author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARVIN WASHINGTON, Defendant-Appellant.
    First District (5th Division)
    No. 1—88—2894
    Opinion filed June 19,1992.
    Rehearing denied September 23,1992.
    Randolph N. Stone, 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, Kathleen S. Howlett, and Celeste Stack, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

After a jury trial, defendant was convicted of murder and attempted armed robbery. After a death penalty hearing, the jury found defendant eligible for the death penalty but found sufficient mitigating factors to preclude imposition of the death penalty. The trial judge sentenced defendant to 40 years’ imprisonment. Defendant appeals his conviction. We consider: (1) whether the prosecution proved defendant guilty beyond a reasonable doubt; (2) whether the trial court erred denying defendant a new trial in light of testimony from another witness during the sentence hearing that he, not defendant, committed the crimes; and (3) whether the trial court erred restricting defense counsel’s cross-examination of the prosecution’s primary witness.

We affirm.

On the evening of August 16, 1986, David Clark, Eugene Powell, and several other men were playing craps in the basement of a home at 5534 South Bishop in Chicago. The men had been drinking and gambling at various places in the neighborhood throughout the day. Shortly after 9:30 p.m., Frank Ellis knocked on the basement door, identified himself by his nickname, “Scooter,” and was allowed to rejoin the group. Ellis challenged Clark to a game of chess and volunteered to retrieve a chess set. Clark went to the basement door with him. As Clark opened the door, a man appeared wearing a pantyhose over his head and carrying a handgun in his left hand. The man yelled: “Where do you think you’re going? This is a stickup.” Powell slammed the basement door into the man’s left hand; someone simultaneously turned the lights off. The gun fired, killing the victim, Steve Baker. The other men dove for the floor. In the darkness, the gunman rummaged through the room for several minutes, then left. Powell called the police.

Defendant, Marvin Washington, was arrested. At defendant’s jury trial for murder and attempted armed robbery, the State’s three primary witnesses were Clark, Powell, and Ellis. Clark testified that he had been gambling with the men throughout the day; Clark knew defendant, Powell and Ellis from the neighborhood; Ellis had been with the group in the morning but defendant had not been with the group any time during the day; around 9:45 p.m. Ellis rejoined the group; Clark thought it was odd that Ellis volunteered to get a chess set because Ellis did not own one; when Clark opened the basement door, he observed the gunman, who had a pantyhose over his head and was carrying a .38 caliber revolver in his left hand; Powell slammed the door on his left hand and the gun went off; the lights went off at the same time and remained out for several minutes; the gunman fled.

Powell testified that he gambled during the day with the men; he also stated that Ellis rejoined the group that night, spoke to Clark, and Ellis and Clark went to the basement door; Powell was standing next to the door and Clark opened the door towards Powell; Powell heard the gunman announce the stickup just as Clark heard; the gunman was wearing a “stocking cap” or “mask,” but Powell could identify defendant’s facial features; Powell did not see the handgun; Powell closed the door on the gunman to prevent the stickup; the lights went out, the gun fired, and Powell dove for the floor and stayed there for several minutes.

When Powell discovered that Steve Baker had been shot, he called the police. That night, he returned with the police to the area station. There, he gave the police the name of defendant’s brother, Tony. The next day, Powell viewed a police lineup. Each member of the lineup stated: “WTiere do you think you’re going? This is a stickup.” Powell identified Marvin Washington in the lineup based on hearing his voice and seeing his “big eyes” and “big lips.” None of defendant’s four brothers, including Tony, were part of the lineup, even though they shared similar facial characteristics.

Ellis testified and admitted that he was involved in the incident. He offered his testimony in return for the prosecution’s recommendation that he receive a five-year sentence. Ellis had no criminal history prior to this incident. Ellis explained that he had gambled with the men in the morning and then went home. In the evening, his uncle, Larry Reed, and defendant visited Ellis at his home. Reed and defendant asked Ellis to help them enter the basement where the men were gambling so that they could rob them. Ellis initially refused. Eventually, Ellis agreed to be the lookout for the robbery. Defendant promised Ellis he could share part of the money.

As described above, Ellis then gained entrance to the basement and challenged Clark to the chess match. Ellis himself gave defendant the pantyhose which defendant wore over his head. Ellis testified that he could see defendant’s face through the pantyhose. He also recognized the handgun which he had seen in defendant’s possession on previous occasions. Ellis had turned the lights out as the gun fired.

Ellis did not initially tell the police of his involvement. While at the police station at 2 p.m. the next day, however, he gave a court-reported statement. This statement provided, in part, that he talked to defendant about the stickup and agreed to act as the lookout. This statement makes no reference to Reed. At 9 p.m. that same night, after talking with his grandmother at length, Ellis gave a second court-reported statement. This statement provided that he had talked to Reed about the stickup and defendant was present during this conversation.

In view of one of the issues on appeal, we address three specific portions of defense counsel’s cross-examination of Ellis. First, in regard to the first court-reported statement, defense counsel questioned Ellis: “Did you ever tell anyone that Marvin Washington wore a mask that you gave him?” The prosecution objected to the question on the ground that it assumed that the officers taking the statement asked him for such information. The trial court sustained the objection.

Second, defense counsel questioned Ellis about the following portion of the second court-reported statement:

“I saw Marvin Washington coming in through the door with a big black revolver in his hand. *** He said, ‘This is a stickup.’ And then I saw his face.”

Defense counsel attempted to impeach Ellis on the ground that this statement (“I saw his face”) contradicted the fact that the gunman wore pantyhose over his face. The prosecution objected on the ground the statement was not a contradiction. The trial judge sustained the objection. Nonetheless, Ellis answered, “He had a pair of pantyhose on and you could see through them.”

Third, in regard to the second court-reported statement, defense counsel questioned Ellis whether he was asked about the mask. Ellis answered that he was not asked such a question. Then defense counsel questioned Ellis whether he told anyone about the mask. The prosecution objected and the trial court sustained the objection. Defense counsel continued:

“DEFENSE COUNSEL: Have you told anyone that besides prior to today?
ELLIS: Yes, I have.
Q. Who did you tell that to?
A. I told the police officers.”

Defendant’s case began with the testimony of Larry Reed. Reed stated that he had played in the crap game earlier in the day, but he was not in the basement at the time of the murder. Reed denied that he planned to rob the gamblers with Ellis or with defendant. Reed testified that he went to defendant’s house the night of the incident. He first stated he was with defendant between 9:30 p.m. and 10 p.m. He then stated he was with defendant between 8 p.m. and 9 p.m. In a written statement taken by the police prior to trial, Reed indicated he did not see defendant until after 11 p.m. Reed was unable to explain these discrepancies.

Two residents of the neighborhood and friends of defendant’s mother both testified that at various times between 9 p.m. and 10 p.m. they saw defendant with some other men on the front porch of defendant’s home. Neither resident saw defendant continuously during this time and one admitted that a person could walk from defendant’s home to the site of the murder in less than one minute.

Defendant’s mother testified that she went to a wedding reception the night of the murder and returned home around 10 p.m. Defendant was home with Terry Reed, Larry Reed’s twin brother, and some other men. Defendant received a phone call around 10:15 p.m. and left shortly thereafter. Defendant’s girlfriend testified that she had made the phone call to defendant. Defendant and Terry Reed met the girlfriend and her sister and took them home.

Both sides rested. After closing arguments, the jury deliberated and found defendant guilty of murder and attempted armed robbery. The jury found defendant eligible for the death penalty but chose not to impose the death penalty after considering evidence in mitigation.

The parties then convened for the sentence hearing. At this time, Larry Reed, after receiving the court’s admonishments, testified that he was the gunman the night of the incident. He explained that he had played craps with the men earlier in the day and that he lost money because the men cheated. He returned that night to recover his money. He denied that he intended to rob the men; he brought the handgun only because he believed the men playing craps had guns. He denied that he was wearing pantyhose over his face. He denied that Ellis had anything to do with his return to the basement. He arrived at the basement door just as Clark was leaving. When one of the men slammed the door on his left hand, he panicked and ran. Later, Reed learned that Steve Baker had been killed. He admitted that although he had known Clark for years, Clark never confronted him about the incident. He admitted that he is not left handed. As to the defendant, Reed first stated that he did not see defendant all that night but later stated that he had been with defendant around 11 p.m.

The trial judge found that the testimony of Reed was completely incredible. Conversely, the judge found that the testimony of Ellis at trial was exceptionally credible and was consistent with the testimony of Clark and Powell. The judge then denied defendant’s request for a new trial and sentenced defendant to 40 years’ imprisonment. Defendant appealed.

Opinion

We first address whether the prosecution proved defendant guilty beyond a reasonable doubt. Our standard of review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found defendant guilty beyond a reasonable doubt. People v. Schott (1991), 145 Ill. 2d 188, 582 N.E.2d 690.

The testimony of Clark, Powell, and Ellis provided the basis for defendant’s conviction. Each witness’ testimony corroborated the others’. Both Clark and Powell provided a consistent account of the day of gambling, the time the gunman appeared, the position of men around the basement door at the time of the shooting, and the events following the shooting. Clark, who knew defendant, testified that the gunman had a pantyhose over his head and was carrying a .38 caliber revolver in his left hand. Defendant was left handed. Both Clark and Powell heard the gunman say, “Where do you think you’re going? This is a stick up.” Powell identified defendant in a lineup after the shooting. This identification was based, in part, on his voice. Powell also recognized defendant’s facial features through the pantyhose. We are cognizant of the factors which temper Clark and Powell’s identification of defendant. However, neither Clark nor Powell had criminal histories and there is no apparent reason why they would lie.

