author: PRESIDING JUSTICE BUCKLEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. J.C. JONES, Defendant-Appellant.
    First District (1st Division)
    No. 1 — 89—2382
    Opinion filed December 21, 1992.

      Rita A. Fry, Public Defender, of Chicago (Ira Sheffey, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Margaret J. Faustmann, and Clare T. McEnery, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Following a jury trial, defendant J.C. Jones was found guilty of aggravated criminal sexual assault. The trial judge sentenced defendant to 25 years in the Blinois Department of Corrections. The issues defendant raises on appeal are: (1) that he was denied a fair trial when the prosecutor argued that his post-arrest silence was evidence of his guilt; and (2) that he was denied a fair trial because the prosecutor made various statements during closing argument which (a) unjustly attacked defense counsel, (b) were calculated to inflame the passions of the jury, and (c) were misstatements of the evidence.

At the time that this assault was alleged to have occurred, the victim, 14-year-old B.A., was living in an apartment with her mother, her brother, the defendant, and the defendant’s eight-month-old son. B.A. testified that on July 4, 1988, at approximately 7 p.m., her uncle drove her to the apartment from a barbecue at his house. The rest of the family had attended another barbecue at the home of defendant’s sister from which they had not returned. B.A. testified that she played alone for several hours on the porch and then went inside to fix something to eat. She stated that while she was cleaning up, defendant returned with his son. Defendant put the chain on the door and told B.A. to fix the baby a bottle. According to B.A., while she was feeding the baby, defendant said he wanted to talk to her in the bedroom. She replied that they could talk right there in the living room, but defendant insisted they go into the bedroom. B.A. testified that she complied because she was afraid and defendant’s manner and tone of voice indicated it was an order. According to B.A., once they were in the bedroom defendant threatened to cut her throat with a razor if she did not take off her clothes. B.A. stated that when they were both naked, defendant got on top of her and “stuck his penis in [her] vagina.” When he finished, B.A. said that defendant told her to get dressed and make him some popcorn. After the incident, either defendant or B.A. called her mother from the bedroom. Her mother was drunk and did not want to come home that night. B.A. stated she could not tell her mother what had happened because defendant was right next to her.

B.A. testified that, after making the popcorn for defendant, she was able to slip the chain off the door and flee the apartment without defendant’s knowledge. She ran a couple of blocks to a public telephone on 55th and State and called her uncle. She told him that defendant had raped her. Her uncle picked her up approximately 10 minutes later and took her to the police station. After she was interviewed by the police, she was taken to Wyler Children’s Hospital (Wyler’s) for an examination. She also testified that she did not have a boy friend, had never before engaged in sexual intercourse, and was crying throughout the entire ordeal.

On cross-examination, B.A. stated that defendant had been living with her mother for three years. Both defendant and B.A.’s mother were heavy drinkers who frequently argued with each other. B.A. stated that she had lived with her aunt for a while after defendant slapped her for siding with her mother in a fight. B.A. also explained that the reason she did not use the public phones across the street from her apartment when she escaped after the incident was because she was afraid defendant would be coming after her. She also stated that she did not go to a neighbor’s apartment or to the police station which was just two blocks away in the other direction because she was not thinking clearly.

Dr. Susan Gerber examined B.A. at Wyler’s at approximately 3:30 a.m. on July 5, 1988. She stated that B.A. was upset and withdrawn and that she told her she had been raped by defendant. Her examination revealed a fresh abrasion to the hymenal area and a laceration to the right side of the vulva. Dr. Gerber also noticed a “whitish discharge.” She stated that the injuries were consistent with someone who had just had intercourse. On cross-examination, Dr. Gerber admitted that “it’s possible” to have lacerations even after consensual sex.

Pamela Fish, a technician employed by the police crime lab, analyzed the semen found in B.A.’s vaginal smear. Her tests showed that defendant was a type O secretor and the sperm found inside B.A. came from a type O secretor. B.A. was not a type O secretor. Statistically, this means that defendant was included within the 39% of the black male population who could have donated the sperm.

B.A.’s uncle testified that when he picked up the victim from the phone booth she was shaking and crying and her clothes were not fitting properly.

Officer Murray testified that he spoke with B.A. and her uncle on the morning of July 5, 1988. He stated that he had B.A. repeat her story several times in order “to see if there were any discrepancies in it and there wasn’t [sic].” He then drove B.A. to the hospital and proceeded on to defendant’s apartment. No one responded to his “repeated knocking and calling.” He returned on July 6 and July 7, but got no response from the apartment. On July 7, however, acting on an informant’s tip, Murray and his partner proceeded to the home of defendant’s brother, where they located and arrested defendant.

Christina Coppage, the live-in girl friend of defendant’s brother, testified that defendant arrived at their home at approximately 3 a.m. on July 5, 1988. She stated that she overheard defendant tell his brother that he did not rape B.A. and that B.A. had given him sex.

Donna Hendricks, a Department of Children and Family Services (DCFS) worker who interviewed B.A., testified that B.A. told her she had been raped by defendant. She stated that to her recollection, B.A. told her that defendant had threatened her with a knife.

Defendant testified that on July 4, 1988, he left the barbecue at his sister’s house early because he and B.A.’s mother had gotten into a fight. At approximately 11 p.m. he arrived home with his son. He stated that he discovered B.A. in the kitchen with a young boy. He did not know the boy’s name, but he had seen him in the neighborhood. He told the boy to leave, because B.A. was not allowed to have men over at that time of night when her mother was not home. After the boy left, defendant went into the bedroom to chánge the baby’s diaper and he noticed that the bed sheets had been changed. According to defendant, B.A. told him that the boy had cut his finger and she had spilled mercurochrome on the sheets while treating it. Defendant stated he retrieved the old sheets and noticed red spots on them. Defendant testified that B.A. then began to cry and admitted she had had sex with the boy in the bed. According to defendant, B.A. begged him not to tell her mother. Defendant stated, however, that he did call her mother to have her come home. B.A. also talked to her mother on the phone, but her mother did not want to come home. Defendant stated he then tried to call her back and that B.A. left the apartment while he was on the phone. He testified that it was not unusual for B.A. to leave the apartment late at night when she anticipated getting a beating.

Defendant stated he went to sleep about 5 a.m. and denied hearing the police at the door that morning. He said he left for his brother’s home the next morning after B.A.’s mother returned in order to cool off after the fight he and B.A.’s mother had had the previous night. He stated he found out on July 5, while at his brother’s house, that B.A. had accused him of rape. He denied raping B.A. or threatening her with a razor blade. He also testified that other than greeting the police officers, he never made any statements to the police or to the assistant State’s Attorney.

Detective Stewart was called by the State to rebut defendant’s testimony. He testified that he interviewed B.A. on July 5, 1988, at Wyler’s. He stated that B.A. told him that defendant had used a razor blade to threaten her. He also said that he interviewed defendant the morning defendant was arrested. According to Stewart, he advised defendant of his Miranda rights and asked him if he wanted to talk about the case. Defendant said he would talk about the case and he denied sexually assaulting B.A. According to Stewart, defendant told him that B.A. was making the story up because he had had an argument with her mother. Additionally, over strenuous defense objection, Stewart testified that defendant never related to him the story defendant told at trial that he had found a boy in the apartment with B.A. when he returned on July 4 and that B.A. had had sex with that boy. Additionally, Stewart testified that he was present at a later conversation between defendant and Assistant State’s Attorney O’Con-nor. He stated that defendant told O’Connor “basically the same thing that he had told me.” He testified that defendant never told O’Connor that he had found a boy in the apartment with B.A. or that B.A. had told him that she had had sex with this boy.

During closing argument, the prosecutor commented on defendant’s failure to tell the police upon his arrest about the presence of the boy in the apartment with B.A. Defendant’s objection was overruled. The prosecutor also made reference to defense counsel in his closing argument. The defendant’s general objection was overruled. The defense also objected to certain statements made by the prosecutor in argument which were allegedly “inflammatory” and which misstated the evidence. These objections were also overruled.

After being convicted of aggravated criminal sexual assault, defendant filed a motion for a new trial and a motion in arrest of judgment. Both motions were denied.

Defendant’s first contention on appeal is that he was denied a fair trial when the prosecutor argued that his post-arrest silence was evidence of his guilt. Defendant first contends that the following statement which the prosecutor made in closing argument was improper and violated his due process rights:

“What does he say to the police after he is arrested 3 days later ***[?] What does he say then? Does he say to Detective Stewart [B.A.] had a boy in the apartment. I caught her and I threw him out. And then she told me they had sex. No. He had every chance in the world to say that to the detectives. This is after he’s been arrested and he is in the police station. Now they are asking him for his story. Never says it. Because he hasn’t thought of it yet. That is why.”

