author: JUSTICE BUCKLEY

text:
    MARTIN ARELLANO, Plaintiff-Appellant and Cross-Appellee, v. S G L ABRASIVES, Defendant-Appellee and Cross-Appellant.
    First District (1st Division)
    No. 1 — 91—0157
    Opinion filed May 3, 1993.

      Beermann, Swerdlove, Woloshin & Barezky, of Chicago (Alvin R. Becker and Timothy M. Kelly, of counsel), for appellant.
    Burditt & Radzius, Chartered, of Chicago (Matthew J. Iverson and Joel R. Skinner, of counsel), for appellee.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Plaintiff Martin Arellano filed a one-count, strict products liability action against defendant SGL Abrasives for personal injuries suffered when a grinding wheel which defendant allegedly manufactured broke during use. Defendant responded and admitted that it manufactured grinding wheels which it sold to plaintiff’s employer, but denied any defect, and charged plaintiff with assumption of risk and misuse. The jury returned a general verdict in plaintiff’s favor for $274,298, but reduced the award by 70% based on product misuse. Pursuant to post-trial motions, the court vacated the jury’s misuse finding and entered judgment notwithstanding the verdict (judgment n.o.v.) in favor of defendant. Plaintiff appeals the grant of defendant’s judgment n.o.v. motion. Defendant cross-appeals the vacation of the jury’s misuse finding and challenges an instruction given to the jury.

Plaintiff testified at trial that for 12 years he worked in a foundry for National Castings Corporation (Castings) as a welder and grinder. When working as a grinder, plaintiff would grind excess metal off of metal forgings by means of a grinding wheel mounted on a grinding machine. Plaintiff would wear a hard hat, special safety glasses, a leather apron down to his knees, shin guards and steel-toed shoes. None of the grinding machines at Castings were equipped with guards. Plaintiff used the same type of grinding wheel and grinder the entire time he worked at Castings.

On September 20, 1978, plaintiff was working the 4 p.m. to midnight shift. At about 7:30 p.m., he was grinding a piece of metal when his grinding wheel “exploded.” Plaintiff was not injured.

Plaintiff picked up the pieces of the broken grinding wheel, took them to his foreman and asked for a new wheel. New grinding wheels were kept in a box and packed in protective wrapping.

Plaintiff’s foreman gave plaintiff a second wheel from the same box as the prior wheel. Before mounting it himself, plaintiff inspected the grinding machine for damage but found none. Plaintiff mounted the second grinding wheel the same way he had always done. He made sure the wheel was mounted properly before he started grinding. No washer was required for the grinding wheel which plaintiff was using.

After grinding against a work piece for 10 to 15 minutes, the second grinding wheel exploded. A piece of the wheel struck plaintiff above the left knee, piercing his leather apron, and breaking his thigh bone. Plaintiff was taken to the hospital for his injuries and, as of trial, had not returned to work.

Because he was injured, plaintiff does not know what happened to the pieces of the second grinding wheel. Plaintiff never experienced a grinding wheel exploding in his 12 years of work.

Harold Van Orden, a 25-year employee of defendant, was called as an adverse witness and by the defense. On September 26, 1987, Van Orden examined fragments of a wheel sent to defendant by Castings. Defendant had manufactured the wheel, but the wheel may not have been the one which injured plaintiff. The wheel had little wear on it. Van Orden opined that no defect existed in the wheel he examined. Defendant subsequently destroyed the wheel which Castings had sent. No one from Castings indicated to defendant that the shipped wheel was the one which injured plaintiff or that it was involved in an injury-related accident.

When defendant receives a grinding wheel order, a computer generates a card with defendant’s specifications, and a mold is assembled. Based on the volume of the mold, a recipe of abrasive grain, powdered bond and viscous liquid is mixed, poured, rotated, compressed, baked, shaped and balanced. After speed testing, detailed below, the wheels are packed in a cardboard box with safety instructions and shipped.