In further support of this testimony, Ellis testified that he could see defendant’s face through the pantyhose. More importantly, Ellis was able to identify defendant because he was actually involved in the incident. He testified that he gave defendant the pantyhose and he recognized the handgun which he had seen in defendant’s possession on previous occasions. Although his statements may have varied, Ellis never changed his identification of defendant as the gunman. Despite the fact that Ellis offered his testimony in return for a reduced sentence, the trial judge found Ellis to be very credible.

In sum, when viewing the evidence in the light most favorable to the prosecution, we hold that the evidence was sufficient to allow a rational trier of fact to find the defendant guilty beyond a reasonable doubt.

The next issue is whether the trial court erred in denying defendant’s motion for a new trial in light of Reed’s testimony at the sentence hearing. Close scrutiny is applied to motions for a new trial based on newly discovered evidence in order to prevent fraud which parties may be tempted to use as a last resort to avoid an adverse verdict; the trial court’s ruling will not be disturbed absent a showing of a manifest abuse of discretion, and the burden is on the applicant to rebut the presumption that the verdict was correct. (People v. Waldroud (1987), 163 Ill. App. 3d 316, 516 N.E.2d 623.) To warrant a new trial, the evidence must be of such a conclusive character that it would probably change the result at the new trial; the evidence must be material and not merely cumulative; the evidence must have been discovered after the trial and must be of such a character that it could not have been discovered before trial in the exercise of due diligence. People v. Miller (1980), 79 Ill. 2d 454, 404 N.E.2d 199.

We agree with the trial judge that Reed’s testimony was incredible. The record suggests that Reed fabricated testimony throughout the proceedings. For example, he signed a written statement at the police station denying that he saw the defendant prior to 11 p.m., yet at trial he testified that he had been with defendant prior to 11 p.m. Reed never demonstrated a shred of believability. Reed’s testimony at defendant’s sentence hearing attempted to exculpate defendant without implicating himself — he would have the court believe that the whole incident was merely an accident. This contradicts all of the other testimony. In sum, Reed’s testimony was not of such character that it would change the result at a new trial. Therefore, we hold that the trial court did not err in denying defendant’s motion for a new trial.

The next issue is whether the trial court improperly restricted defense counsel’s cross-examination of the prosecution’s primary witness, Ellis. We have considered each of the three excerpts of the cross-examination complained of by defendant and find that defendant is not entitled to a new trial. We believe that the trial court properly sustained the prosecution’s objections because defense counsel premised the questions on imprecise characterizations of Ellis’ statements and testimony. Furthermore, even though the trial court properly sustained the objections, the record shows that Ellis answered each of the questions. Therefore, no error resulted.

We note that the trial court’s sentencing order appears to credit defendant for his time spent in custody. The order does not, however, specify the amount of credit. We remand this case for clarification on this point.

Conviction affirmed; remanded pursuant to the above instruction.

McNULTY, P.J., and MURRAY, J., concur.


source: Caselaw Access Project

author: JUSTICE GORDON

license: Public Domain

text:
    ROBERT NORTON TYLER, Petitioner-Appellee, v. PATRICIA MORRIS TYLER, Respondent-Appellant.
    First District (5th Division)
    No. 1—89—1625
    Opinion filed June 19,1992.
    Carlton E. Odim, of Chicago, for appellant.
    Kaufman, Litwin & Gitles, of Chicago, for appellee.
   JUSTICE GORDON

delivered the opinion of the court:

Respondent Patricia Morris Tyler (Patricia) appeals from a judgment of dissolution of marriage entered in favor of petitioner Robert Norton Tyler (Robert) following the entry of an order of default against her for failure to submit herself to a medical examination pursuant to Rule 215 (134 Ill. 2d R. 215). For the reasons set forth below, we dismiss the appeal due to lack of jurisdiction.

Facts

Patricia and Robert were married in 1982. In 1987 Robert filed a petition for dissolution of marriage and Patricia filed a counterpetition. The case proceeded through discovery and trial began, in early June 1988.

On June 8, 1988, the second day of trial, during Robert’s case in chief, the trial court allowed Patricia to call Dr. Totonochi as a witness out of turn. Counsel for Robert objected to Dr. Totonochi’s testifying on the grounds that the doctor had not been timely identified as an expert as required by Supreme Court Rule 220. (134 Ill. 2d R. 220.) Counsel argued that he had not had an opportunity to properly depose the doctor and also that without a physical examination of Patricia as provided by Supreme Court Rule 215(a) (134 Ill. 2d R. 215(a)), a deposition would be pointless.

The court agreed with Robert and continued the case to allow Robert to have a physician of his choosing examine Patricia.

Between June 1988 and October 1988, several appointments were apparently made for Patricia to be examined by two doctors chosen by Robert. No examination, however, ever occurred. Patricia contends that she was unable to keep the appointments due to illness, while Robert argues that her failure to submit to an examination was in wilful disregard of the court’s orders.

On October 25, 1988, Robert filed a petition for sanctions and an order of default because of Patricia’s failure to be examined by his designated doctors. On October 26, 1988, the trial court entered an order striking Patricia’s pleadings, but with the proviso that the order would be vacated if she would submit herself for an examination prior to November 2, 1988.

At a status hearing on November 2, 1988, Patricia’s attorney informed the court that she had failed to keep one doctor’s appointment and had cancelled another that very morning. The court then entered an order of default against Patricia. The order reserved ruling on the issue of a fee petition submitted by Steven Lake, an attorney who had represented Patricia from April 1987 through February 1988.

On November 17, 1988, the court entered an order allowing Patricia’s attorneys 21 days to file fee petitions, and continuing all pending fee petitions for status reports on December 12, 1988. On December 6, 1988, Ward Fisher, Patricia’s then-current attorney, filed his fee petition.

On January 11, 1989, the trial court entered its judgment for dissolution of marriage. The judgment awarded Patricia half of the couple’s marital property, and provided for Robert to pay $36,000 in maintenance. The judgment of dissolution made no mention of attorney fees. In another order entered the same day, the court granted attorney Carlton Odim leave to appear on behalf of Patricia “with the limited exception of representing the respondent relative to Ward Fishers [sic] fee petition.”

Following the judgment of dissolution, motions were filed by Robert to dismiss the fee petitions. The motions were denied, and the matter was continued several times. The latest entry in the record before us regarding the fee petitions is an order entered on May 17, 1989, which set the matter for status on June 28, 1989. During oral argument before this court, counsel for Patricia indicated that a status hearing on the matter of fees had been held three weeks prior to oral argument, and the matter was continued until sometime in June 1992.

Patricia’s notice of appeal was filed June 16,1989.

Opinion

On appeal, Patricia contends that the trial court erred in striking her pleadings and holding her in default. Also, she contends that the trial court improperly entered a bifurcated judgment, contrary to the provisions of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 401(b)), when it entered a judgment of dissolution but continued the question of attorney fees for resolution at a later date. Before proceeding to the issue of whether this is a bifurcated judgment, however, we must first determine whether we have jurisdiction over this appeal. For the same reasons Patricia contends the trial court entered a bifurcated judgment, we conclude that we are without jurisdiction and accordingly dismiss this appeal.

We have the duty to consider our jurisdiction over the case even if the parties do not raise the issue. (J. Eck & Son, Inc. v. Reuben H. Donnelley Corp. (1989), 188 Ill. App. 3d 1090, 545 N.E.2d 170.) The parties may not confer jurisdiction by consent. Pruitt v. Pruitt (1984), 129 Ill. App. 3d 50, 471 N.E.2d 1051.

An appellate court may only hear appeals from final judgments or orders, or in situations in which an exception specified in the supreme court rules is applicable. (In re Marriage of Verdung (1989), 126 Ill. 2d 542, 553, 535 N.E.2d 818; In re Marriage of Ruchala (1991), 208 Ill. App. 3d 971, 975, 567 N.E.2d 725.) A final judgment is one which finally disposes of the rights of the parties either upon the entire controversy or upon some definite and separate branch thereof. Hull v. City of Chicago (1987), 165 Ill. App. 3d 732, 733, 520 N.E.2d 720.

In In re Marriage of Leopando (1983), 96 Ill. 2d 114, 449 N.E.2d 137, our supreme court examined the finality and appealability of judgments in dissolution of marriage cases where all issues are not resolved. Leopando involved an appeal from a custody order in which the court reserved for future consideration the issues of maintenance, property division and attorney fees.

The court held the custody order was not a final order since it did not terminate a separate claim between the parties. In reaching this conclusion, it considered the interrelationship between custody and the financial issues in a dissolution proceeding, and determined that they are part of a single claim. The court stated:

“A petition for dissolution advances a single claim; that is, a request for an order dissolving the parties’ marriage. The numerous other issues involved, such as custody, property disposition, and support are merely questions which are ancillary to the cause of action. [Citation.] They do not represent separate, unrelated claims; rather, they are separate issues relating to the same claim. In fact, it is difficult to conceive of a situation in which the issues are more interrelated than those involved in a dissolution proceeding. *** Practically speaking, then, until all of the ancillary issues are resolved, the petition for dissolution is not fully adjudicated.” (Emphasis in original.) (Leopando, 96 Ill. 2d at 119.)

As a result, the court held that the custody order was not a separate claim, and thus not appealable, notwithstanding the fact that the trial court had included in the order language “that there is no just reason to delay enforcement or appeal of this Order.” Leopando, 96 Ill. 2d at 116.