Defendant also argues that the following comment in the prosecutor’s rebuttal argument was improper:

“I caught her in a house with a boy ***. Don’t you think that [sic] would be the first words off his tongue? *** But he didn’t say that. But after he has a year and he figured out, well, I can’t have consensual sex with a 14-year old because that is still against the law, I can’t sit there and tell about this fight with the mother because, yeah, I remember. No, [B.A] didn’t know about the fight. I have to come up with something else.”

Defendant asserts that these references to his post-arrest silence violated his constitutional right to remain silent under Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240. In arguing against reversal, the State first maintains that defendant has waived this argument by failing to raise it in his post-trial motion. We agree with the State.

It is well established in Illinois that to preserve a perceived trial error for review, defendant must make a timely trial objection and then renew that objection in a written post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 187, 522 N.E.2d 1124, 1130.) Defendant asserts that he made a contemporaneous trial objection to the prosecutor’s comments during closing argument which was wrongly overruled. However, after reviewing the record, it is not clear whether defendant’s general objection at trial was to the prosecutor’s references to defendant’s post-arrest silence or whether it was to a statement by the prosecutor which defense counsel believed misstated the evidence. Nonetheless, it is clear that defendant did not raise the issue in his post-trial motion as required by Enoch and, therefore, has waived the question on review.

Under Supreme Court Rule 615(a), however, a reviewing court may take notice of plain errors affecting substantial rights even though not properly preserved by trial counsel. (134 Ill. 2d R. 615(a).) Under the plain error exception to the waiver doctrine, a reviewing court will address an issue not properly preserved if either (1) the evidence is “closely balanced” and, as a result of the error alleged, an innocent person may have been convicted; or (2) the error, if true, was of such magnitude that defendant would necessarily have been denied a fair trial. (People v. Herrett (1990), 137 Ill. 2d 195, 210, 561 N.E.2d 1, 7-8; People v. Carlson (1980), 79 Ill. 2d 564, 576-77, 404 N.E.2d 233, 238.) The plain error exception does not apply in this case.

First, the evidence in this case is not closely balanced. B.A.’s version of the events of July 4 was consistent both at trial and immediately following the incident when she related her story to no less than four people including her uncle, Officer Murray, Detective Stewart, and DCFS worker Donna Hendricks. All the witnesses who viewed her the night of the incident stated that she was upset, and her uncle testified that when he picked her up to take her to the police station her clothes were not fitting properly. The only relevant conflict in her testimony that defendant was able to point out was that she may have told Ms. Hendricks that defendant threatened her with a knife and not a razor as she related to the other witnesses; this is hardly a glaring inconsistency.

Additionally, Stewart testified that defendant waived his Miranda rights and told him that B.A. was making up the story because of a fight defendant had with B.A.’s mother. On the other hand, Christina Coppage testified that she overheard defendant tell his brother that he had not raped B.A., but that B.A. had given him sex. At trial, however, defendant testified that B.A. slept with an unidentified boy on July 4 whom defendant kicked out of the apartment. Finally, defendant was a type O secretor and there was physical evidence which established that B.A. had engaged in sexual intercourse and that the man who had sex with her was a type O secretor.

After reviewing the record, and in light of the‘above testimony and physical evidence, we cannot say that the evidence was so close the alleged error would have “tipped the scales” against the defendant. Additionally, we believe the evidence against defendant was “highly persuasive” and, under the second prong of the plain error exception, the alleged error was not so prejudicial as to deny defendant a fair trial. We note that the Illinois Supreme Court has expressly held in this exact situation that “a comment upon a defendant’s post-arrest silence, while improper, is not an error of such magnitude as to clearly deprive the defendant of a fair trial.” Herrett, 137 Ill. 2d at 215, 561 N.E.2d at 10; see People v. Stewart (1984), 104 Ill. 2d 463, 488, 473 N.E.2d 1227, 1238; People v. Lucas (1981), 88 Ill. 2d 245, 252, 430 N.E.2d 1091, 1094.

Notwithstanding defendant’s waiver, however, there was no error here. In Doyle v. Ohio (1976), 426 U.S. 610, 619, 49 L. Ed. 2d 91, 98, 96 S. Ct. 2240, 2245, the United States Supreme Court held that it is a due process violation, after defendant has received his Miranda warnings, for a prosecutor to comment on a defendant’s post-arrest silence for the purpose of impeaching defendant’s explanation at trial. The Doyle Court reasoned that every post-arrest silence is “insolubly ambiguous” in light of the fact that every defendant has a constitutional right to remain silent. (Doyle, 426 U.S. at 617, 49 L. Ed. 2d at 97, 96 S. Ct. at 2244.) In other words, a defendant’s silence may merely be his invoking of his constitutional right as opposed to an admission that he has no explanation or defense. (Doyle, 426 U.S. at 617, 49 L. Ed. 2d at 97, 96 S. Ct. at 2244; People v. Monaghan (1976), 40 Ill. App. 3d 322, 326, 352 N.E.2d 295, 298.) Illinois courts have closely followed Doyle and explicitly held that the rule is applicable even if it appears that defendant has not been advised of his Miranda rights. (People v. Beller (1979), 74 Ill. 2d 514, 521, 386 N.E.2d 857, 860.) There are, however, exceptions to the Doyle rule.

The State may impeach a defendant with his post-arrest silence if the defendant gives exculpatory testimony at trial and claims he told the same story to the police upon arrest. (Doyle, 426 U.S. at 619 n.11, 49 L. Ed. 2d at 98 n.11, 96 S. Ct. at 2245 n.11; Beller, 74 Ill. 2d at 522, 386 N.E.2d at 860.) Additionally, if defendant makes an exculpatory statement at trial which is inconsistent with a post-arrest statement made to the police after being informed of his right to remain silent, the prosecutor may confront defendant with the inconsistencies and in doing so properly comment on any factual omissions in the post-arrest statement which defendant included in his trial testimony. (Anderson v. Charles (1980), 447 U.S. 404, 408, 65 L. Ed. 2d 222, 226-27, 100 S. Ct. 2180, 2182; Beller, 74 Ill. 2d at 524-25, 386 N.E.2d at 860-61; People v. Rehbein (1978), 74 Ill. 2d 435, 443, 386 N.E.2d 39, 42; People v. Graves (1986), 142 Ill. App. 3d 885, 890-92, 492 N.E.2d 517, 521-23.) In a sense, any mention of these “omissions” in defendant’s post-arrest statement is a comment on “silence” but, as the Anderson Court stated, “Doyle does not require any such formalistic understanding of ‘silence.’ ” (Anderson, 447 U.S. at 409, 65 L. Ed. 2d at 227, 100 S. Ct. at 2182.) Finally, we would note that once a defendant has expressly waived his right to remain silent and made a statement, the “insolublfe] ambigu[ity]” which is the basis for the prohibition against commenting on defendant’s post-arrest silence is no longer present and, therefore, the Doyle rule would be inapplicable. See Anderson, 447 U.S. at 408, 65 L. Ed. 2d at 226, 100 S. Ct. at 2182; People v. Trumbull (1978), 67 Ill. App. 3d 262, 264, 384 N.E.2d 842, 844; People v. Henson (1978), 58 Ill. App. 3d 42, 46, 373 N.E.2d 852, 855.

In People v. Graves (1986), 142 Ill. App. 3d 885, 492 N.E.2d 517, defendant was arrested for murder. After being informed of his right to remain silent, he told the police that he was “high” on drugs at the time of the killing. (Graves, 142 Ill. App. 3d at 888, 492 N.E.2d at 520.) Later, at his trial, defendant asserted for the first time that he acted in self-defense. (Graves, 142 Ill. App. 3d at 888, 492 N.E.2d at 520.) In closing argument, the prosecutor commented on defendant’s failure to previously mention self-defense when he made his original statement after waiving his right to remain silent. (Graves, 142 Ill. App. 3d at 892, 492 N.E.2d at 522.) The Graves court held that Doyle was not controlling and that the prosecutor was not commenting on defendant’s post-arrest silence, but rather impeaching defendant with his inconsistent statements. Graves, 142 Ill. App. 3d at 892-93, 492 N.E.2d at 522-23.