During speed testing, each wheel is spun at IV2 times the maximum speed marked on the wheel. The entire test takes five to six seconds. According to Van Orden, if a defect existed in a wheel, it would not survive the speed test. The speed testing would reveal a defect even though no pressure is applied to the grinding wheel during the test; actual grinding adds little stress to a rotating wheel. Despite speed testing, about 200 wheels had been returned to defendant between 1978 and 1990.

Van Orden testified that Castings was defendant’s customer in 1978. In September 1978, defendant sent Castings 209 new grinding wheels. Defendant’s records showed that the 209 wheels it sent to Castings were speed tested on September 6 and September 11, 1978.

Defendant does not know what happened to the wheel which injured plaintiff. Defendant did not learn that plaintiff was injured until defendant received plaintiff’s complaint, some two years following the accident.

The defense called John Gradowski, the director of human resources for Castings. In 1978, Gradowski was Castings’ safety director. Gradowski examined what he “believed” to be the grinder which plaintiff was using at the time of injury. Gradowski personally observed a washer on the spindle of the grinding machine. The spindle is the device which goes through the hole in the center of the grinding wheel, holding it in place. Gradowski did not know whether the grinding machine he observed had been altered in any way following plaintiff’s injury.

George Reitmeier, defendant’s liability expert, testified that grinding machine guards were available and the industry standard at the time of injury. He opined that plaintiff would not have been injured by the wheel when it broke if the required guard had been in place.

Reitmeier further opined that any defect in defendant’s wheels would be discovered during speed testing or when the machine was started. A wheel breaking after 10 or 15 minutes of use without incident indicated the occurrence of damage to the wheel after manufacturing or operator misuse. Reitmeier believed that is what happened to the broken grinding wheel which Castings had sent back to defendant for examination following plaintiff’s injury. The wheel fragments so returned yielded no sign of a manufacturing defect.

Reitmeier testified that it would be a violation of industry standards to utilize a washer when installing a grinding wheel. Such a washer would overstress the center mounting hole, increasing the tendency of the wheel to break. The wheel returned to defendant revealed a break pattern similar to the type produced when a wheel breaks with a washer improperly mounted.

Plaintiff offered no rebuttal evidence and no expert testimony whatsoever.

On appeal, we are first asked to address whether the trial court properly entered judgment n.o.v. in favor of defendant. (See Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) Apart from arguing that judgment n.o.v. was properly entered, defendant makes the further argument that judgment n.o.v. was properly entered where plaintiff failed to make a prima facie case. We address this latter argument first.

To recover under strict liability in tort, “plaintiffs must prove that their injury or damage resulted from a condition of the product, that the condition was an unreasonably dangerous one and that the condition existed at the time it left the manufacturer’s control.” (Surada v. White Motor Co. (1965), 32 Ill. 2d 612, 623, 210 N.E.2d 182, 188.) A prima facie case that a product was defective and that the defect existed when it left the manufacturer’s control is made by proof that in the absence of abnormal use or secondary causes, the product failed to perform in the manner reasonably to be expected in light of its nature and intended function. (Tweedy v. Wright Ford Sales, Inc. (1976), 64 Ill. 2d 570, 574, 357 N.E.2d 449, 452; Varady v. Guardian Co. (1987), 153 Ill. App. 3d 1062, 1066, 506 N.E.2d 708, 711.) These matters may be proved inferentially by either direct or circumstantial evidence. (Bejda v. S G L Industries, Inc. (1980), 82 Ill. 2d 322, 330, 412 N.E.2d 464, 468.) It is not necessary for plaintiff to present proof that the product contained a specific defect. (Bejda, 82 Ill. 2d at 330, 412 N.E.2d at 468; Varady, 153 Ill. App. 3d at 1066-67, 506 N.E.2d at 711.) While strict liability cannot be based on mere speculation, guess, or conjecture, circumstantial evidence is sufficient to make out a prima facie case if it tends to negate other reasonable causes and justifies an inference of probability as distinguished from mere possibility. Varady, 153 Ill. App. 3d at 1067, 506 N.E.2d at 711.