Although Leopando was decided in the context of an appeal under Rule 304(a) of a “final judgment as to one or more but fewer than all of the parties or claims” (134 Ill. 2d R. 304(a)), its principles are applicable here. The record on appeal indicates that the issue of attorney fees remains unresolved. As noted above, the last order in the record relating to fees indicates that the matter was continued. The record contains no order granting, denying or dismissing the fee petitions. Counsel for Patricia indicated to this court that the matter is still pending and has been continued until later this month. To allow an appeal from this judgment of dissolution while the question of attorney fees remains pending in the trial court would run afoul of the policy to “ ‘encourage[ ] the court to decide all matters incident to the dissolution in a single judgment, to the fullest extent of its authority, in order to achieve finality, promote judicial economy, and avoid multiple litigations and complications which can result from the entry of partial judgments, particularly judgments which dissolve the marriage but “reserve” remaining issues for later determination.’ ” (Emphasis added.) (In re Marriage of Cohn (1982), 93 Ill. 2d 190, 197-98, 443 N.E.2d 541, as quoted in Leopando, 96 Ill. 2d at 120.) As a result, we conclude that the order from which Patricia appeals is not a final one. See In re Marriage of Derning (1987), 117 Ill. App. 3d 620, 453 N.E.2d 90 (court dismissed an appeal from an order of dissolution which left for later resolution the apportionment of attorney fees; In re Marriage of Piccione (1984), 158 Ill. App. 3d 955, 511 N.E.2d 1157 (court concludes it is without jurisdiction to hear appeal of order increasing child support which order reserved question of attorney fees); In re Marriage of Rosenow (1983), 123 Ill. App. 3d 546, 462 N.E.2d 1287 (order of dissolution reserving question of apportionment of pension benefits not final and therefore not appealable).

Accordingly, for all the above reasons, this appeal must be dismissed for want of jurisdiction.

Appeal dismissed.

McNULTY, P.J., and LORENZ, J., concur.


author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. L.C. RILEY, JR., et al., Defendants-Appellants.
    First District (1st Division)
    Nos. 1—88—0773, 1—88—0794 cons.
    Opinion filed June 22,1992.

      Rita A. Fry, Public Defender, of Chicago (Mary C. Arundel, Assistant Public Defender, of counsel), for appellant L.C. Riley.
    Richard S. Kling, of Chicago, for appellant Willie Dixon.
    John M. O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Maureen Hartón, James E. Fitzgerald, and Noreen Daly, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

On July 6, 1985, L.C. Riley, Jr., Willie Dixon, and Michael Wilson decided to rob an ice cream truck. That evening, the three encountered a truck operated by Enos Conard and his son, Troy. As Wilson remained in a car nearby, Dixon, armed with a handgun, and Riley approached the truck’s side service window and ordered a fudge bar from Troy.

The ensuing events unraveled quickly. By the time Troy returned with the fudge bar, Dixon was brandishing the handgun and motioning for Troy to be quiet. Troy panicked and screamed to Enos, “Dad, he’s got a gun.” Enos, who kept a handgun in the truck for security, turned toward the side window with gun in hand. Dixon fired, striking Enos in the chest. Despite Troy’s efforts to render aid, Enos died a short time later.

Eventually, Riley, Dixon, and Wilson were apprehended and charged. Riley and Dixon stood trial simultaneously before separately impanelled juries. Both were convicted of the murder (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1) of Enos and attempted (Ill. Rev. Stat. 1985, ch. 38, par. 8 — 4) armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18 — 2) of Enos and Troy. Dixon was sentenced to natural life in prison. Riley was sentenced to 40 years for murder and 15 years for each of the attempted armed robbery convictions with the sentences to run concurrently. Wilson, who was charged with murder and attempted armed robbery, testified for the State. The State agreed to dismiss the murder charge and requested that Wilson serve only four years in exchange for his testimony against Riley and Dixon and be released from custody immediately after testifying.

We affirm the convictions and sentences of Riley and Dixon.

Riley raises nine separate issues on appeal. He first contends that the trial judge improperly failed to suppress an inculpatory statement Riley gave to police following his arrest. Riley contends the statement was the result of coercion.

Admission of Riley’s statement was supported by the testimony of Chicago police detectives Robert Dwyer and Raymond Madigan. The detectives, who had learned of Riley’s participation in the crimes through a police informant, discovered, on August 28, 1985, that Riley was being held at a police station following his arrest for a traffic violation. The detectives’ testimony related to their interviews with Riley conducted that day.

Dwyer stated Riley initially was interviewed by Madigan regarding the murder at approximately 4 p.m., after Riley had been informed of, and waived, his constitutional rights. Madigan conducted a second interview with defendant approximately 30 minutes later. At approximately 6:30 p.m., the detectives left the defendant handcuffed to a wall in the interview room to continue their investigation.

At approximately 11:45 p.m., Dwyer spoke to Riley after advising Riley again of his constitutional rights. Riley then admitted his participation in the murder and acknowledged the actions of Wilson and Dixon. Riley repeated his statement to an assistant State’s Attorney approximately two hours later after again having been advised of his rights. Riley’s statement was reduced to writing by a court reporter at approximately 4:05 a.m.

Madigan’s testimony mirrored Dwyer’s testimony in all material aspects. Madigan stated, regarding the initial interview that, because Riley was under arrest regarding the traffic violation, he was not free to leave. Riley initially claimed to have no knowledge of the crimes. However, Madigan acknowledged that Riley inquired whether he could strike a “deal” if he did give the police information.

Riley testified Dwyer and Madigan asked him to answer some questions after approaching him while he was securing his release from custody pursuant to the traffic arrest. It was Riley’s testimony that in ensuing interviews, he was handcuffed to._a wall and, at one point, was left in the dark while the detectives continued their investigation. The detectives ignored Riley’s repeated requests to contact an attorney. Riley stated that when he was not forthcoming with answers to Madigan’s questions, Madigan slapped him, twisted his arm, and punched him in the stomach. Riley stated that Dwyer had also punched him and had struck him with a rolled-up newspaper. Only after Dwyer had indicated that police believed co-defendant Dixon was the shooter did Riley agree to give his statement. Until the assistant State’s Attorney arrived to take Riley’s statement, Riley had not been informed of his constitutional rights. Riley also complained about stomach pain but was then denied requested medical attention. We note that the record indicates that on September 17, 1985, Riley received treatment for “blunt trauma” at a hospital after he coughed up blood while brushing his teeth.

The record also shows that the defense stipulated that throughout the course of the proceedings at the police station, Riley knew and understood his rights. Riley himself admitted asking Madigan whether he would be released without being charged if he told the truth. Madigan told Riley he could make no such promise. Riley conceded that he never told the assistant State’s Attorney that he was mistreated by the detectives. Riley also acknowledged that he initialled each page of the written statement, indicating he was aware of the contents of the statement and had answered that all of the statements contained in the statement were true.

Essentially, it is Riley’s argument on appeal that the trial judge should have believed his testimony over that of Dwyer and Madigan, contrary to the trial judge’s expression of opinion in ruling on the motion. On a motion to suppress, however, it is the trial judge’s duty to resolve conflicts in evidence and determine the credibility of the witnesses. (People v. Jones (1989), 184 Ill. App. 3d 412, 541 N.E.2d 132.) When, as here, the defendant’s testimony is the only evidence of coercion and the State’s witnesses deny the conduct alleged, the trial judge enjoys the best position to determine credibility. (People v. Jones, 184 Ill. App. 3d 412, 541 N.E.2d 132.) We do not find the evidence of Riley’s receipt of medical attention, more than two weeks after the date of the alleged beatings, to be independent evidence of coercion as the source of the trauma also depends on Riley’s credibility. In the absence of independent circumstances indicating coercion, we cannot conclude that the trial judge abused his discretion in denying Riley’s motion.

Riley next argues that he received ineffective assistance of trial counsel. First, Riley claims, noting various inconsistencies in the testimony of codefendant Wilson, that his trial counsel was ineffective for failing to request the following jury instruction:

“The believability of a witness may be challenged by evidence that on some former occasion he made a statement that was not consistent with his testimony in this case. Evidence of this kind may be considered by you for the purpose of deciding the weight to be given the testimony you heard from the witness in this courtroom.” Illinois Pattern Jury Instructions, Criminal, No. 3.11 (2d ed. 1981) (hereinafter IPI Criminal 2d).

Riley’s argument is without merit. The trial judge instructed the jury as follows:

“You are the sole judges of the believability of the witnesses and of the weight to be given to the testimony of each of them. In considering the testimony of any witness, you may take into account his ability and opportunity to observe his age, his memory, his manner while testifying, any interest, bias or prejudice he may have, and the reasonableness of his testimony considered in the light of all the evidence in the case[.]
When a witness says he was involved in the commission of a crime with the defendant, the testimony of that witness is subject to suspicion and should be considered by you with caution. It should be carefully examined in light of the other evidence in the case.” (IPI Criminal 2d, Nos. 1.02, 3.17.)

The jury was thereby sufficiently and properly advised as to the weight to accord Wilson’s testimony, and we find no basis to disturb Riley’s conviction. (People v. Georgev (1967), 38 Ill. 2d 165, 230 N.E.2d 851, cert. denied (1968), 390 U.S. 998, 20 L. Ed. 2d 97, 88 S. Ct. 1202.) In fact, the language of the instructions is more limiting, in Riley’s favor, than the instruction Riley now claims should have been given.