In Henson (58 Ill. App. 3d at 43, 373 N.E.2d at 853), defendant was arrested for rape. After being informed of his Miranda rights, defendant said that he did not remember what happened because he was so high, but that “I guess I screwed her.” (Henson, 58 Ill. App. 3d at 46, 373 N.E.2d at 855.) At trial, defendant asserted that the woman he was accused of raping had given her consent to the sexual acts. (Henson, 58 Ill. App. 3d at 44, 373 N.E.2d at 853.) The Henson court held that there was nothing improper about the prosecutor’s remarks during closing argument that defendant had not mentioned his defense of consent when he made his statement to the authorities. The court reasoned that Doyle only bars comment on a defendant’s silence which was induced by Miranda. (Henson, 58 Ill. App. 3d at 46, 373 N.E.2d at 855.) Therefore, if the defendant waives his Miranda rights, a subsequent statement can be used against the defendant “in any legitimate way.” Henson, 58 Ill. App. 3d at 46, 373 N.E.2d at 855.

In Trumbull (67 Ill. App. 3d at 263, 384 N.E.2d at 844), defendant was arrested for aggravated battery and armed robbery. After being advised of his Miranda rights, defendant made a voluntary statement that he had assaulted the complainant. (Trumbull, 67 Ill. App. 3d at 263, 384 N.E.2d at 843.) At trial, however, defendant testified that he acted in self-defense and that the complainant had a broken pop bottle behind his back and was going to “cut him.” The Trumbull court concluded that Doyle did not apply, because defendant did not remain silent after being advised of his rights. Therefore, it was proper for the prosecutor to impeach defendant by commenting on his failure to mention the pop bottle when he gave his original exculpatory story to the police. The court reasoned that, after waiving his rights and making a statement, it would have been “logical and expected” that he would have mentioned the complainant’s attempt to cut him with a pop bottle “in order to negate all criminal liability.” Trumbull, 67 Ill. App. 3d at 264, 384 N.E.2d at 844.

Similarly, in the instant case, Detective Stewart testified that he read defendant his Miranda warnings the morning he was arrested and asked him if he wanted to talk about the case. He stated that defendant then waived his Miranda rights and began to discuss the case. According to Stewart, defendant denied sexually assaulting B.A. and explained that she must have invented the story because he had had an argument with her mother. Stewart also testified that he was present later when defendant made the same statement to the assistant State’s Attorney. B.A.’s allegations were made, however, before she knew about the argument that her mother and defendant had had that night. Additionally, defendant made his statement before he knew of the physical evidence which corroborated B.A.’s story. At trial, after these inconsistencies became apparent, defendant testified that when he returned home on July 4 he found B.A. with a boy and that B.A. had had sex with the boy. She begged him not to tell her mother, but when he said he was going to she ran from the apartment. He denied making any statements to either Detective Stewart or to the assistant State’s Attorney.

Based upon the above facts, it was not improper for the prosecutor to comment on the legitimate inference that defendant, after realizing that his explanation was insufficient to protect him, invented a new exculpatory story at trial which took all these facts into account. As in Trumbull, it would have been “logical and expected” that, if defendant waived his rights and made a statement, he would have mentioned the young boy he discovered with B.A. and the fact that she had slept with the boy “in order to negate all criminal liability.” Therefore, it was not error for the prosecutor to comment on defendant’s failure to relate his exculpatory story that he discovered a young boy with B.A. and that she admitted she had had sex with the boy and begged defendant not to tell her mother, or to comment on the legitimate inferences to be drawn from the inconsistencies. According to Stewart, defendant waived his Miranda rights. Therefore, if the jury believed Stewart, the insoluble ambiguity present in post-arrest silence which is the basis for the Doyle rule would not be present since defendant did not remain silent. Therefore, notwithstanding waiver, the prosecutor’s comments in closing argument were not improper references to defendant’s post-arrest silence as prohibited by Doyle, but permissible impeachment by a prior inconsistent statement.

Defendant also asserts that he was denied a fair trial because the prosecutor made various improper statements during closing argument which (a) unjustly attacked defense counsel, (b) were calculated to inflame the passions of the jury, and (c) were misstatements of the evidence.

Defendant first asserts that the prosecutor improperly attacked defense counsel during his closing argument in an attempt to turn the trial away from the defendant’s guilt or innocence and into a trial of defense counsel. Defendant cites People v. Sanders (1990), 198 Ill. App. 3d 178, 185, 555 N.E.2d 812, 817, for this proposition. Defendant points specifically to the following comments in the prosecutor’s rebuttal closing argument:

“It is coming to the surface how people like J.C. Jones victimize young girls, 14-year old young girls, girls who aren’t sophisticated on assault like Miss Shields [Defense Counsel] who can sit for a year and think of some way, what would I have done? I would have gone next door to the neighbor’s house.
* * *
And they have the audacity when the doctor describes that white stuff coming out as, running out of her, about not being able to tell the age of the substance coming out of her vagina, running out of her. That is ludicrous. It is a flight into fancy for them to say what they said.
* * *
And what is more you know Miss Shields said the baby would have woken up. Well, she obviously doesn’t have children. Because I submit the ladies and gentlemen here who do have children you know that your infants, those babies they could sleep through a tornado and not know what happened. A parent knows that.”

The State responds that defendant has waived this argument because his use of “boilerplate” language in his motion for a new trial is not sufficiently specific to preserve the issue for review. If defendant has not waived the argument, the State asserts that all these remarks were invited by defense counsel’s closing argument or were legitimate inferences drawn from the evidence. Alternatively, the State argues that any error was harmless.

In his post-trial motion defendant states that “[t]he Court erred in overruling defense objections when the Prosecutor repeatedly referred to defense counsel.” This allegation is sufficiently specific to preserve any defense objections to the prosecutor’s closing argument. However, defense counsel only objected to the second remark above in which the prosecutor called her argument “ludicrous” and a “flight of fancy.” Under the doctrine of waiver, in order to preserve an issue for review, defense counsel must make an objection at trial and renew the objection in a written post-trial motion. (Enoch, 122 Ill. 2d at 186, 522 N.E.2d at 1130.) Therefore, defendant has waived consideration of the propriety of the unobjected to passages.

Irrespective of waiver, however, the prosecutor’s remarks were not improper. It is clearly established that a prosecutor is given “wide latitude” to comment on the evidence during closing argument and his remarks will not be considered improper “if they are based upon facts in the record or reasonable inferences drawn therefrom.” (People v. Batson (1992), 225 Ill. App. 3d 157, 166, 587 N.E.2d 549, 554.) Additionally, comments by the prosecutor during closing argument which are invited and not prejudicial also do not constitute error. (People v. Franklin (1990), 135 Ill. 2d 78, 100, 552 N.E.2d 743, 753.) The prosecutor may not accuse defense counsel, however, either expressly or impliedly, of engaging in “defense trickery” or of fabricating a defense. Sanders, 198 Ill. App. 3d at 185, 555 N.E.2d at 817; People v. Thomas (1983), 116 Ill. App. 3d 216, 222, 452 N.E.2d 77, 81; People v. Witted (1979), 79 Ill. App. 3d 156, 165-66, 398 N.E.2d 68, 77.

Here, the prosecutor’s remarks were not improper, but rather were invited by defense counsel’s closing argument as well as being legitimate comments on the evidence. During closing argument, defense counsel argued, in effect, that B.A. was not sexually assaulted because if she were she would have stopped at a neighbor’s apartment for help rather than run down 12 flights of stairs nor would she have run two blocks away to use a public phone when there were public phones next to her apartment building and a police station just two blocks in the opposite direction. The prosecutor’s response in rebuttal that B.A. was just a scared 14-year-old girl who acted on instinct and did not have a year to consider what others like defense counsel would think would be the most rational response to being sexually assaulted was invited by defense counsel’s argument.

In closing argument, defense counsel also asserted that B.A. had had sex with the unidentified boy that defendant testified he discovered in the apartment with her. Counsel argued that a tremendous number of people could have been the donor of the sperm found in B.A. and that no expert testified as to the age of the sperm. In rebuttal, the prosecutor asserted that this argument by defendant was “ludicrous” and “a flight into fancy.” Again, this comment was mere argument which was invited by defendant’s closing statement and not an improper attack on defense counsel.