Initially, we believe that plaintiff prima facie established that defendant, not some third party, manufactured the grinding wheel which caused his injury. Plaintiff introduced evidence of defendant’s shipment of grinding wheels to Castings just prior to the time when plaintiff was injured. Further, Harold Van Orden was questioned during plaintiff’s case in chief about an interrogatory answer in which he admitted that defendant manufactured the grinding wheel referred to in plaintiff’s complaint. Finally, no evidence existed that Castings received grinding wheels from other manufacturers. This evidence, we believe, allowed for the necessary inference that defendant manufactured the wheel which injured plaintiff.

Addressing the remainder of plaintiff’s prima facie case, we believe plaintiff’s testimony was sufficient to get to the jury on the issues of (1) whether a defective condition in the grinding wheel existed at the time the wheel left defendant’s control, and (2) whether such defect was unreasonably dangerous.

Plaintiff’s testimony was that he was a welder and grinder for 12 years. On the day of his injury, he was grinding for 15 minutes when the wheel suddenly exploded. Plaintiff obtained a second wheel from his foreman. This wheel was wrapped in protective paper and contained within a box. Plaintiff inspected his grinding machine for damage but found none. Plaintiff mounted the second wheel the same way he always did. Never in plaintiff’s experience had a wheel exploded before that day. Plaintiff knew that no washer was to be used in mounting this type of wheel. Plaintiff mounted the wheel and assured that it was properly mounted. He then began grinding and continued to grind in his usual manner. Fifteen minutes later, while grinding, this wheel exploded, injuring plaintiff.

We believe plaintiff’s testimony established a prima facie case. For 12 years, plaintiff never encountered an exploding wheel. The day he was injured, he mounted and used a new grinding wheel the same way he always had. After grinding for 15 minutes in his usual manner, the wheel exploded, causing his injury. Although plaintiff offered no eyewitness testimony, his testimony alone, if believed, allows for the necessary inference that the second grinding wheel contained a defect which existed at the time of manufacture rendering it unreasonably dangerous for its intended use.

The Illinois cases plaintiff cites in his brief support the result we reach. In Tweedy v. Wright Ford Sales, Inc. (1976), 64 Ill. 2d 570, 357 N.E.2d 449, plaintiff was injured while driving a 1966-model Ford LTD manufactured by defendant Ford Motor Company and delivered to defendant Wright Ford Sales, Inc., which in turn sold it to a member of plaintiff’s family. Plaintiff was injured when the automobile struck a tree after plaintiff allegedly applied the break pedal and emergency brake without success. Plaintiff offered no specific evidence of a defect. In affirming the jury verdict in favor of plaintiff, the court found the following evidence to have established plaintiff’s prima facie case:

“Here the evidence shows that the brakes of an automobile driven approximately 7,500 miles, inspected by Wright prior to delivery, inspected again at 6,000 miles, and subjected to no abnormal use prior to the occurrence failed to function in the manner reasonably to be expected. Plaintiff was driving carefully at a reasonable rate of speed, the weather was good, the roads were dry, he knew the intersection well, and there was no evidence of any reasonable secondary cause.” Tweedy, 64 Ill. 2d at 574-75, 357 N.E.2d at 452.