Riley also claims counsel was ineffective because counsel conceded, in his closing remarks to the jury, that Riley was responsible for some aspects of the crime. The comments are contained in the following commentary:

“[The State talks] about a team, a member of the team. If Michael Wilson would have stayed home that day and rested from the heroin that he admitted he injected the night before, none of this would have happened. If [the individual who supplied the gun] had left his gun at home, who knows? Who knows? I’m not saying to you and this is an unusual case in the sense that I am not saying to you that this man is not in some way responsible for what happened. There is no question about it, you are reasonably intelligent people. I’d be a damn fool if I tried to tell you [he was] not responsible for some of this. There is no question about that. But for God’s sake let’s get our priorities straight here.”

Riley, relying primarily on People v. Hattery (1985), 109 Ill. 2d 449, 488 N.E.2d 513, cert. denied (1986), 478 U.S. 1013, 92 L. Ed. 2d 727, 106 S. Ct. 3314, asserts the comments show his counsel did not understand the law of accountability, the basis for his conviction.

Hattery involved the reversal of a conviction in a capital case based on opening remarks by defense counsel that he was not asking the jury to find the defendant not guilty. Defense counsel proceeded to present no evidence of defendant’s innocence at trial. The supreme court clarified its decision in Hattery in People v. Johnson (1989), 128 Ill. 2d 253, 538 N.E.2d 1118. The court noted that one of the goals in Hattery was to make certain that the defense presented by counsel at trial was consistent with defendant’s preferred theory of defense. Relevant here, the court further noted that ineffectiveness does not automatically arise whenever defense counsel concedes defendant’s guilt to an offense where there is overwhelming evidence of that guilt. That fact, the court stated, would be especially true when counsel presents a strong defense to other charges.

The decision in Hattery does not provide reason to reverse Riley’s convictions. Counsel’s comments do not constitute the same type of concession of guilt as was before the court in Hattery. Counsel’s comments here appear designed more to discredit a version of events testified to at trial by Wilson rather than to concede Riley’s guilt. More importantly, it is difficult to find Riley’s ineffectiveness claim, based on alleged prejudice resulting from counsel’s comments, valid when Riley’s own statement admitted his involvement in the crime.

Riley also complains he was prejudiced by the continued display before the jury of Enos’ bloodstained shirt which had been admitted into evidence. However, because Riley failed to raise the issue in his written post-trial motion, Riley has waived the opportunity to raise the issue here. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) We find no reason to excuse that waiver under the limited plain error exception. See People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 238.

For similar reasons, we decline to address Riley’s claim that the State engaged in improper commentary during closing argument. Riley failed to object at trial to any of the complained-of remarks and failed to include the issue in his written post-trial motion. People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124; People v. Carlson, 79 Ill. 2d 564, 404 N.E.2d 233.

Riley next asserts he is entitled to a new sentencing hearing because the trial judge, in commenting on the propriety of the sentence imposed, compared Riley and others guilty of similar conduct as “a type of cancer.” Riley construes that comment as a reference to his condition of being “poor, black, uneducated and accused *** of a crime.”

Riley mischaracterizes the nature of the comment. The record indicates the comment did not arise from any racial or economic bias but, instead, reflected the trial judge’s cognizance of what the evidence showed to be Riley’s disdain of the law. See People v. Brown (1990), 195 Ill. App. 3d 78, 551 N.E.2d 1100, appeal denied (1990), 132 Ill. 2d 548, 555 N.E.2d 379, cert. denied (1990), 498 U.S. 903, 112 L. Ed. 2d 223, 111 S. Ct. 267.

Riley contends his 40-year prison sentence was excessive given that he did not shoot Enos, did not have an extensive criminal record, and did not act violently toward police while in custody.

It is well settled that sentencing is within the discretion of the circuit court, and its decision will not be changed upon review absent an abuse of that discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882; People v. Holloway (1985), 131 Ill. App. 3d 290, 475 N.E.2d 915.) Each of the points Riley raises here was before the trial judge for consideration. Moreover, the sentence is within the statutory range provided in the Unified Code of Corrections. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1(a)(1).) Accordingly, we find no reason to disturb Riley’s sentence.

On appeal, Willie Dixon raises two contentions, both related to the State’s elicitation of an in-court identification of Dixon by Troy Conard. Dixon argues that the trial judge should have prevented the State from eliciting the identification, and he then uses that contention to argue that his trial counsel was ineffective for giving the State reason to do so.

Prior to trial, the trial judge granted Dixon’s motion to suppress Troy’s identification of him from a police lineup because Dixon had not been permitted to speak with his attorney as he had requested. Accordingly, the trial judge also refused to permit the State to present any in-court identification of Dixon by Troy. The trial judge, however, did permit Troy to testify regarding his earlier identification of Dixon in a photograph.

With regard to that identification, Troy testified that on August 28, 1985, he was shown several photographs, one of which he tentatively identified as picturing the gunman. The next day, he affirmatively identified the gunman from other photographs. At trial, the State properly limited its questioning of Troy in that regard and inquired only as to whether he had, in fact, made such an identification.

However, during cross-examination, Dixon’s counsel, referring to one of the photographs, pointedly asked whether Troy saw “the man who is pictured *** in court here.” The State objected. Before the trial judge ruled on the objection, Dixon’s counsel then asked, “Well, do you know who that is [in the photograph]?”

The trial judge thereafter granted the State's request to elicit, on redirect examination of Troy, an in-court identification of Dixon, contrary to his earlier ruling. The trial judge explained, in some detail, his reasons for the change. He acknowledged that Troy had been instructed not to make any in-court identification of Dixon. However, when asked by defense counsel whether he could identify the man pictured in court, Troy, apparently confused, had paused. Thus, the trial judge sought to correct any false impression that Troy did not, or could not, identify Dixon.

Dixon has no basis upon which to argue that the identification elicited by the State on redirect testimony was improper. A defendant may not complain about the impropriety of the admission of evidence, where defendant has invited that admission, even though it be improper. (People v. Payne (1983), 98 Ill. 2d 45, 456 N.E.2d 44, cert. denied (1984), 465 U.S. 1036, 79 L. Ed. 2d 708, 104 S. Ct. 1310.) Dixon’s counsel’s questions regarding whether Troy could identify, in court, the individual pictured clearly provided a basis to permit the State to elicit Troy’s identification for the reasons cited by the trial judge.

Dixon’s claim of ineffective representation also must fail. Generally, in order to establish ineffective assistance of counsel, a defendant must show both that counsel’s representation fell below an objective standard of reasonableness and that a reasonable probability exists that, but for that error, the result of the trial would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) A defendant bears a heavy burden to overcome the strong presumption in favor of a finding that defense counsel’s advocacy was not ineffective. (People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246, cert. denied (1985), 471 U.S. 1044, 85 L. Ed. 2d 335, 105 S. Ct. 2061.) Further, the determination of the reasonableness of trial counsel’s actions must be evaluated from counsel’s perspective at the time of the alleged error, without hindsight, in light of the totality of the circumstances. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.

As the trial judge recognized, rather than being ineffective, the record here indicates that Dixon’s counsel’s questioning of Troy was a clever trial tactic. The State had represented that Troy had been warned not to violate the court’s ruling that Dixon was not to be identified in court. By asking the question that Dixon’s counsel knew Troy had been instructed not to answer, counsel successfully created the impression that Troy could not answer the question because he was uncertain as to Dixon’s identity. There is no indication that the action was an unprofessional error such as could support a claim of ineffectiveness. People v. Albanese, 104 Ill. 2d 504, 473 N.E.2d 1246.

The convictions and sentences of Riley and Dixon are affirmed.

Affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.


author: PRESIDING JUSTICE BUCKLEY

text:
    NANCY SOTTILE, Plaintiff-Appellant, v. ANDREW CARNEY, Defendant-Appellee.
    First District (1st Division)
    No. 1—90—1197
    Opinion filed June 22,1992.

      David A. Novoselsky & Associates, of Chicago (David A. Novoselsky and Linda A. Bryceland, of counsel), for appellant.
    Bullaro, Carton & Stone, of Chicago (James R. Branit and Madeleine Weldon-Linne, of counsel), for appellee.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Plaintiff Nancy Sottile filed a complaint against defendant Andrew Carney, M.D. alleging medical negligence against defendant for the treatment she received from him and that defendant failed to adequately inform her of possible complications which could result from the surgery. The jury found in favor of defendant and against plaintiff. Thereafter, the circuit court denied plaintiff’s post-trial motion. Plaintiff appeals the denial of her post-trial motion and the jury’s verdict.

As a young adult, plaintiff suffered from facial flushing and dizzy spells. Plaintiff also complained about sharp pains on the right side of her head of such severity that she would vomit. Some time between 1975 and 1977, plaintiff began experiencing problems with her walk, such as unsteadiness and falling to one side. Prior to December 1979, plaintiff’s symptoms worsened and she began experiencing imbalance almost every day. Due to this condition, plaintiff was referred to Dr. Arvind Kumar.

Kumar performed several tests on plaintiff, all of which indicated that plaintiff had poor blood circulation to the brain. Kumar, therefore, referred plaintiff to CT Headscan for a dynamic CT scan. Dr. M.E Mafee at CT Headscan performed the scan. Mafee’s analysis also concluded that plaintiff’s blood circulation to the brain was poor. After receiving Mafee’s analysis, Kumar referred plaintiff to defendant.