Finally, defense counsel argued in closing that if defendant had gone to his brother’s home to hide and left the baby in the apartment alone, as the prosecutor asserts, then when Officer Murray knocked on defendant’s apartment that morning, the baby would have awakened. In rebuttal, the prosecutor remarked that defense counsel “obviously doesn’t have children *** [bjecause *** you know that *** babies they could sleep through a tornado and not know what happened.” This comment was clearly invited by defendant’s argument and was not an attempt, as defendant asserts, “to divert the attention of the jury away from the weaknesses of its case *** and turn the proceedings into a trial of [defense counsel].” Although the prosecutor should not have referred to defense counsel in his closing argument, none of his statements accused defense counsel of engaging in improper conduct or fabricating a defense; nor were his comments intended to focus the jury’s attention on defense counsel and off defendant’s guilt or innocence. Therefore, none of the prosecutor’s references to defense counsel were improper attacks justifying reversal.

Second, defendant argues that the prosecutor’s opening statement during rebuttal closing argument was intended to improperly “inflame the passions” and “arouse the prejudices” of the jury and, therefore, defendant’s conviction should be reversed. The prosecutor began his rebuttal argument as follows: “Shame on [B.A]. That bitch. Shame on her. Shame on that lying trollop who got up on the stand. That is what they are saying.” The State first asserts that defendant has waived this argument on review. If the argument has not been waived, the State contends that the statement was an invited response to defendant’s closing argument. Alternatively, the State maintains that any error here was harmless.

Defendant made a contemporaneous trial objection which was overruled. In his post-trial motion, the defendant asserted that “[t]he Assistant State’s Attorney made prejudicial, inflammatory and erroneous statements in closing argument designed to arouse the prejudices and passions of the jury, thereby prejudicing the defendant’s right to a fair trial.” The defendant did not set forth any specific complained-of remarks. This court has consistently held that the use of such “boilerplate” language in a post-trial motion that the prosecutor’s remarks in closing argument were “prejudicial, inflammatory, and erroneous statements designed to arouse the passions and prejudices of the jury” without setting forth the specific complained-of remarks is too general and not sufficiently specific to preserve an alleged error for review. (People v. Harris (1989), 187 Ill. App. 3d 832, 841, 543 N.E.2d 859, 864; Thomas, 116 Ill. App. 3d at 220, 452 N.E.2d at 80.) The statement in the motion that defense counsel prepared it without having the benefit of an official transcript does not add anything since “the errors should have been known to defense counsel even without a transcript.” (People v. Collins (1984), 127 Ill. App. 3d 236, 240, 468 N.E.2d 1343, 1346.) Therefore, the question of whether the prosecutor made inflammatory remarks has been waived on review. Additionally, the plain error exception does not apply because the evidence was not closely balanced nor was the perceived error of such magnitude that the defendant was denied a fair trial.

Assuming arguendo that the argument has not been waived, the prosecutor’s statement was based upon the evidence and, therefore, not improper. Defendant maintains that he never referred to B.A. as a “bitch” or a “trollop” and that such a characterization “arouse[d] the prejudice of the jury against the defendant, without throwing any light on the question for decision.” (People v. Smith (1990), 141 Ill. 2d 40, 60, 565 N.E.2d 900, 908.) Defendant’s theory throughout trial and as asserted in closing argument, however, was that B.A. had had sex that night with an unidentified boy and then accused defendant of rape because she did not want her mother to know that she had engaged in consensual sexual intercourse. Defendant may not have expressly referred to B.A. as either a “bitch” or a “trollop,” and we agree that the prosecutor’s language could be considered harsh. The prosecutor’s statement, however, is clearly a fair characterization of what defendant wanted the jury to think of B.A. See Harris, 187 Ill. App. 3d at 842, 543 N.E.2d at 865.

Defendant’s final contention is that he was denied a fair trial because the prosecutor misstated evidence in his closing argument. Specifically, defendant points to the following comments. First, the prosecutor argued to the jury “[w]hat does he [defendant] say? Her mother’s putting her up to all this.” Defendant asserts that he never made this statement and that, in fact, it is a misstatement of Detective Stewart’s testimony. Secondly, defendant points to the prosecutor’s rebuttal argument when he said that “[h]e [defendant] says that every time she’s run out she had gone over to a friend’s house.” Defendant again asserts that he never made this statement.

Defendant has also waived this argument. In his post-trial motion defendant alleged that the trial court erred in overruling his “objections to the Prosecutor’s misstating of the evidence during closing arguments.” General references in a post-trial motion to alleged incorrect statements in closing argument, without factual detail, are insufficient to preserve a perceived trial error for review. (People v. Phillips (1989), 186 Ill. App. 3d 668, 682, 542 N.E.2d 814, 823.) Notwithstanding waiver, however, these remarks did not prejudice defendant.

Attorneys are given “wide latitude” to comment on the evidence in closing argument (Smith, 141 Ill. 2d at 60, 565 N.E.2d at 908), but they may not argue facts not in evidence to the jury. (People v. Whitlow (1982), 89 Ill. 2d 322, 341, 433 N.E.2d 629, 637-38.) Improper comments to the jury during closing argument will constitute reversible error, however, only if “there are reasonable grounds for believing the jury was prejudiced by the improper remarks.” (Whitlow, 89 Ill. 2d at 341, 433 N.E.2d at 638.) First, the defendant asserts that the prosecutor’s characterization in closing argument that defendant is asserting that “[B.A.]’s mother’s putting her up to all this” is a misstatement of the evidence. Defendant’s objection was overruled and the trial judge stated that the “jury heard the evidence *** and will make the determination as to what the facts are.” Defendant responded to this misstatement in closing argument by telling the jury that no witness and no evidence supported the statement. The second statement that defendant complains of was made by the prosecutor in rebuttal when he commented that defendant said “that every time she’s run out she had gone over to a friend’s house.” The defendant actually testified that “every time [B.A.] get ready to get a whippin’ she run out of the house and go somewhere.”

The first statement above may not have been supported by the evidence, but defense counsel’s corrective reference to it in her closing was sufficient to cure any prejudice even though her objection was overruled by the trial judge. The second comment was a fair paraphrase of defendant’s testimony. Nonetheless, we conclude that any error or misstatement of the evidence here was inconsequential and harmless beyond a reasonable doubt. (People v. Sargent (1990), 207 Ill. App. 3d 631, 637, 566 N.E.2d 318, 323; Harris, 187 Ill. App. 3d at 842, 543 N.E.2d at 865.) The two “misstatements” the defendant points out “did not represent a material factor in defendant’s conviction, result in substantial prejudice to him, or affect the verdict such that a different result would have been reached had the comments not been made.” Harris, 187 Ill. App. 3d at 842-43, 543 N.E.2d at 865.

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

Affirmed.

CAMPBELL and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE BUCKLEY JUSTICE MANNING

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT LIDDELL, Defendant-Appellant.
    First District (1st Division)
    No. 1 — 91—2713
    Opinion filed December 21, 1992.
    MANNING, J., specially concurring.
    Rita A. Fry, Public Defender, of Chicago (Kim L. Sorrells and Donald S. Honchell, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Veronica X. Calderon, and Michelle R. Martone, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

A jury found defendant Robert Liddell guilty of the murder, kidnapping and unlawful restraint of decedent Frank Lane. Defendant was sentenced to 24 years in the Illinois Department of Corrections. Defendant appeals his conviction, arguing that he was denied a fair trial because the circuit court refused his tendered jury instructions and the State made prejudicial and inflammatory comments during rebuttal closing arguments which were allegedly designed to arouse the prejudice and passions of the jury. We affirm.

George Wills testified on behalf of the State. Wills testified that he was a close friend of decedent for the past seven years. On June 7, 1987, at approximately 9:30 p.m., Wills, decedent and Berlman Manley went to an outdoor basketball court located at 72nd Street and Dobson Street. Decedent and Manley participated in a basketball game while Wills worked on his car. After about 20 minutes of playing basketball, Manley approached Wills and told him that decedent was involved in a verbal argument. Soon the argument broke up, the basketball game resumed and Wills continued to work on his car. Later, Wills saw decedent talking with Maurice Jackson off the basketball court. Wills approached decedent and suggested that they leave. Decedent agreed and went towards defendant’s car to retrieve his hat.

Approximately 10 minutes thereafter, Wills saw Manley running away from a person brandishing an aluminum baseball bat. Wills later learned that the person pursuing Manley was Kirk Cole. Then, Wills observed decedent being forced into the back of a station wagon. Wills saw decedent attempting to escape from the car, but men were holding him by the seat of his pants. Wills picked up Manley in his car and followed the station wagon. The station wagon stopped in an alley at Kimbark and 62nd Streets. Wills testified that he saw three to four men in the wagon. As Wills pulled his car up the alley, all the men fled in separate directions and the driver of the station wagon pulled away. Wills then observed decedent lying unconscious on the ground in a fetal position. Wills and Manley took decedent to South Chicago Hospital, where he died.