In Gillespie v. R.D. Werner Co. (1978), 71 Ill. 2d 318, 375 N.E.2d 1294, plaintiff sought compensation for personal injuries he suffered when an aluminum ladder manufactured by defendant R. D. Werner Company collapsed while plaintiff was doing electrical work. A jury returned a verdict in plaintiff’s favor, and the circuit court denied defendant’s judgment n.o.v. motion. The appellate court reversed, finding the circuit court erred in failing to grant defendant’s motion. On appeal, the supreme court reversed the appellate court and reinstated the verdict. As in Tweedy, plaintiff presented no evidence of a specific defect. The court found the following evidence to support the jury verdict:

“Here the evidence does not show ‘abnormal use or reasonable secondary causes.’ Gillespie and his aide, finding the ladder to be ‘new’ and nothing wrong with it, used it while doing electrical work above a drop ceiling. The helper handed tools to Gillespie, who was working almost directly overhead, so he did not have to descend. The various tools, when not in use, were apparently placed on a table in the room in which they were working. Gillespie denied he worked to the side in such a way as to cause an imbalance. The concrete floor was level and covered with tiles. The owner and operator of the company renting the ladder to Gillespie’s employer testified that it was his practice ‘to check and inspect all equipment’ he rented out. Given this evidence, it was reasonable for the jury to conclude there was an absence of abnormal use and that the ladder failed ‘to perform in the manner reasonably to be expected in light of’ its ‘intended function.’ [Citation.]” (Gillespie, 71 Ill. 2d at 322-23, 375 N.E.2d at 1296.)

(See also Mote v. Montgomery Ward & Co. (1984), 125 Ill. App. 3d 839, 466 N.E.2d 593; Varady, 153 Ill. App. 3d 1062, 506 N.E.2d 708.) Based on our review of plaintiff’s evidence, and consistent with the foregoing authorities, we believe that plaintiff established a prima facie case against defendant.

Turning to defendant’s judgment n.o.v. argument, we believe that judgment n.o.v. was improperly entered. Our review of the evidence leads us to conclude that it was not so overwhelmingly in favor of the defendant that a verdict in favor of plaintiff cannot stand. Our review of this issue is de novo, not deferential.

Much of defendant’s evidence could be rejected by the jury for foundation reasons. For example, a wheel which might have been the wheel which injured plaintiff was the subject of questioning during trial. Persuasive testimony at trial showed this wheel to have been manufactured properly. It broke due to post-manufacturing causes. However, because chain of custody was never established, this wheel was not proven to be the wheel which injured plaintiff. It is nowhere to be found.

Similarly, defendant offered testimony that a washer was observed to be on the spindle of the grinder which plaintiff was using at the time of his injury. The witness who saw this, however, did not know whether the grinder had been altered in any way or whether it was in fact plaintiff’s grinder. This grinder and the alleged washer were not introduced into evidence.

Further, testimony was presented that defendant’s shipments of grinding wheels sent to Castings in early September 1978 were speed tested prior to shipment. Arguably, testimony at trial established that speed testing would reveal any manufacturing defect in a grinding wheel so tested. However, no evidence exists that the wheel which caused plaintiff’s injury was part of this shipment. Also, plaintiff elicited that, despite speed testing, broken grinding wheels had been returned to defendant.

Defendant’s evidence, thus, did not necessarily exclude the existence of a defect. We agree that plaintiff’s case was not strong; however, contrary to defendant’s argument, defendant’s liability was not predicated on speculation and conjecture, and plaintiff did not rely on the “mere occurrence” of the incident to establish the existence of a manufacturing defect. As noted previously, plaintiff’s evidence demonstrated more than the mere explosion of defendant’s grinding wheel. He testified to being an experienced welder and grinder who was injured while utilizing a new grinding wheel after normally mounting it and using it normally for a short period of time. The acceptance or rejection of plaintiff’s testimony was, in the end, for the jury to decide. We will not disturb on review the jury’s decision to resolve factual conflicts and credibility determinations against defendant. For the foregoing reasons, we reverse the circuit court’s grant of defendant’s judgment n.o.v. motion and reinstate the verdict.

We now address defendant’s cross-appeal. Defendant’s principal argument is that we should reinstate the jury’s 70% finding of misuse. In support, defendant argues that plaintiff’s use of the grinding wheel without a guard constituted misuse.