On December 3, 1979, plaintiff was admitted to Oak Park Hospital, which is where and when defendant saw plaintiff for the first time. Defendant took a brief medical history from plaintiff during which plaintiff informed defendant that for the past three years she had been suffering from disequilibrium, numbness in the left arm and hand at night, pain on the right side of her head, weakness in her legs which caused her knees to buckle, resulting in her falling, an inability to stand in the morning when getting out of bed, walking into objects and hitting her right side, and blurred vision. Defendant observed that plaintiff repeated words, slurred her speech and suffered severe memory impairments. The above symptoms would worsen when plaintiff was upset.

On December 4, 1979, defendant performed a physical examination on plaintiff. Defendant also performed a passive tilt test. During the test, plaintiff’s blood pressures were checked. Further, the test allowed defendant to make a brachycephalic arterial evaluation from which he concluded that plaintiff’s neck artery was displaced and had tortuosity. Then, defendant examined plaintiff’s neck artery with a directional doppler and found that the blood velocity on both her right and left sides was low. Additionally, an ocular pulse transmission time test supported a diagnosis of a system problem along with a vascular problem. Plaintiff’s ocular pulse amplitude test was below normal, indicating an obstruction of her carotid artery on the right side. Defendant, therefore, performed a carotid compression test which further indicated the possibility of a right artery obstruction.

Plaintiff, then, underwent a four-vessel angiogram. The angiogram confirmed that plaintiff had considerable tortuosity of the right internal carotid artery, some tortuosity of a portion of the right vertebral artery, tortuosity of the left internal carotid artery and kinking at the origin of the left vertebral artery. Moreover, the angiogram showed that the right carotid artery folded upon itself with a hairpin tight obstruction at the level of the hypoglossal nerve. The angiogram also indicated dynamic obstructions of all four arteries with the worst obstruction being the right internal carotid.

Defendant reviewed plaintiff’s medical records from Illinois Masonic Hospital, including an isotope brain scan. The brain scan revealed a localized isotope concentration over the right middle cerebral artery. The records denoted right coronary artery disease, and reported a primary diagnosis of cerbrovascular insufficiency with verebral basilar disequilibrium. The Illinois Masonic findings were consistent with defendant’s work-up of plaintiff.

Defendant took an electroencephalogram (EEG) of plaintiff. The EEG disclosed low voltage. The EEG results were consistent with a diagnosis of carotid obstruction. Similarly, the EEG established that plaintiff was not getting enough blood to the brain.

Based upon the above litany of tests, findings and observations, defendant concluded that plaintiff had inadequate blood flow to the brain and coronary insufficiency. Defendant opined that there was a need to surgically reconstruct plaintiff’s right carotid artery. Defendant claims that during a conversation with plaintiff, he explained that the surgery would involve the use of an anesthetic which could cause a stroke, heart attack or death. Defendant also informed plaintiff that he would be using a transverse incision which would divide more nerves, but which would heal better. Defendant testified that he told plaintiff that there would be some pain from the incision. Further, defendant testified that he informed plaintiff that she could get numbness in her face and ear. Additionally, defendant told plaintiff that the surgery may not have any benefit, but, on the other hand, that it may help her recover certain functions.

Plaintiff denied that the above conversation took place. Plaintiff’s memory, however, is, by her own admission, terrible. Plaintiff explained, “I can’t remember what I ate yesterday let alone ten years ago.” Plaintiff’s son also admitted that plaintiff’s short-term memory from 1979 until the trial was poor. Moreover, plaintiff’s son admitted that plaintiff had told him that defendant had been in to talk to her alone about the surgery. Furthermore, defendant also had a second conversation with plaintiff at which plaintiff’s son was present. During the second conversation, defendant repeated the informed consent conversation in shorter form.

On December 10, 1979, defendant performed the surgery to which plaintiff agreed. During the surgical procedure, the greater auricular nerve was severed to gain access to the carotid artery. Plaintiff is not contending that the surgery itself was negligently performed. Rather, plaintiff claims to post-operatively suffer pain in the area of the incision and numbness and pain in her face, neck and right ear.

Dr. Glenn Dobben, an associate of Dr. Mafee, who had conducted plaintiff’s CT scan, testified on behalf of defendant as an expert witness. Plaintiff admitted that Dobben was never actually one of her treating physicians. Dobben testified that the surgery was indicated by all the tests, findings and observations and was, therefore, necessary. Dobben opined that defendant not only met the standard of care, but that he performed better than the standard and, therefore, “should be commended.”

After filing her complaint, plaintiff named Mafee as a respondent in discovery pursuant to section 2 — 402 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 402). Counsel filed a limited appearance on behalf of Mafee, along with a motion to dismiss Mafee as a respondent in discovery. The motion stated that Mafee was “being required to give evidence as a ‘potential defendant’ without being apprised of what allegations or what charges [might] be brought against him.” Plaintiff contested the motion.

Then, plaintiff issued a subpoena for the deposition of the administrator of Oak Park Hospital. Plaintiff served Mafee’s counsel with a notice to produce “all material regarding the granting of privileges and reappointment of privileges regarding Doctor(s) [sic] Dr. Andrew L. Carney and Dr. M. F. Mafee,” thereby indicating that Mafee remained a potential defendant. Mafee’s deposition was taken on August 26, 1981, at which he produced all his office’s medical records regarding plaintiff. The only medical record that Mafee had regarding plaintiff was the CT scan which took 40 minutes to perform. Mafee had sent a report to Kumar, and thereafter had no contact with or knowledge of plaintiff.

On May 27, 1987, defendant filed a motion for summary judgment to which Dobben’s affidavit was attached. Plaintiff filed a response to the motion, including a statement that plaintiff needed to depose Dobben. On December 13, 1988, plaintiff took Dobben’s deposition. At that time, plaintiff made no objection to Dobben testifying as an expert witness on behalf of defendant. Plaintiff’s counsel admits that on the date of Dobben’s deposition, at the latest, she was aware that Dobben had engaged in ex parte communications with defense counsel.

The present case had originally been assigned for trial on April 25, 1989. On October 31, 1989, the trial judge assigned the case the trial date of November 20, 1989. On November 26, 1989, plaintiff filed a motion to bar Dr. Dobben’s testimony. Plaintiff did not seek a hearing on this motion until after the jury had been selected.

Prior to Dobben testifying, the circuit court conducted an examination of Dobben outside the presence of the jury. Dobben confirmed that he was one of the partners at CT Headscan, where Mafee had performed plaintiff’s scan. Dobben stated that he had no connection or relationship with plaintiff as an attending physician and was not even present in the office the day plaintiff’s scan was performed. The first time Dobben heard plaintiff’s name was when he was asked by defense counsel to look over her records.

Plaintiff argues that the circuit court erred by failing to bar the testimony of Dobben as an expert witness on behalf of defendant because of ex parte communications between Dobben and defense counsel. According to plaintiff’s argument, Mafee performed a CT scan on plaintiff, and since Dobben was an associate of Mafee’s, any ex parte communications Dobben had with defense counsel violate the holding of Petrillo v. Syntex Laboratories, Inc. (1986), 148 Ill. App. 3d 581, 499 N.E.2d 952; thus, the circuit court should have barred Dobben’s testimony. Defendant argues that plaintiff waived the Petrillo issue. We agree.

Plaintiff waived her rights under Petrillo by failing to assert those rights in a timely fashion. It is within a trial court’s discretion to deny a motion pertaining to evidence on the basis that it was untimely. (See, e.g., In re Estate of Rothenberg (1988), 176 Ill. App. 3d 176, 185, 530 N.E.2d 1148, 1154.) A party who “ ‘knowingly refrains from asserting [an objection] promptly in order to reserve it for the most expedient time, may be deemed to have waived that right.’ ” (Roth v. Roth (1980), 84 Ill. App. 3d 240, 244-45, 405 N.E.2d 851, 855, quoting Lau v. Valu-Bilt Homes, Ltd. (1978), 59 Haw. 283, 297, 582 P.2d 195, 204.) The Illinois Supreme Court recently held that a party was guilty of laches because he was aware of his right, knew that he could assert that right one year prior to asserting it, and that since the party did not diligently assert his right and other parties would be substantially prejudiced if allowed to do so at this time, laches applied. Tally v. State (1991), 143 Ill. 2d 425, 434, 574 N.E.2d 659, 662-63.

Regarding the waiver issue, Gong v. Hirsch (7th Cir. 1990), 913 F.2d 1269, is also persuasive and analogous to the case at bar. In Gong, moments before the trial was to resume, plaintiff’s counsel moved to bar the testimony of a doctor on the basis of improper ex parte communications under Petrillo. Because the plaintiff had ample notice of the alleged ex parte communication and that the doctor would be called as a witness, the Seventh Circuit found that the district court did not abuse its discretion in refusing to hear plaintiff’s counsel’s motion. (Gong, 913 F.2d at 1273.) In the present case, plaintiff admittedly knew no later than December 13, 1988, that Dobben had engaged in ex parte communications with defense counsel and that defendant was using him as an expert. Nevertheless, plaintiff waited over 11 months before she filed her motion to bar Dobben based upon Petrillo. Then, plaintiff failed to seek a hearing on that motion until after the jury had been selected. Based upon the above-cited cases and the circumstances in the present case, we find that the circuit court was within its discretion to deny plaintiff’s motion to bar Dobben’s testimony. We, therefore, hold that by failing to assert her right in a timely manner, plaintiff waived the Petrillo issue.