Next, Detective Thomas Kelly testified that on June 14, 1987, he and his partner, Detective Ward, were assigned to conduct an investigation of decedent’s homicide. Kelly and Ward along with two other detectives went to decedent’s mother’s, Augustine Lane’s, home. Augustine claimed that a woman named Denise Manuel might have information regarding her son’s death. The detectives attempted to located Manuel, but failed. The detectives then returned to Augustine’s home and found Manuel there. After speaking with Manuel, the detectives went to seven different locations in an attempt to find witnesses to the homicide.

After Kelly returned to Area One Violent Crimes, Kirk Cole arrived to speak to the police with his mother and defendant. Kelly read Cole his Miranda rights. Cole indicated that he wished to speak with the police. At the conclusion of the interview, Cole was placed under arrest for the murder of decedent. Cole implicated defendant in the murder. Defendant, therefore, was also placed under arrest while waiting in the police station.

Kelly then read defendant his Miranda rights. Defendant acknowledged that he understood those rights, but wished to waive them. Defendant told the detectives that he had seen Cole chasing Manley with a baseball bat, but Cole was unable to catch up with him so he came back to the station wagon. Theodis Houston, Larhone Miles, Marcus Anderson, Maurice Jackson and Cole requested that defendant come over to the car. Jackson had decedent in a headlock. The group forced decedent into the back of the station wagon. Miles was driving the car, and Cole was in the front passenger seat. Defendant admitted that as the car began to pull away he was holding down decedent’s left leg. Defendant stated that he used his right fist to strike decedent’s upper body and ribs while Houston was hitting decedent with a bottle. Anderson and Jackson were also striking decedent.

Defendant further explained to the detectives that the group drove to an alley at 62nd and Kimbark. Defendant and the others exited the car while decedent was still in the rear. Defendant admitted taking an aluminum bat and striking decedent’s head. Jackson then took the bat from defendant and struck decedent four or five times in the head while defendant watched. Then defendant and the others separated on foot while Miles drove the station wagon away from decedent’s body. A short time later they regrouped.

Defendant repeated this account in the presence of Kelly to Assistant State’s Attorney Leighton. Defendant also gave a court-reported statement which was substantially the same as above. In addition to corroborating Kelly’s testimony regarding defendant’s statements, Leighton testified that defendant never said he hit decedent in self-defense or in defense of others. Furthermore, defendant never told Leighton he was holding onto decedent’s left leg in the car to prevent decedent from grabbing the steering wheel.

Last, Dr. Michael Chambliss, a medical examiner for Cook County who performed a postmortem examination on decedent, testified for the State. Chambliss testified that the cause of decedent’s death was a brain hemorrhage and linear skull fracture. Chambliss further testified that the injuries were due to blunt trauma which is consistent with someone striking decedent with a baseball bat.

Defendant testified on his own behalf at trial. Defendant’s testimony corroborates Wills’ and Kelly’s testimonies until the point at which decedent was in the station wagon. Thereafter, defendant claims that decedent became “wild” and “emotional.” Defendant explained that decedent began “climbing over the seats, the passenger seats, the back seats, the front seat, and was grabbing at the driver.” When decedent grabbed at the driver, defendant grabbed him and pushed him back in the hatchback because he claims he was allegedly afraid that decedent would obstruct the driver and cause an accident.

Defendant further testified that they drove to 62nd and Kimbark. Everyone exited the car except decedent, Jackson and Miles. As defendant exited the station wagon, Cole handed him a baseball bat. While at the rear of the car, defendant saw Jackson and decedent fighting. Then, defendant saw Wills’ car approaching. Defendant testified that he thought Wills and Manley were coming after him and his friends, so he wanted to free Jackson from decedent; therefore, he swung the bat at decedent, hitting him in the head. Defendant testified that after he hit decedent, he fled.

Additionally, defendant testified that he went to the police station with Cole and Cole’s mother on June 14, 1987, because he wondered why Cole was being questioned. After being arrested, defendant spoke with the police. Defendant claimed that he never told the police why he held decedent’s leg while in the station wagon, hit decedent with his fist and hit decedent with the bat because the police never asked about these matters.

On cross-examination, defendant testified that Jackson was approximately 5 feet 7 inches, weighing 170 pounds, Houston weighed 160 pounds, and Anderson was about 6 feet tall, weighing about 220 pounds. Defendant denied that decedent had been continually beaten for the almost 10-block ride to the alley where he was left. Defendant testified that after using a baseball-type swing to strike decedent in the head with the baseball bat, decedent fell to the ground and just lay there. Jackson, then, took the bat from defendant and hit decedent with the bat using a golf-type swing, while defendant did nothing to prevent Jackson from hitting decedent. Defendant did not know if decedent was unconscious after he had initially struck him with the baseball bat.

Defendant first argues that the trial court erred in refusing defendant’s tendered jury instructions on battery, aggravated battery and reckless conduct. The State argues that the circuit court’s refusal was proper because the evidence established that defendant was accountable for decedent’s murder and because the evidence was not sufficient to justify giving those instructions to the jury. We agree with the State.

People v. Balls (1981), 95 Ill. App. 3d 70, 419 N.E.2d 571, is analogous to the instant case. In Balls, the defendant admitted to stabbing the decedent once in the side. The defendant contended that someone else inflicted the other wounds, including the fatal wound of the face and neck. The defendant, thus, argued that he could only be guilty of aggravated battery. (Balls, 95 Ill. App. 3d at 75, 419 N.E.2d at 575.) The appellate court held that the tendered instructions on battery and aggravated battery were properly refused because the evidence did not justify the submission of those instructions. (Balls, 95 Ill. App. 3d at 74, 419 N.E.2d at 575.) The appellate court explained that although battery and aggravated battery may be included offenses of murder, in order to give an instruction on the included offenses, the evidence must be sufficient to permit a finding of not guilty on the greater offense but guilty on the included offense. (Balls, 95 Ill. App. 3d at 74-75, 419 N.E.2d at 575.) The Balls court found that the evidence would not support a finding of not guilty on the murder charge but guilty on the included offense of aggravated battery. Balls, 95 Ill. App. 3d at 75.

Similarly, in People v. Sanders (1984), 127 Ill. App. 3d 471, 469 N.E.2d 287, the defendant argued that an instruction for battery or aggravated battery was warranted because the evidence indicated that none of the blunt trauma injuries were sufficient to induce the decedent’s death and that the decedent died as a result of ligature strangulation. (Sanders, 127 Ill. App. 3d at 477-78, 469 N.E.2d at 292.) The appellate court held that the evidence left no doubt that a dangerous weapon was used, and therefore, the battery was at least aggravated battery. The court further held that since aggravated battery is a forcible felony, and the victim died as a result, the defendant was guilty of at least felony murder. (Sanders, 127 Ill. App. 3d at 478, 469 N.E.2d at 292-93, citing Ill. Rev. Stat. 1981, ch. 38, pars. 12 — 3, 12 — 4, 9 — 1(a).) The same is true in the case at bar. Defendant used a dangerous weapon, namely a baseball bat, thereby elevating the battery to an aggravated battery. Further, the aggravated battery being a forcible felony, and decedent dying as a result of that aggravated battery, defendant would be guilty of murder. In other words, defendant could not be found guilty of battery or aggravated battery without also being found guilty of murder. (See Sanders, 127 Ill. App. 3d at 478, 469 N.E.2d at 292.) Accordingly, the circuit court properly denied defendant’s tendered instructions on battery and aggravated battery.

Now turning to whether an instruction on “reckless conduct” should have been given, we agree with defendant that the Illinois Supreme Court stated in People v. Bryant (1986), 113 Ill. 2d 497, 499 N.E.2d 413, that an instruction on a lesser included offense is appropriate if the evidence would permit the trier of fact to rationally find the defendant guilty of the lesser offense and acquit him of the greater. In the case at bar, however, there was no evidence that defendant’s actions were “reckless.” Defendant admitted that he deliberately struck decedent’s head with a bat, which was determined to be consistent with the cause of decedent’s death. Moreover, defendant never called the police or an ambulance. Defendant failed to show any credible evidence that his conduct was reckless; thus, the circuit court properly denied defendant’s tendered instruction on reckless conduct.

Finally, defendant contends that the State’s following statements during closing rebuttal argument denied him his right to a fair trial.

“You saw the defendant testify yesterday. He was in a suit and a tie. He looked good. Did you ever hear a story of the wolf in sheep’s clothing?
* * *
The funny thing about wolves, they not only like to wear a lamb’s clothing; they like to run in packs.”