We rely on Varilek v. Mitchell Engineering Co. (1990), 200 Ill. App. 3d 649, 558 N.E.2d 365, to affirm the circuit court’s vacation of the jury’s misuse finding. In Varilek, plaintiff was injured when he fell from the roof of a building during construction. Plaintiff sued the supplier of roof panels, alleging that an oil coating on the panels made them unreasonably dangerous for their intended use. The jury found in favor of plaintiff, but reduced his damages by 63% based on misuse and assumption of risk. The Varilek court vacated these findings on the ground they were improper as a matter of law.

As to misuse, the court explained that product misuse is an affirmative defense which operates to reduce a plaintiff’s recovery by the amount of fault apportioned to him. Misuse of a product occurs when it is used for a purpose neither intended nor reasonably foreseeable by the defendant based on an objective standard. The manner in which the particular purpose was being accomplished is not an issue under a theory of misuse. Varilek, 200 Ill. App. 3d at 666-67, 558 N.E.2d at 377.

In this case, defendant’s claim that plaintiff misused the grinding wheel by failing to use a guard is unpersuasive. Plaintiff was clearly doing an act of grinding when injured. Grinding is an intended and reasonably foreseeable use of a grinding wheel. The absence of the guard goes to the manner in which the grinding wheel was being used. If anything, plaintiff was contributorily negligent in using the grinder without a guard. Contributory negligence, however, is not a defense to strict liability. Simpson v. General Motors Corp. (1983), 118 Ill. App. 3d 479, 455 N.E.2d 137, aff’d (1985), 108 Ill. 2d 146, 483 N.E.2d 1.

Having found the court’s vacation of misuse proper, we address defendant’s argument that a new trial is required because the question of misuse was so linked to the jury’s findings of liability and damages that the vacation of the misuse finding requires the vacation of the others as well. We disagree.

The jury was instructed in this case that it was first to determine the amount of damages to which plaintiff was entitled if it found defendant liable. Next, if the jury believed that plaintiff had misused the product, it was required to “determine what portion or percentage is attributable solely to the plaintiff’s conduct in misusing the grinding wheel.” The jury’s final directive was to “reduce the total amount of plaintiff’s damages by the proportion or percentage of plaintiff’s misuse of the grinding wheel.” This amount was the jury’s verdict.

We believe the foregoing instructions demonstrate that our vacation of the jury’s misuse finding does not require that we also vacate the jury’s liability and damage determinations. These were separate inquiries under the instructions, and defendant has directed us to no evidence that the jury ignored the instructions it received.

Varilek v. Mitchell Engineering Co. (1990), 200 Ill. App. 3d 649, 558 N.E.2d 365, upon which defendant relies, remanded for a new trial because evidence was improperly excluded. The new trial awarded there was not predicated upon the interrelated nature of misuse, liability and damages.

Defendant’s final argument in its cross-appeal is that a new trial is required because the jury received an erroneous jury instruction. Defendant directs this court to the issue instruction predicated on Illinois Pattern Jury Instructions, Civil, No. 400.01 (3d ed. 1992), which informed the jury that plaintiff alleged one or more of the following defects in the grinding wheel: (1) that “when used for its intended purposes, it would crack and or explode”; (2) “it was of inadequate strength and durability to withstand the constant pressures exerted in normal operation”; (3) “it was too weak, brittle and thin to withstand the pressures therein, and the pressures exerted in normal operation”; and (4) “it was placed in the stream of commerce without making proper inspection as to its quality, strength, and suitability for the purpose intended.” Defendant alleges that this instruction was erroneously given over its objection because it included allegations of a defect not supported by the evidence. Defendant relies on the instruction committee’s comment that only those allegations of plaintiff’s complaint which “are supported by the evidence” may be included within the issue instruction.

A party has the right to have the jury instructed on his or her theory of the case. (Lounsbury v. Yorro (1984), 124 Ill. App. 3d 745, 751, 464 N.E.2d 866, 870.) While questions as to what issues actually have been raised by the evidence rest with the discretion of the trial court, the court must instruct the jury on all issues reasonably presented by the evidence. Lounsbury, 124 Ill. App. 3d at 751, 464 N.E.2d at 870.