Next, plaintiff argues that the circuit court improperly instructed the jury on the definition of proximate cause. The circuit court instructed the jury that proximate cause meant “that cause which, in natural or probable sequence, produced the injury complained of.” (Illinois Pattern Jury Instructions, Civil, No. 15.01 (2d ed. 1971) (hereinafter IPI Civil 2d).) Plaintiff tendered the full version of IPI Civil 2d No. 15.01, which adds: “It need not be the only cause nor the last or nearest cause. It is sufficient if it concurs with some other acting at the same time, which in combination with it, causes the injury.” (IPI Civil 2d No. 15.01.) During the instruction conference, plaintiff’s counsel argued that the long version was appropriate because “if [plaintiff] had prior pain, but [defendant] negligently performed surgery and caused her to have pain in that part of the face, I think the prior pain is really relevant.” Plaintiff argues that the long version should have been given because plaintiff’s alleged psychological condition purportedly contributed to the injury she sustained.

It is well established that the short version of IPI Civil 2d No. 15.01 is appropriate where the alleged other cause is a predisposition on the part of a plaintiff to sustain the particular injury. (Lounsbury v. Yorro (1984), 124 Ill. App. 3d 745, 752, 464 N.E.2d 866, 870.) The full version of IPI Civil 2d No. 15.01 is appropriate only in cases where there is evidence that something or the acts of someone other than the plaintiff and the defendant were a proximate cause of the injury; absent such evidence, the short version must be given. (Lounsbury, 124 Ill. App. 3d at 751-52, 464 N.E.2d at 870; Lewis v. W.F. Smith & Co. (1979), 71 Ill. App. 3d 1032, 390 N.E.2d 39.) Whether plaintiff’s alleged psychological condition may have predisposed her to feel pain or experience more severe pain does not warrant giving the full version of IPI Civil 2d No. 15.01. Moreover, the full version is proper only where there is evidence of actions of another person which contributed to the injury. (Lindsay v. Appleby (1980), 91 Ill. App. 3d 705, 414 N.E.2d 885.) Since there was no evidence that any other person contributed to plaintiff’s alleged injuries, we hold that the circuit court properly gave the short version of IPI Civil 2d No. 15.01.

Plaintiff also argues that the circuit court improperly instructed the jury on the law of informed consent. Plaintiff tendered two instructions to the trial court relating to the issue of informed consent. The proposed instructions stated:

“A surgeon must obtain the informed consent of a patient before operating upon her.”

And:

“When I use the term ‘informed consent’ in these instructions, I mean the duty of a surgeon to inform a patient of the foreseeable risks or results of the proposed surgery and the available alternatives.”

The circuit court gave the following informed consent instruction tendered by defendant:

“A surgeon must obtain the informed consent of a patient before operating upon her.
In obtaining informed consent, a surgeon must tell the patient of those risks or results of the proposed surgery and available alternatives, if any, which a reasonable well-qualified surgeon in the same field practicing in the same locality or in similar cases and circumstances.
The only way in which you may decide whether the defendant obtained informed consent which the law required of him is from the evidence presented in this trial by doctors called as expert witnesses.
You must not attempt to determine this question from any personal knowledge you have.”

Plaintiff’s offered informed consent instructions contain considerable omissions when compared with the given instruction. The given informed consent instruction, even though given before the third edition of IPI was available, is a near verbatim equivalent of IPI’s third edition number 105.07.01. Regardless, the circuit court may refuse an instruction which accurately states the law if it is misleading or argumentative. (Chakos v. Illinois State Toll Highway Authority (1988), 169 Ill. App. 3d 1018, 524 N.E.2d 615.) Because of its omissions, the circuit court properly refused to give plaintiff’s tendered informed consent instructions. We hold that the circuit court was within its discretion when it gave defendant’s tendered informed consent instruction.

In addition, plaintiff argues that defendant’s behavior during trial was so prejudicial as to deny her a fair trial. During direct examination, defendant related his testimony to a personal experience of a juror which was disclosed during voir dire. Plaintiff’s counsel did not object at that time. Only when defendant inquired whether the jury could see what he was explaining, did plaintiff’s counsel object. The circuit court admonished defendant not to address the jurors. Thereafter, defendant never addressed the jurors. There is nothing to suggest that defendant’s actions prejudiced the plaintiff, and therefore, we find that plaintiff was not denied a fair trial due to defendant’s direct examination testimony.

Plaintiff also argues that defendant’s crying during closing argument prejudiced her. After reviewing the record, we found no indication that defendant cried during argument. Since any doubt arising from the incompleteness of the record is resolved against the appellant (Riopelle v. Northwest Community Hospital (1990), 195 Ill. App. 3d 750, 755, 552 N.E.2d 1220, 1223, citing Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 459 N.E.2d 958), we find that plaintiff was not denied her right to a fair trial.

Lastly, plaintiff argues that the jury’s verdict was against the manifest weight of the evidence. When considering whether a verdict was against the manifest weight of the evidence, a reviewing court must view the evidence in the light most favorable to the appellee. (Ford v. City of Chicago (1985), 132 Ill. App. 3d 408, 412, 476 N.E.2d 1232, 1236.) The weight accorded the expert testimony is decided by the trier of fact. (In re Glenville (1990), 139 Ill. 2d 242, 565 N.E.2d 623.) This case, like many medical malpractice cases, was a battle of the experts. Dobben testified that the surgery was indicated and absolutely within the standard of care. The jury heard the testimony regarding the procedure by which plaintiff’s consent was received. Illinois law dictates that a new trial will not be granted merely because the evidence was conflicting. (Villa v. Crown Cork & Seal Co. (1990), 202 Ill. App. 3d 1082, 1089, 560 N.E.2d 969, 973.) In the present case, the medical expert testimony is merely conflicting, and when viewing the remainder of the evidence in a light most favorable to the defendant, we find that the verdict was not against the manifest weight of the evidence.

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

Affirmed.

CAMPBELL and O’CONNOR, JJ., concur.


author: JUSTICE MANNING

text:
    IARA QUINTANA, Plaintiff-Appellant, v. THE CITY OF CHICAGO, Defendant-Appellee (Robert Wilson, Defendant).
    First District (1st Division)
    No. 1—90—1447
    Opinion filed June 22,1992.

      Leonard M. Ring and Margaret A. McGuire, both of Chicago, for appellant.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Jean Dobrer and Barbara McDonald, Assistant Corporation Counsel, of counsel), for appellee.
   JUSTICE MANNING

delivered the opinion of the court:

Plaintiff, Iara Quintana, brought a negligence action against the City of Chicago and four individual drivers for injuries she sustained when she was struck by an automobile while crossing a Chicago street where the traffic lights in the intersection were inoperative.

About 7 a.m. on August 17, 1983, plaintiff exited a bus at Roosevelt Road in Chicago where she observed an inoperative traffic light. Before crossing the street, she noticed that the traffic northbound and southbound was moving, and that the eastbound and westbound traffic was stopped.

At that time, Karen Heath drove southbound on California Avenue, proceeded through the intersection of Roosevelt Road when her car collided with a car driven by Robert Wilson, who was proceeding westbound on Roosevelt Road. One or both of the cars then spun around, slid into a third car, entered the intersection and struck plaintiff as she walked across the street. Plaintiff testified that she did not know which vehicle struck her.

Both Heath and Wilson testified in deposition that they observed the inoperative traffic lights and stopped at the intersection before proceeding through it. Heath testified that she did not see any traffic at the intersection or closely approaching it when she arrived at the intersection. Wilson testified that his automobile was in the intersection when Heath drove her vehicle through the intersection without stopping.

The lawsuit against Heath was discharged in bankruptcy and there was a pending action against Wilson. The City of Chicago filed a motion for summary judgment based upon the theory that its failure to maintain a traffic control signal was not the proximate cause of plaintiff’s injuries. The trial court granted this motion.

Plaintiff argues on appeal that the trial court erred: (1) in entering summary judgment in favor of the City of Chicago where it was reasonably foreseeable that a collision would occur when all four traffie control signals were inoperative; and (2) that the trial court erred in determining that the drivers’ conduct violated a statute as a matter of law when there was conflicting testimony as to their conduct.

Plaintiff maintains that the injuries she received were the result of the inoperative traffic lights controlled by the City of Chicago. She asserts that a collision was reasonably foreseeable where a traffic signal was inoperative at the intersection of two major thoroughfares on a rainy morning.

Plaintiff further asserts that the city is liable for her injuries because the inoperative traffic lights were one of the proximate causes of her injuries. She cites Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 88, 199 N.E.2d 769, for that proposition. Plaintiff maintains that where an independent or intervening cause is foreseeable or probable, the causal connection is not broken. (Ray v. Cock Robin, Inc. (1974), 57 Ill. 2d 19, 310 N.E.2d 9.) Plaintiff contends that whether a defendant’s conduct is to be considered as a proximate cause of the injury presents a question to be determined by the trier of fact. (Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74, 84, 117 N.E.2d 74.) She asserts that the intervening act that caused her injuries was the collision between the vehicles driven by Heath and Wilson, and therefore, the injuries were within the scope of risk created by the inoperative traffic lights.

Defendant asserts that plaintiff’s injuries did not flow naturally from the inoperative traffic lights. It asserts that the conduct of the drivers in violation of traffic laws was the proximate cause of plaintiff’s injuries. Defendant further maintains that the drivers’ conduct was an effective intervening cause not reasonably anticipated to occur.

The negligence of a defendant will not constitute a proximate cause of a plaintiff’s injuries if some intervening act supersedes the defendant’s negligence, but if the defendant could reasonably foresee the intervening act, that act will not relieve the defendant of liability. Bentley v. Saunemin Township (1980), 83 Ill. 2d 10, 413 N.E.2d 1242.