Relying on People v. Johnson (1987), 119 Ill. 2d 119, 139, 518 N.E.2d 100, 109-10, defendant argues that the Illinois Supreme Court found that it is “improper to characterize a defendant as an ‘animal,’ even where that characterization is based on the evidence.” In Johnson, the State argued that “[flour of those people were butchered by an animal, and that animal is among us today, and he sits right there. (Indicating.)” (Johnson, 119 Ill. 2d at 139, 518 N.E.2d at 109-10.) The State actually referred directly to defendant as an “animal.” In the instant case, the State was merely attempting to persuade the jurors to not be deceived by defendant’s appearance during trial. The State further commented that defendant and his friends/accomplices liked to run in a “pack.” The State explained that defendant and his accomplices beating decedent to death was a “team effort.” The reference to “pack” was to convey to the jurors that defendant was part of a group working in concert with one another. The State’s comments during closing rebuttal argument were not improper.

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

Affirmed.

CAMPBELL, J., concurs.

JUSTICE MANNING

specially concurs:

While I agree with the result reached here today, I disagree with the majority’s view that it was not error to liken defendant to wolves. The implication in the prosecutor’s argument was that this defendant behaved like a wolf, running in packs. This is no different than directly calling a defendant an animal. Nothwithstanding my disagreement with the majority, I do not view this error, under the facts of this case, to be reversible error since the evidence of defendant’s guilt was substantial. Hence, I agree that affirmance is warranted.


author: PRESIDING JUSTICE JIGANTI

text:
    ELWIN O. JONES et al., Plaintiffs-Appellants, v. THE VILLAGE OF WILLOW SPRINGS et al., Defendants-Appellees.
    First District (4th Division)
    No. 1 — 92—0678
    Opinion filed December 23, 1992.

      Crotty & Chacon, of Chicago (James T. Grotty, Zacarias R. Chacon, and Deborah J. Allen, of counsel), for appellants.
    Vincent C. Cipolla, of Kurnik, Cipolla, Stephenson & Barasha, Ltd., of Arlington Heights, for appellee Village of Willow Springs.
    John D. Handbury, of Crowley, Ross & DeMeo, of Chicago, for appellee Justice/Willow Springs Water Commission.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiffs, Elwin 0. Jones, the Blue Front Lounge and National Fire Insurance Company, as subrogee, filed a negligence action against the defendants, the Village of Willow Springs (Village) and the Justice/Willow Springs Water Commission (Commission), seeking damages resulting from a fire. The plaintiffs alleged that the Commission was guilty of willful and wanton misconduct in failing to maintain adequate water pressure in its water mains used for fire-fighting purposes. The plaintiffs further alleged that the Village was guilty of willful and wanton misconduct based on its failure to remedy the inadequacy of the water pressure and its failure to extinguish the fire. Both defendants filed motions to dismiss based on the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1989, ch. 85, par. 1 — 101 et seq.). The trial court granted the motions to dismiss and the plaintiffs have appealed.

On appeal, the plaintiffs contend that the Commission is not entitled to the protection of the Tort Immunity Act. The plaintiffs argue that the Tort Immunity Act does not apply where a public entity is acting in a proprietary rather than a governmental capacity and that the operation of a water works system is a proprietary function. As to the Village, the plaintiffs contend that their complaint properly alleged a “special duty” exception to the Tort Immunity Act and further that the Act does not provide the Village with protection for the willful and wanton misconduct alleged in the complaint.

The original complaint alleged that on November 27, 1986, plaintiff Elwin 0. Jones operated a business known as the Blue Front Lounge, located at 9053 South Archer Avenue in Willow Springs, Illinois, and that he relied upon the Village and the Commission to provide adequate fire protection. The complaint further alleged that the Village and the Commission “assumed a duty to provide adequate fire protection to parties such as the plaintiff.” According to the complaint, both defendants were guilty of willful and wanton misconduct because they knew that there was an inadequate supply of water to the western edge of the Village and that the water pressure was inadequate for fire hydrants to operate properly, yet failed to remedy the inadequacies. The complaint also stated that the defendants held themselves out as having adequate fire protection services when it was patently obvious that the facilities were inadequate, and that agents of the Village “watched and failed to provide or render any aid or service or attempt to stop said fire.”

The Village filed a motion to dismiss based on the Tort Immunity Act. The trial court granted the motion with leave to amend. An amended complaint, directed solely against the Commission, alleged that the Commission owned and operated for profit the water, water lines and water facilities used by the Village for fire-fighting purposes. The complaint stated that the Commission “was in the business of selling water to the VILLAGE for the purpose of extinguishing fires.” The complaint further alleged that the Commission was under a duty to maintain adequate water pressure in its lines to extinguish fires and that it breached this duty. According to the amended complaint, “[a]s a result of [the Commission’s] failure to maintain adequate water pressure to extinguish fires, fire fighters were unable to extinguish the fire.”

The Commission moved to dismiss the amended complaint, claiming the protection of the Tort Immunity Act. Following a hearing, the trial court granted the motion and dismissed the cause.

Article V of the Tort Immunity Act specifically addresses the immunity afforded public entities and public employees in the area of fire protection services. Section 5 — 101 provides that “[n]either a local public entity nor a public employee is liable for failure to establish a fire department or otherwise to provide fire protection.” (Ill. Rev. Stat, 1989, ch. 85, par. 5 — 101.) Section 5 — 102 states that where a local public entity does undertake to provide fire protection services, neither it nor its employees are liable for an injury “resulting from the failure to suppress or contain a fire or from the failure to provide or maintain sufficient personnel, equipment or other fire protection facilities.” (Ill. Rev. Stat. 1989, ch. 85, par. 5 — 102.) Section 5 — 103, which deals with the condition of fire-fighting equipment and the acts or omissions of fire fighters, provides as follows:

“(a) Neither a local public entity, nor a public employee acting in the scope of his employment, is liable for an injury resulting from the condition of fire protection or firefighting equipment or facilities. ***
(b) Neither a local public entity nor a public employee acting in the scope of his employment, is liable for an injury caused by an act or omission of a public employee while engaged in fighting a fire. However, this Section shall not apply if the injury is caused by the willful and wanton conduct of the public employee.” Ill. Rev. Stat. 1989, ch. 85, par. 5 — 103.

The plaintiffs first contend that the trial court erred in dismissing their amended complaint against the Commission. The plaintiffs argue that the Tort Immunity Act does not apply where a public entity is acting in a proprietary rather than a governmental capacity and that the operation of a water works system is a proprietary function.

In Merrill v. City of Wheaton (1942), 379 Ill. 504, 41 N.E.2d 508, the Illinois Supreme Court recognized the dichotomy of roles performed by a municipal corporation. The court stated that when a municipality acts in a manner which involves a public purpose and benefits the public in general, it is acting in its governmental capacity. However, where the municipality acts to accomplish a private purpose for its own corporate benefit, it is acting in its proprietary capacity. It has been held that a municipal corporation may be held liable for damages resulting from the performance of its proprietary functions. (Gravander v. City of Chicago (1948), 399 Ill. 381, 78 N.E.2d 304.) The Tort Immunity Act specifically states that its purpose is to protect local public entities and public employees from liability arising from “the operation of government.” Ill. Rev. Stat. 1989, ch. 85, par. 1 — 101.1(a).

The plaintiffs cite two cases, People ex rel. Chicago Title & Trust Co. v. Mission Brook Sanitary District (1966), 76 Ill. App. 2d 423, 222 N.E.2d 8, and White v. City of Centralia (1956), 8 Ill. App. 2d 483, 131 N.E.2d 825, to support their argument that the function of the Commission in providing water for various purposes, including fire fighting, was proprietary rather than governmental in nature. Mission Brook involved the question of whether a sanitary district and a village could operate water distribution systems with co-equal jurisdiction and has no bearing upon the issues of negligence and immunity raised in the case at bar. White, on the other hand, involves a situation somewhat similar to the one before us and is quite instructive in its reasoning. In White, the plaintiff’s decedent, an 11-year-old boy, drowned in a water reservoir which was operated as a recreational lake by the defendant city. The plaintiff filed a negligence action against the city, alleging that it was acting in its proprietary capacity in operating the water system. In affirming the dismissal of the complaint, the appellate court stated that “[i]t is apparent that a defendant City when owning and operating a water system and selling water to individuals is engaged in the business or proprietary capacity and not in a governmental capacity, but it is also clear that the City may act in a dual capacity, one proprietary and the other governmental, and when acting in its governmental capacity cannot be held liable for negligence.” (White, 8 Ill. App. 2d at 486-87, 131 N.E.2d at 827.) The court then stated that the establishment and maintenance of recreational grounds by a municipality constitutes the performance of a governmental function and that the city was accordingly immune from liability.