The purpose of an issue instruction is to inform the jury of plaintiff’s claims and defendant’s responses. An issue’s instruction is taken from the plaintiff’s complaint and the defendant’s answer. It is proper so long as it is succinctly stated without undue repetition or emphasis. It is error to give instructions where there is no evidence on which to base the instructions. Jeffers v. Weinger (1985), 132 Ill. App. 3d 877, 885, 477 N.E.2d 1270, 1276.

Here, we recognize plaintiff presented no direct evidence of a specific defect and that plaintiff’s complaint alleges specific defects. However, plaintiff’s testimony regarding the circumstances surrounding the explosion of the wheel allowed the jury to infer the existence of a specific defect of the types described in plaintiff’s complaint. Thus, evidence did exist to support the giving of the instruction.

For the foregoing reasons, we reverse the circuit court of Cook County’s grant of defendant’s judgment n.o.v. motion, but affirm the circuit court’s vacation of the jury’s misuse finding.

Affirmed in part; reversed in part.

CAMPBELL and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    ANNETTE BUTTITA, Plaintiff-Appellant, v. PATRICIA STENBERG, Defendant-Appellee.
    First District (1st Division)
    No. 1 — 91—3204
    Opinion filed May 3, 1993.

      Dominic R. Fichera & Associates, of Chicago (Michael G. Miller, of counsel), for appellant.
    Landau, Omahana & Kopka, Ltd., of Chicago (Robert J. Kopka and Barry A. Robin, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff Annette Buttita filed this negligence action as a result of personal injuries she sustained in a March 4, 1985, rear-end motor vehicle collision with defendant Patricia Stenberg. Following a jury trial, the jury awarded plaintiff $4,000 for the “reasonable expense of necessary medical care,” $1,000 for lost wages but $0 for the “pain and suffering experienced.”

Plaintiff subsequently moved for a new trial on the issue of damages only, contending that it was irreconcilably inconsistent for the jury to award pain-related expenses as part of the medical expense award but nothing for pain and suffering. Plaintiff appeals the circuit court’s denial of her new trial motion.

Plaintiff testified that prior to the accident, she experienced no serious medical problems such as headaches or numbness in her arms and legs. Ill health never required her to miss work during her last 15 years of full-time work. Plaintiff was active and participated in athletics. She was about 40 years old at the time of the accident.

On March 4, 1985, plaintiff was on her way to work in the morning when she stopped at a traffic light to make a left turn. While stopped, defendant rear-ended her vehicle. The impact caused the bumper of her car to be pushed under the body, produced a crease in the left rear side panel and cracked a battery post. Plaintiff’s car was towed to a service station.

Defendant would later testify that, after stopping behind plaintiff, she proceeded forward a short distance when her car “tapped” plaintiff’s vehicle in the rear. Defendant’s four-year-old daughter, seated in the front seat, was not disturbed whatsoever by the collision. Defendant was fine too. Plaintiff was crying and not unconscious. The impact did not cause plaintiff’s car to move forward.

Defendant estimated her speed at the time of impact to be one to three miles per hour, which did not even register on her speedometer. Defendant noticed no damage to either car; she later discovered a hairline crack in her car’s grill. Village of Norridge police officer Michael Liacioni would later testify that the damage to the vehicles was under $250.

Substantial amounts of time at trial were spent relative to the nature and extent of plaintiff’s injuries as a result of the accident. Plaintiff testified that, following impact, she blacked out and awoke to see the paramedics. Plaintiff told them that her neck was burning and her vision was blurry. Plaintiff was given a neck collar and placed on a backboard. She developed a pounding headache. An ambulance transported plaintiff to Resurrection Hospital.