Under the Restatement (Second) of Torts §435 (1965):

“(1) If the actor’s conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable.
(2) The actor’s conduct may be held not to be a legal cause of harm to another where after the event and looking back from the harm to the actor’s negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm.”

Cox v. Stutts (1985), 130 Ill. App. 3d 1018, 474 N.E.2d 1382.

If the negligence charged does nothing more than furnish a condition by which the injury is made possible and that condition causes an injury by the subsequent, independent act of a third person, the creation of the condition is not the proximate cause of the injury where the subsequent act is an intervening efficient cause which breaks the causal connection between the original wrong and the injury, and itself becomes the proximate or immediate cause. Novander v. Morris (1989), 181 Ill. App. 3d 1076, 1078, 537 N.E.2d 1146.

Installation of traffic control devices in a reasonably safe manner is part of a municipality’s duty to maintain its public highways in reasonably safe condition and failure of such devices installed by the municipality to comply with specifications stated in the State manual could result in a breach of that duty. Parsons v. Carbondale Township (1991), 217 Ill. App. 3d 637, 577 N.E.2d 779.

Here, defendant asserts that no negligence can be charged to the City of Chicago where either one or both of the drivers involved in the collision violated a statutory law. Defendant maintains that the Illinois legislature has provided that in the event a traffic signal becomes inoperative, traffic drivers are to treat the inoperative light as a stop sign. (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 305(e).) That section states that “[t]he driver of a vehicle approaching a traffic control signal on which no signal light facing such vehicle is illuminated shall stop before entering the intersection in accordance with rules applicable in making a stop at a stop sign.”

Both Heath and Wilson testified that as they approached the intersection they observed that the traffic lights were inoperative. They each also testified that they came to a stop before entering the intersection. Their testimony conflicts as to what occurred after that point. Defendant maintains that the reasonable inference to be drawn is that one of the two did not comply with the statutory requirements. Thus, the inoperative signal lights were not the cause of plaintiff’s injuries. Rather, her injuries were caused by the conduct of the drivers.

We find, as the court did in Novander, that the inoperative traffic lights were just a condition by which the injury was made possible. Any causal connection between the original wrong and the injury was broken by the conduct of the drivers. Further, there is a statutory provision governing the conduct of drivers when a traffic signal is inoperative. (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 305(a).) For the above reasons, we cannot say that the trial court erred in entering summary judgment in favor of defendant.

Plaintiff next argues that the trial court erred in determining that defendants’ conduct violated a statute as a matter of law. Specifically, he asserts that there was conflicting testimony as to plaintiff’s testimony and, thus, a question of material fact existed.

Summary judgment shall be rendered without delay if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005.) A motion for summary judgment is properly granted where no triable issue of fact exists. (Waite v. Chicago Transit Authority (1987), 157 Ill. App. 3d 616, 619, 510 N.E.2d 1176.) Although defendant is not required to disprove plaintiff’s case, it may meet its burden in moving for summary judgment by establishing the absence of a genuine issue of material fact. Parsons v. Carbonadale Township (1991), 217 Ill. App. 3d 637, 577 N.E.2d 779.

In a cause of action alleging negligence, the plaintiff must establish the existence of a duty, a breach of that duty, and an injury proximately resulting from the breach of that duty. (Wojdyla v. City of Park Ridge (1991), 209 Ill. App. 3d 290, 568 N.E.2d 144.) Motions for summary judgment properly address duty. Wojdyla, 209 Ill. App. 3d at 293, 568 N.E.2d at 145.

In this case, the drivers both admitted that they stopped at the intersection before proceeding. There is conflicting testimony as to which driver entered the intersection first. However, this fact becomes immaterial as to the city’s liability. The fact that one of the parties failed to comply with the statute either by not yielding to the other, or proceeding into the intersection without stopping, violated section 11 — 305(e) (Ill. Rev. Stat. 1989, ch. 95V2, par. 11 — 305(e)).

In Boylan v. Martindale (1982), 103 Ill. App. 3d 335, 341, 431 N.E.2d 62, the court held that if an alleged negligent act does nothing more than furnish a condition making the injury possible, and such condition, by the subsequent independent act of a third party, causes the injury, the two acts are not concurrent, and the condition will not be the proximate cause for the injury. In that case, the plaintiff was a passenger in a vehicle whose driver disregarded a red light while rushing to the hospital and was struck by the defendant’s vehicle. Plaintiff sued the city on the theory that the cross traffic could not be seen because of the city’s failure to remove or trim trees and bushes. The reviewing court upheld the trial court’s granting of summary judgment in favor of the city on the basis that, at worst, the city had only permitted a condition and that the disregard of the red light was the proximate cause of plaintiff’s injuries.

Similarly, in the instant case, the inoperative traffic lights were, at worst, a condition that the city permitted. The failure of one of the drivers to comply with the statutory requirements was the proximate cause of plaintiff’s injuries. Although the parties admitted to complying with the statute by stopping at the intersection, if the statute had been complied with then the accident would not have happened in the manner it did. Therefore, we find that the trial court did not abuse its discretion in granting summary judgment in favor of the City of Chicago.

Accordingly, the order of the circuit court of Cook County is affirmed.

Affirmed.

BUCKLEY, P.J., and O’CONNOR, J., concur.


text:
    RONALD R. NORRIS et al., as Trustees of the Board of Trustees of the Policemen’s Annuity and Benefit Fund, et al., Plaintiffs-Appellants, v. THE CITY OF CHICAGO, Defendant-Appellee.
    First District (1st Division)
    No. 1—90—1559
    Opinion filed June 22,1992.

      Richard J. Puchalski, of Chicago, for appellants.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Lynn K. Mitchell and Jean Dobrer, Assistant Corporation Counsel, of counsel), for appellee.
   JUSTICE MANNING

delivered the opinion of the court:

This is an appeal from a trial court order granting the defendant City of Chicago’s motion for judgment on the pleadings. The plaintiffs filed an action to compel the City of Chicago (City) to increase its contributions to the pension fund to cover hours worked by off-duty Chicago police officers under the voluntary Special Employment Program (SEP) of the Chicago police department (CPD). The trial court held that the City was not required to increase its contribution to the pension fund and also denied plaintiffs’ cross-motion for summary judgment.

In February 1989, the plaintiffs, trustees and beneficiaries of the Policemen’s Annuity and Benefit Fund of the City of Chicago, filed an action for declaratory judgment against defendants City of Chicago, Chicago Housing Authority (CHA), and Chicago Transit Authority (CTA). The basis of plaintiffs’ complaint was that the defendant was legally obligated to make additional pension contributions to the CPD pension fund because of the SEP. They also alleged that the defendant breached its written contracts which required payment of pension benefits to the pension fund.

In April 1989, defendant filed its answer and affirmative defenses. The defendant admitted that under the SEP only police officers were employed and that they remained under the supervision and control of the CPD. The defendant also admitted that the officers used the CPD’s equipment, and that all the officers were paid out of the CPD’s payroll system, but that the pay was taken out of funds advanced to the defendant by the cooperating agencies. The defendant asserted that the funds did not come out of its annual appropriation for police salaries. The arrangement for payment under the SEP was that the defendant paid the officers for SEP hours, and the CHA and CTA reimbursed the defendant for those payments, along with an additional 10%. The defendant maintained that the additional amount was to cover costs for court appearances related to SEP work for time lost and medical benefits paid by the defendant due to an injury any officer received while engaged in SEP work, and for administrative overhead.

On January 18, 1990, plaintiffs filed their first amended complaint for declaratory judgment. In count II of the amended complaint they alleged that the unpaid contribution amounted to $1 million. In count III plaintiffs alleged that contractual provisions in the intergovernmental cooperative agreement between the CPD, the CHA and CTA required the defendant to pay an additional 10% of monies paid by CHA and CTA into the pension fund. The CHA and CTA were dismissed as party defendants to the action, and on October 12, 1989, plaintiffs filed a cross-motion for partial summary judgment.

On May 24, 1990, the court granted defendant’s motion for judgment on the pleadings and denied plaintiffs’ cross-motion for partial summary judgment. Plaintiffs argue that the trial court erred in granting defendant’s motion, specifically contending that under the well-established principle of statutory construction, a reading of the statute at issue here supports their theory that defendant is liable.

The statute at issue here is the Illinois Pension Code (Ill. Rev. Stat. 1989, ch. lOS1^, par. 1 — 101 et seq.). Plaintiffs maintain that sections 5 — 114, 5 — 168, 5 — 176, 5 — 177 and 5 — 225 read together make clear that the legislature intended that it was mandatory for the City of Chicago to fund and finance police pensions for the City’s police based on the wages earned from the SEP. In pertinent part these sections state:

“5-114. Salary. ***
* * *
(d) Beginning July 1, 1933, annual salary of a policeman appropriated for members of his rank or grade in the city’s annual budget or appropriation bill, subject to the following:
(1) For age and service annuity, minimum annuity and disability benefits, the amount of annual salary without limitation.” Ill. Rev. Stat. 1989, ch. IO8V2, par. 5 — 114.
“5 — 168. Financing. The city shall levy a tax annually upon all taxable property therein for the purpose of providing revenue for the fund.
The tax shall be at a rate that will produce a sum which, when added to the amounts deducted from the policemen’s salaries, is sufficient for the purposes of the fund.” Ill. Rev. Stat. 1989, ch. IO8V2, par. 5-168.
“5 — 176. Cost of administration. The city shall contribute the entire costs of administration of the fund from revenue derived from the taxes authorized to be levied for the fund.” Ill. Rev. Stat. 1989, ch. ÍOS1^, par. 5 — 176.
“5 — 177. Other city contributions — Estimates. The board shall estimate the amount required each year to be contributed by the city to pay all annuities and benefits hereunder and administrative expenses. All amounts shall be paid annually by the city into the fund from taxes levied and collected for the fund.” Ill. Rev. Stat. 1989, ch. ÍOS1^, par. 5 — 177.
“5 — 225. Duty to comply with Article. It shall be the duty of all officers, officials, and employees of such city to perform any and all acts required to carry out the intent and purposes of this Article.” Ill. Rev. Stat. 1989, ch. lOSVa, par. 5 — 225.