As in White, the Commission in the case at bar may be acting in a proprietary capacity when operating its water system and selling water to individuals. However, when it undertakes to provide water for a purpose related to the benefit of the general public, such as fire fighting, we believe that it is acting in its governmental capacity. In accord with this view is the decision in Consolidated Biscuit Co. v. Illinois Iowa Power Co. (1939), 303 Ill. App. 80, 24 N.E.2d 582, a case which is factually similar to the instant cause. In Consolidated Biscuit, the plaintiff brought an action against a water works company based in part on the company’s allegedly negligent failure to supply sufficient water pressure to extinguish a fire on the plaintiff’s property. The court affirmed the dismissal of the negligence counts on the grounds that there was no duty owed by the water works company to the plaintiff. For the foregoing reasons, we believe that the trial court properly dismissed the amended complaint against the Commission.

The plaintiffs next contend that the court erred in dismissing their complaint against the Village. The plaintiffs make two arguments in support of this contention. First, they argue that the allegations of the complaint were sufficient to establish a “special duty” exception to the general rule of tort immunity. Second, they maintain that willful and wanton misconduct is an exception to the Tort Immunity Act.

The special-duty doctrine provides an exception to the general rule that a public entity or employee is immune from tort liability while performing a governmental function. (Lane v. City of Harvey (1988), 178 Ill. App. 3d 270, 275, 533 N.E.2d 75.) Under this doctrine, a public entity may be liable for injuries to an individual where a public employee has assumed a special duty to the person which elevates his status to something more than a member of the general public. (Lane, 178 Ill. App. 3d 270, 533 N.E.2d 75.) The special-duty doctrine applies where:

“(1) [T]he municipality is uniquely aware of the particular danger or risk to which the plaintiff is exposed; (2) there are allegations of specific acts or omissions on the part of the municipality; (3) the specific acts or omissions are either affirmative or willful in nature; and (4) the injury occurred while the plaintiff was under the direct and immediate control of employees or agents of the municipality.” Lane, 178 Ill. App. 3d at 276, 533 N.E.2d at 80.

Gardner v. Village of Chicago Ridge (1966), 71 Ill. App. 2d 373, 219 N.E.2d 147, is an example of a case in which the court found the existence of a special duty. In Gardner, police officers requested the plaintiff to accompany them to a certain location in order to identify four suspects. While at that location, in the presence of the police officers, the suspects attacked and seriously injured the plaintiff. The court found that a special duty existed toward the plaintiff because the police had called him into a position of peril. Subsequent cases have held that in order to satisfy the “direct and immediate control” prong, the plaintiff must show that the public official was responsible for the occurrence which gave rise to the need for protection. (Lane v. City of Harvey (1988), 178 Ill. App. 3d 270, 277, 533 N.E.2d 75; Jackson v. Chicago Firefighters Union, Local No. 2 (1987), 160 Ill. App. 3d 975, 982, 513 N.E.2d 1002; Galuszynski v. City of Chicago (1985), 131 Ill. App. 3d 505, 508-09, 475 N.E.2d 960.) Thus, liability has been found in the situation where a public official created the position of peril (Gardner, 71 Ill. App. 3d 373, 219 N.E.2d 147), but not where the plaintiff sought protection which was simply not provided (Marvin v. Chicago Transit Authority (1983), 113 Ill. App. 3d 172, 446 N.E.2d 1183).

In our view, the plaintiffs have failed to allege the existence of a special duty owed to them by the Village. There is no indication that the Village assumed a special duty toward the plaintiffs which elevated their status to something more than members of the general public. Also, the plaintiffs have failed to establish that the Village or its fire fighters were responsible for the occurrence which gave rise to the need for protection. At most, the plaintiffs sought protection which was not provided. Under these circumstances, no special duty exists.

The plaintiffs also contend that the Tort Immunity Act does not provide immunity for willful and wanton misconduct. They cite section 2 — 202 of the Act, which states that “[a] public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct.” Ill. Rev. Stat. 1989, ch. 85, par. 2 — 202.

In Jackson v. Chicago Firefighters Union, Local No. 2 (1987), 160 Ill. App. 3d 975, 980, 513 N.E.2d 1002, this court determined that article V of the Tort Immunity Act was intended to provide blanket immunity in the specific area of fire protection and was not subject to the exception for willful and wanton misconduct stated in section 2— 202.

In their reply brief, the plaintiffs raise the argument that section 5 — 103 of the Tort Immunity Act specifically creates an exception for willful and wanton conduct in the area of fire protection. Section 5— 103 provides immunity from liability for injuries resulting from the condition of fire-fighting equipment or the acts or omissions of public employees engaged in fighting a fire. Section 5 — 103(b) states that “this Section shall not apply if the injury is caused by the willful and wanton conduct of the public employee.” Ill. Rev. Stat. 1989, ch. 85, par. 5 — 103(b).

The plaintiffs charge that the Village was guilty of willful and wanton misconduct in two respects. First, they argue that the Village failed to remedy known inadequacies in the system used to supply water for fire-fighting purposes. Second, they maintain that the fire fighters did nothing but “stand and observe” while fire destroyed the premises.

In answer to the first argument, it must be noted that simply inserting the words “willful and wanton” into a complaint will not defeat a public entity's claim of immunity. It is clear under section 5— 101 of the Act that the Village was under no duty to provide fire protection services to the plaintiffs. Under section 5 — 102, the Village could not be held liable if it did in fact undertake to provide such services but provided inadequate facilities. The complaint at most establishes that the Village undertook to provide fire protection services, but failed to provide adequate facilities for that purpose. In our view, there is no factual basis to support the plaintiffs’ claim that the Village’s failure to furnish an adequate supply of water for fire-fighting purposes was willful and wanton in nature.

The plaintiffs’ second allegation of willful and wanton misconduct is directed toward the fire fighters who responded to the fire. The plaintiffs alleged that they acted willfully and wantonly in simply standing there and observing while the fire consumed the building. The facts alleged in the plaintiffs’ complaint established that there was inadequate water pressure in the supply lines to enable the fire fighters to extinguish the fire. It can be reasonably inferred from these allegations that the fire fighters’ inaction stemmed from the lack of water with which to fight the fire. The plaintiffs have not alleged any other act or omission on the part of the fire fighters which would rise to the level of willful or wanton misconduct.

For the foregoing reasons, the judgments of the trial court are affirmed.

Affirmed.

JOHNSON and McMORROW, JJ., concur.

       Justice McMorrow participated in the disposition of this case prior to becoming a member of the supreme court of Illinois.


author: JUSTICE McMORROW

text:
    ROSE GOULD, Plaintiff-Appellant, v. SACHNOFF & WEAVER, LTD., et al., Defendants-Appellees.
    First District (4th Division)
    No. 1 — 91—1017
    Opinion filed December 23, 1992.

      Howard F. Davis, of Chicago, for appellant.
    Marvin A. Tenenbaum, of Tenenbaum & Senderowitz, of Chicago, for appellees.
   JUSTICE McMORROW

delivered the opinion of the court:

Plaintiff Rose Gould (plaintiff) filed suit against Sachnoff & Weaver, Ltd., and Jeffrey Rubenstein (hereinafter collectively the defendants) for legal malpractice with respect to plaintiff’s investment in a partnership allegedly recommended by defendants. According to plaintiff’s complaint, the Internal Revenue Service determined that certain adjustments to income relating to the partnership, which had been declared by plaintiff on Federal income tax returns at the defendants’ suggestion, did not qualify for such adjustments. The Internal Revenue Service assessed certain sums against plaintiff for past-due tax liability, including interest, which plaintiff ultimately remitted to the Internal Revenue Service. Plaintiff’s legal malpractice suit alleged that defendants had given plaintiff erroneous advice regarding the investment, its tax consequences, and the consequences of settling the matter with the Internal Revenue Service. Plaintiff also alleged that defendants negligently failed to reveal to plaintiff that defendants held a proprietary interest in the partnership.

Defendants filed a motion to dismiss plaintiff’s complaint on the ground that it was barred by the applicable statute of limitations. The trial court granted the defendants’ motion to dismiss and plaintiff appeals. We conclude that the record does not establish, as a matter of law, that plaintiff’s complaint was filed after the expiration of the statute of limitations. We further determine that plaintiff’s legal malpractice suit is not barred by the doctrine of Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443. Accordingly, we reverse and remand for further proceedings.

