gaitan’s claim cannot be seen as arbitrary. The decision of the trial court is affirmed.

4. ESTELLA HENDERSON

EStella Henderson filed on May 19, 1988, as she had health problems and was unable to file earlier. It was not an abuse of discretion to disallow this claim, as it was filed so much later in time than others which were allowed late due to preoccupation with personal problems (Julian, filed December 6, 1987). This decision is affirmed.

5. DALE JUSTIN

Dale Justin filed July 6, 1988, because he was confused about his eligibility. It was not an abuse of discretion to disallow this claim, as others filed this late in time for this reason were similarly denied. This decision is affirmed.

6. JERRY LEIS

Jerry Leis filed on December 3, 1987. He gave two separate reasons for his late filing. Initially, he stated that he did not file timely because his forms were sent to his son in Florida by mistake. Additionally, he explained that he had initially submitted his forms on August 14, but when he learned that there was no record of these forms he resubmitted a copy of the original form dated August 14, but postmarked December 3, 1987. The trial judge disallowed this claim." This case is factually similar to Hauser (filed December 27, 1987, because he moved and did not timely receive a claim form) or Willie Contreras, who filed on January 30, 1988, but alleged that an earlier claim form dated August 14, 1987, had not been received. Based on these comparable claims, it was improper to deny this claim. This decision is therefore reversed.

7. CAROL BOWIE MARASA

Carol Bowie Marasa filed on January 12, 1988, as she had difficulty in obtaining the information necessary to complete the form. It was not an abuse of discretion for the trial judge to deny this claim as he denied other claims filed this late in time for similar reasons. This decision is therefore affirmed.

8. MARGERY PALERMO

Margery Palermo’s claim was filed on March 18, 1988. Since she was terminally ill at the time, her husband testified in her behalf that she had been listed on his timely filed claim form. Palermo compares her claim to others where a timely family filing was attempted, namely, claims of Marcellous and Marcus Brown (postmarked May 25, 1988, and May 27, 1988). The decision to disallow Margery’s claim was inconsistent with the trial court’s rulings allowing late filed claims where an attempted family filing was made before the bar date. The trial court allowed the claims of Marcellous and Marcus Brown under essentially identical circumstances. In fact, the claims of Marcellous and Marcus Brown were filed more than two months after Margery’s claim was filed. Therefore, the decision of the trial court is reversed.

9. PAULINE B. PERSHING

Pauline B. Pershing filed on January 20, 1988, as she did not know she had to file a claim form. Although the trial judge did allow the claim of the Browns, also filed late due to lack of notice, the Browns’ claim was filed substantially earlier in time (September 22, 1987) and is distinguishable on this basis. This denial is therefore affirmed.

10. KRISTINE PITTMAN-KILBURG

Kristine Pittman-Kilburg filed on September 16, 1987, as she had been preoccupied with personal problems. Due to his treatment of similarly situated claimants (Julian, Full), the judge’s denial of Pittman-Kilburg’s claim was improper. We therefore reverse this decision.

11. ARLENE STIDHAM

Arlene Stidham filed on April 30, 1988, as she had no earlier knowledge of the class action. It was not an abuse of the judge’s discretion to deny this claim as he denied other claims filed this late in time for this reason. This decision is therefore affirmed.

12. CLOYD REEVES

Cloyd Reeves filed on November 24, 1987, as he was preoccupied with personal problems and had been hospitalized during the time for filing and was thus unable to obtain the information necessary to complete the claim forms. Due to his treatment of other claims filed this late because of preoccupation with personal problems (Full, Julian), the judge’s denial of this claim was improper. This decision is therefore reversed.

LATE CLAIM HEARING, MAY 5, 1990

1. ANNA CLAAR

Anna Claar filed on February 27, 1990, as she had moved from Illinois to Delaware in December 1985, and in 1987 she moved from one address to another address in the same city. She testified that she never received a claim form and lost touch with the legal proceedings. In February 1990, Claar contacted plaintiffs’ counsel and obtained and submitted a claim form as quickly as possible. Claar compares her claim to those of Matthew Adams, Mark Lobaugh and Leslie Saumweber, all of whom moved outside the area of public notice and never received a claim form. However, Adams filed on October 15, 1987. Lobaugh filed on December 22, 1987. Saumweber filed on February 15, 1988. Claar’s claim was filed more than two years later than all of these claims. It was reasonable for the judge to distinguish these cases on the basis of time filed and his decision to deny Claar’s claim cannot be seen as arbitrary. The decision of the trial court is affirmed.

2. MILTON CONTRERAS

Milton Contreras filed on January 30, 1988. He said that he had filed a claim form prior to August 15, 1987. When he did not receive any acknowledgement, he called the committee, found out that there was no record of his claim, and resubmitted a claim form postmarked January 30, 1988. Although the trial judge denied Milton’s claim, it allowed his brother’s (Willie Contreras’), which was submitted under identical circumstances. Since there is no rational basis by which to distinguish these identical claims, we must conclude that this decision was improper. Therefore, we reverse this decision.

3. ALMA NOWOBILSKI

Alma Nowobilski filed on January 5, 1988, and explained that she had been preoccupied with a demanding work schedule (she was required to work 10 to 12 hours a day) and consequently did not hear or see any media response regarding the bar date. Although the trial judge did allow the claims of the Browns (September 22, 1987), who did not receive notice, as well as the late filed claims of Full (September 20, 1987) and Julian (December 6, 1987), because they were preoccupied with personal problems, none of these claims were filed as late as Alma Nowobilski’s claim, and her claim is therefore distinguishable on this basis. The trial judge did not abuse his discretion in disallowing this claim, and therefore we affirm this decision.

LATE CLAIM HEARING, JUNE 27, 1990

1. LARRELL RILEY

Larrell Riley died in December 1986. His mother, Annie Riley, filed a claim form on his behalf on December 20, 1987. She stated that she had not filed on time because during the filing period she was hospitalized on several occasions. The trial judge denied this claim although he allowed those of Full and Julian, who also filed late because they were preoccupied with personal problems. Since there is no reasonable basis by which to distinguish Riley’s claim from, those of Full and Julian, we find that the judge’s decision was improper and accordingly reverse this determination.

2. DAWN SEMYCK

Dawn Semyck filed on March 7, 1988. She explained that she had moved three times in 1987 and that her mail was not properly forwarded. Although Semyck compares her claim to that of Hauser which was filed late due to a move and failure to receive mail, Hauser’s claim was filed on December 27, 1987, some three months earlier, and is distinguishable on this basis. The trial judge’s decision is not arbitrary and is affirmed.

3. TYRONE SMITH

Tyrone Smith filed on February 11, 1988, as he was confused over his eligibility. He had been a minor at the time of the outbreak and his mother did not submit a claim form on his behalf as he had not been tested. When he learned that he was eligible, Tyrone submitted a claim. Although the trial judge allowed late claims due to confusion over eligibility (Cabrera, September 17, 1987; Borre, October 13, 1987; and Kramer, September 18, 1987), he denied Tyrone’s claim. Tyrone’s claim is distinguishable from the other claims which were allowed due to confusion over eligibility as it was filed so much later in time. The trial judge’s denial of this claim is therefore affirmed.

For the reasons set forth above, the various decisions of the trial court on the sundry claims of the additional plaintiffs are affirmed in part and reversed in part.

Affirmed in part and reversed in part.

MURRAY and COUSINS, JJ., concur.

       Justice Cousins has read the briefs in this appeal in place of Justice Lorenz, who has retired.