Plaintiffs maintain that inherent in the SEP is additional risk and liability to the pension fund, and that under article 5 the defendant is obligated to make additional pension contributions. Plaintiffs argue that the determination of the intent of the General Assembly is best evidenced by the language the legislature used. (County of Du Page v. Graham, Anderson, Probst & White, Inc. (1985), 109 Ill. 2d 143, 485 N.E.2d 1076.) Where the language of the statute is unambiguous, a court must enforce the law as enacted without considering other aids. (Kozak v. Retirement Board of the Firemen’s Annuity & Benefit Fund (1983), 95 Ill. 2d 211, 447 N.E.2d 394.) If the language is clear and unambiguous, and if the legislative intent can be ascertained therefrom, it must prevail and will be given effect without resorting to other aids for construction. In re Marriage of Logston (1984), 103 Ill. 2d 266, 469 N.E.2d 393.

Plaintiffs also maintain that section 5 — 255 mandates that City officials perform any and all acts required to carry out the intent and purposes of article 5 of the Pension Code. Plaintiffs assert that under section 5 — 177 the City is obligated to finance and fund the police pension fund based upon the needs and requirements of the fund.

Defendant contends that the trial court properly granted judgment on the pleadings because neither the Pension Code nor the cooperative agreements entitle plaintiffs to the relief they seek. Defendant asserts that the Pension Code unambiguously requires the City to contribute certain amounts into the pension fund. Those amounts are all calculated as percentages of the “salary” paid to each police officer. Of each salary, payment is made into the fund for age and service annuities. (Ill. Rev. Stat. 1989, ch. 108x/2, par. 5 — 169.) Specifically, the City is to contribute 95/v% of each salary payment into the fund, and 2% of each salary payment into the fund for widows’ annuities (Ill. Rev. Stat. 1989, ch. 108x/2, par. 5 — 170), and $224,000 into the fund for death benefits (Ill. Rev. Stat. 1989, ch. IO8V2, par. 5 — 171).

The City argues that the wages paid for SEP work did not constitute “salary” within the statutory definition, because the source of the SEP wages was not the City’s annual appropriations. The wages came from money prepaid to the City by the CHA and the CTA, pursuant to the intergovernmental cooperative agreement. The City relies on section 5 — 114(d) of the Pension Code, where “salary” is defined as the “annual salary of a policeman appropriated for members of his rank or grade in the city’s annual budget or appropriation bill.” (Ill. Rev. Stat. 1989, ch. 108x/2, par. 5 — 114(d).) The City maintains that plaintiffs cannot overcome the plain meaning of specific statutory language, and that where the language is unambiguous, a court must enforce the law as enacted without considering other aids. County of DuPage v. Graham, Anderson, Probst & White, Inc. (1985), 109 Ill. 2d 143, 151, 485 N.E.2d 1076; Bovinette v. City of Mascoutah (1973), 55 Ill. 2d 129,133, 469 N.E.2d 393.

Defendant additionally points out that under the statute the board of trustees has the discretion to determine the amount needed for the fund and that plaintiffs did not allege that the City failed to contribute the amount that the board requested.

Plaintiffs make a second argument that the trial court erred in denying their cross-motion for summary judgment on the theory on contractual liability. Plaintiffs cite to paragraph 8 of the agreement between the CTA and the City, which provides:

“8. Reimbursement by CTA. Provided that in no event shall CTA reimburse the Chicago Police Department more than $5,000,000 per annum, CTA shall be responsible for reimbursing Chicago Police Department for all wages paid under paragraph 7 herein, including any retroactive increase, premium and/or overtime pay, if any, plus ten percent (10%) of those wages, said ten percent (10%) being deemed to cover:
(a) Pay for court appearances relating to work on the CTA special detail;
(b) Pay for time lost and medical benefits paid due to injury while engaged in work as part of a CTA special detail;
(c) Administrative overhead.”

Similarly, paragraph 7 of the agreement between the City and the CHA provides:

“7. Reimbursement by CHA. Provided that in no event shall CHA reimburse the Chicago Police Department more than $1,484,032 for the remainder of this calendar year, CHA shall be responsible for reimbursing Chicago Police Department for all wages paid under paragraph 6 herein, including any premium and/or overtime pay, if any, plus ten percent (10%) of those wages, said ten percent being deemed to cover:
(a) Pay for court appearances relating to work on the CHA special detail;
(b) Pay for time lost and medical benefits paid due to injury while engaged in work as part of a CHA special detail;
(c) Administrative overhead.”

Plaintiffs argue that, based on the theory of third-party beneficiary, the CHA and CTA contemplated that payments were to be made to the pension fund for the benefit of police officers who were killed or injured. Thus, they maintain that the pension fund was a third-party beneficiary under paragraph 8 of the CTA agreement and paragraph 7 of the CHA agreement.

Defendant counters by arguing that the pension fund is not a party to this action and that plaintiffs lack standing to raise such a claim. Defendant cites to section 1 — 115 (Ill. Rev. Stat. 1989, ch. lOSVa, par. 1 — 115), which states in pertinent part:

“A civil action may be brought by the Attorney General or by a participant, beneficiary or fiduciary in order to:
* * *
(b) Enjoin any act or practice which violates any provision of this code.”

Defendant further maintains that because the pension fund was not a party to the intergovernmental cooperative agreement, it has no standing to raise a pension fund claim. Defendant asserts that a third party’s right to benefit from a contract exists only if the contracting parties have manifested in their contract an intention to confer a benefit upon the third party. This intention must affirmatively appear from the language of the instrument when properly interpreted and construed. (Altevogt v. Brinkoetter (1981), 85 Ill. 2d 44, 54, 421 N.E. 2d 182.) Defendant contends that the 10% excess reimbursement was meant to cover the City’s administrative overhead, court costs, lost time and medical benefits attributable to the SEP. Thus, it was not to benefit the pension fund.

The fundamental rule of statutory construction is to give effect to the intent of the legislature. (State v. Mikusch (1990), 138 Ill. 2d 242, 562 N.E.2d 168.) If the meaning of a statute or ordinance is clearly expressed in the language of the statute or ordinance, the courts cannot imply any other meaning. Triple A Service, Inc. v. Rice (1989), 131 Ill. 2d 217, 545 N.E.2d 706.

In this case, plaintiffs rely on sections 5 — 114, 5 — 168, 5 — 176, 5 — 177 and 5 — 225 of the Pension Code in asserting that defendant was obligated to contribute additional amounts to the pension fund. However, section 5 — 168 states that the board has the discretion to determine what amount of contribution by the City to the fund will yield an amount “sufficient for the purposes of the fund.” (Ill. Rev. Stat. 1989, ch. ÍOS1^, par. 5 — 168.) Further, sections 5 — 169, 5 — 170 and 5 — 171 establish what percentage of each salary paid to an officer shall be contributed into the fund for age and service annuities and for widows’ annuities. Moreover, “salary” is defined by the Pension Code as the “annual salary of a policeman appropriated for members of his rank or grade in the city’s annual budget or appropriation bill.” (Ill. Rev. Stat. 1989, ch. IO8V2, par. 5 — 114(d).) Thus, the statute is clear and unambiguous.

There is no language in the cooperative agreement that suggests that defendant should or is obligated to contribute any monies from the SEP into a pension fund for the police officers that participate. Plaintiffs point to the reimbursement provision of the agreements as their support for this contention. However, their contention is unsupported by the language in the agreements. The only reference made in the agreements is that participating agencies shall contribute 10% overage to be allocated toward: (a) court appearances; (b) time lost and medical benefits paid due to injury while engaged in work; and (c) administrative overhead. Because of these specific enumerations of how the funds were to be allocated, it cannot be implied that the defendant was under an obligation to contribute to the pension fund. Had the parties so agreed, it should have been specifically stated.

Plaintiffs’ argument regarding a contractual obligation based on a third-party beneficiary theory is also unsupported by the agreements. There is no mention at all in the agreements that payments were to be made to the pension fund from wages earned from the SEP. Further, the additional payments which the police officers received cannot be considered salary where the only reason that such payments were available resulted from the creation of the SEP. The money was not appropriated by the defendant, and the arrangement between the defendant and the participants in the SEP did not specifically address that issue.

A motion for judgment on the pleadings admits the facts well pleaded by the opposite party and seeks judgment on the question of law raised by the pleadings. (Vermeil v. Jefferson Trust & Savings Bank (1988), 176 Ill. App. 3d 556, 532 N.E.2d 288.) The question thus becomes, whether, as a matter of law, the plaintiffs could not succeed on the claims presented. In the instant case, the statute is clear and the agreements set forth the conditions by which the parties agreed to be bound. As a matter of law the defendant was not obligated to make the additional payments as asserted by plaintiffs. Therefore, the trial court did not err in granting defendant’s motion for judgment on the pleadings.

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

Affirmed.

CAMPBELL and O’CONNOR, JJ., concur.