Plaintiff’s complaint against defendants made the following pertinent allegations. Plaintiff and her late husband allegedly engaged defendants as their counsel in 1974, and defendants recommended that plaintiff invest $20,000 in a partnership named “Amber Manor Apartments,” as a tax shelter to defer Federal income tax. Plaintiff alleged that she and her husband filed joint tax returns for the years of 1974 and 1975 and claimed certain adjustments to income based upon their interest in Amber Manor Apartments.

Plaintiff alleged that the Amber Manor Apartments investment was subsequently investigated by the Internal Revenue Service (hereinafter the IRS), thereby causing an audit of the 1974 and 1975 Federal income tax returns filed by plaintiff and her husband. As a result of the audit, the IRS allegedly issued a notice of deficiency to plaintiff and her husband on March 18, 1982.

Plaintiff alleged in her complaint that based upon the advice of defendants, plaintiff and her husband filed a petition in the Tax Court of the United States for a redetermination of the deficiency that had been issued on March 18, 1982. According to plaintiff’s complaint, the defendants and the IRS negotiated a settlement of the matter in 1988, wherein it was agreed that plaintiff would pay an increase in tax in the amount of $10,290.19 for the 1974 tax year and $367.25 for the 1975 tax year.

Plaintiff alleged that on approximately June 15, 1989, plaintiff received from the IRS a notice of change to her account. The notice stated that plaintiff owed interest in the sum of $24,460.44 for the 1974 tax year and interest in the amount of $367.25 for the 1975 tax year. Plaintiff alleged that she paid these amounts.

On January 9, 1990, plaintiff filed her legal malpractice suit against defendants. She alleged that defendants had not properly advised her and her late husband of the tax consequences of the investment in the Amber Manor Apartments, and that defendants had given plaintiff and her late husband incorrect advice regarding the consequences of their settlement with the IRS upon receipt of the notice of deficiency in 1982. Plaintiff also alleged that defendants had negligently failed to disclose the defendants’ proprietary interest in Amber Manor Apartments. Plaintiff requested damages in the amount of $55,279.88, i.e., her initial investment ($20,000) plus accrued interest liability she had paid ($35,279.88).

The defendants responded to plaintiff’s pleading with a motion to dismiss the complaint because it had not been filed within the applicable five-year statute of limitations. (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 205 (five-year statute of limitations); Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(5) (motion to dismiss for failure to file suit within applicable statute of limitations).) Following briefing and a hearing, the trial court allowed defendants’ motion and dismissed plaintiff’s complaint with prejudice. Plaintiff appeals.

At the time of its filing, plaintiff's pleading was governed by a five-year statute of limitations. (See Ill. Rev. Stat. 1989, ch. 110, par. 13 — 205.) Plaintiff and the defendant agree that the discovery rule applies to the five-year statute of limitations governing plaintiff’s legal malpractice claims. (See, e.g., Superior Bank F S B v. Golding (1992), 152 Ill. 2d 480.) Under the discovery rule, the statute of limitations begins to run when the plaintiff knew, or in the exercise of reasonable diligence should have known, that the defendant committed a tortious act. (Superior Bank F S B, 152 Ill. 2d at 488-89; Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 170-71, 421 N.E.2d 864; see also Belden v. Emmerman (1990), 203 Ill. App. 3d 265, 560 N.E.2d 1180.) This question is generally a factual issue, although its disposition as a matter of law is appropriate where the facts are not contradicted and establish that the movant is entitled to summary adjudication of the question. See Superior Bank F S B, 152 Ill. 2d at 488-89; Nolan, 85 Ill. 2d at 170-71; Witherell v. Weimer (1981), 85 Ill. 2d 146, 156, 421 N.E.2d 869.

In the present case, the defendants argue that plaintiff did not file suit within five years of the date on which she knew, or reasonably should have known, of the defendants’ alleged negligence in the legal advice they provided to plaintiff and her late husband. Plaintiff submits that she did not become aware of defendants’ malpractice until after she received the 1989 IRS notice that she owed additional interest for her 1974 and 1975 income tax returns. Specifically, according to plaintiffs complaint, defendants committed legal malpractice when they failed to inform plaintiff that additional interest would be owed even though plaintiff and her late husband were to settle with the IRS. Plaintiff also asserts that defendants were negligent because they failed to raise before the IRS or the Tax Court that the notice of deficiency issued by the IRS was time-barred, and because the defendants failed to advise plaintiff and her late husband that contesting the notice of deficiency “in other courts” would have eliminated the possibility that interest would be assessed. Plaintiff further contends that the defendants were negligent because they did not disclose the existence of defendants’ proprietary interest in Amber Manor Apartments, in violation of the Code of Professional Responsibility. Lastly, plaintiff claims that defendants failed to advise that the purchase of Amber Manor Apartments as a tax shelter would be unacceptable by the IRS to offset Federal income taxation.

Defendants argue that plaintiff and her late husband were placed on notice in 1982, when the IRS issued its notice of deficiency, that the investment in Amber Manor Apartments did not satisfy the goal of purchasing a tax shelter for Federal income tax purposes. Defendants also assert that it was in 1982, upon the IRS’s issuance of the notice of deficiency, that plaintiff and her late husband learned that they would have to pay interest with respect to their 1974 and 1975 Federal income tax returns.

To support this assertion, defendants point to the notice of deficiency sent from the IRS to plaintiff and her late husband. However, we have reviewed this document and do not find that it explicitly advises plaintiff or sufficiently puts her on notice that she would owe interest on her 1974 or 1975 Federal income taxes in the event that she filed suit or settled the matter with the IRS. Consequently, we cannot say, as a matter of law, that this document establishes that plaintiff was aware, or should have been aware, in 1982, that she would have to pay additional interest on her outstanding tax liability.

To further support their position, defendants also refer to documents written by defendants to plaintiff and her late husband. However, these documents are not included in the record on appeal and therefore do not support defendants’ position.

In light of these considerations, we conclude that plaintiff’s suit was not barred by the five-year statute of limitations. Plaintiff alleged that it was in 1989, when she received notice from the IRS of the amount of interest that she had to pay, that plaintiff first learned that she would be required to pay interest with respect to her 1974 and 1975 Federal income taxes. Defendants have not presented evidence to show, as a matter of law, that plaintiff should have known at an earlier date that interest would also be due and owing for the 1974 and 1975 Federal tax years. Although plaintiff received the notice of deficiency from the IRS in 1982, we do not believe that this event, considered in isolation, is sufficient to establish as a matter of law that plaintiff should have realized, at that time, that defendants had been negligent in their advice regarding the Amber Manor Apartments as a Federal tax shelter. As a result, we find defendants’ arguments inadequate ground to justify the trial court’s dismissal of plaintiff’s complaint for failure to file suit within the appropriate statute of limitations.

We also note that defendants have wholly failed to respond to plaintiff’s allegation that defendants were negligent because they allegedly failed to advise plaintiff and her late husband that defendants held a proprietary interest in Amber Manor Apartments. Defendants present no evidence with regard to when plaintiff knew or should have known of the defendants’ proprietary interest in the matter. As a result, the record does not establish that plaintiff’s claim in this respect was filed beyond the five-year statute of limitations.

Defendants also contend that plaintiff’s suit is barred by the Moorman doctrine. In Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443, the Illinois Supreme Court held that a plaintiff cannot recover solely economic damages in an action sounding in negligence, but is limited to recovery based upon breach of contract. (91 Ill. 2d at 86-88.) According to defendants, plaintiff’s suit seeks damages for economic loss, which can only be recovered in contract, not tort.

The Illinois Supreme Court addressed this question in Collins v. Reynard (1992), 154 Ill. 2d 48, and held that Moorman does not extend to legal malpractice claims. (154 Ill. 2d at 52.) In light of this precedent, we conclude that plaintiff’s legal malpractice suit against defendants is not barred by the Moorman doctrine.

Because we find that defendants have failed to establish as a matter of law that plaintiff’s suit was barred by the statute of limitations, we need not and do not address plaintiff’s argument that defendants should be equitably estopped from raising the statute of limitations defense as a bar to plaintiff’s claims.

For the reasons stated, the order of the circuit court of Cook County is reversed and the cause remanded for further proceedings consistent herewith.

Reversed and remanded.

LINN, and JOHNSON, JJ., concur.

       Justice McMorrow participated in the disposition of this case prior to her becoming a member of the supreme court of Illinois.

       Justice Linn participated in the disposition of this case prior to his retirement.