At the emergency room, plaintiff was examined by an emergency room physician; X rays were ordered. Plaintiff had pain in her head, neck and ribs, and she was badly bruised. Plaintiff was told her sixth rib was broken. Plaintiff received a rib belt, a sling for her left arm and a prescription for pain medication. Plaintiff remained in the hospital the entire day but was not admitted. She was told to follow up with her own physician.

At home, plaintiff’s pains continued despite the taking of pain medication. Over the next few days, plaintiff felt worse, and numbness in her arms and legs developed.

On March 11, 1985, she sought the services of her physician, Dr. Raymond McDonald. Plaintiff was still wearing the rib belt and arm sling and taking her pain medication. McDonald conducted an examination and, on the belief she had a concussion, admitted plaintiff that afternoon into Westlake Community Hospital

Plaintiff stayed at Westlake for two weeks. She was fully examined by Dr. McDonald and Dr. Akkeron, an orthopedic surgeon. The examination included X rays and diagnostic tests. Plaintiff received physical therapy twice a day and traction for large portions of the day. The physical therapy consisted of hot packs, ultrasound and other forms of traction.

Plaintiff was not feeling better when she was discharged from the hospital, and she did not return to work. She was told to continue physical therapy at Westlake which she did every day for a month. The physical therapy routine was later reduced to three days a week, then two days a week. She continued to experience headaches, but the physical therapy helped them subside. Plaintiff wore the rib belt for a total of six weeks, the sling for a few months and the neck collar all the time except at night when she went to sleep.

Plaintiff continued to see Dr. McDonald on a monthly basis and Dr. Akkeron every few months. Two months following the accident, plaintiff described her symptoms as follows: she was still experiencing shooting pains down her spine, pains in the back of her head and numbness in her arms and legs.

In September 1985, Dr. McDonald recommended the services of a neurosurgeon, Dr. Belisario Arias. Plaintiff was scared about surgery and did not keep her appointment. Plaintiff’s symptoms mostly subsided, and she stopped seeing Dr. McDonald in early 1986.

In March 1988, about three years following the accident, plaintiff returned to Dr. McDonald when her pain and numbness in her arms and legs became worse; plaintiff knew she had a problem. Plaintiff received various tests and was recommended to see Dr. Arias, the neurosurgeon.

In May 1988, Dr. Arias recommended that plaintiff undergo a laminectomy, which plaintiff did in August 1988 at Westlake Hospital. Plaintiff was in an extreme amount of pain during her two-week hospital stay. She participated in physical therapy every day and wore a neck collar to prevent her head from falling to the side. Pain killers did not seem to ease the pain, which lasted for months.

After her release, plaintiff continued therapy every day at the hospital and took her pain medication. She also used a “TENS” unit, which relaxes muscles electrically, to help her with the pain. Plaintiff used this machine until 1990 and had begun using it again in July 1991, the time of trial.

Plaintiff testified that her pain was mostly gone except that she still suffered from stiffness in her neck and hip and has problems swallowing. The weather affects her condition. Plaintiff no longer participates in athletics and has never returned to work or driven an automobile.

Plaintiff also had carpal tunnel (wrist) surgery in January 1989, almost four years following the accident. Plaintiff sought compensation for this surgery as well.

Dr. Raymond McDonald testified that plaintiff came to his office in March 1985 complaining of headaches, neck pain and radiation of that pain into her arms. McDonald detected muscle spasms and diagnosed plaintiff as having a post-concussive headache with cervical radiculapathy. Cervical radiculapathy involves a shooting type of pain from the cervical area of the spine.

McDonald admitted plaintiff into Westlake Community Hospital, where she stayed for about 10 days. Plaintiff’s treatment at Westlake included the matters stated during her direct examination. Plaintiff was not feeling as well as McDonald had hoped when he released her from the hospital.

McDonald saw plaintiff in 1985 on April 1, April 8, April 22, July 17 and October 2, and October 30. Plaintiff complained of neck and back pain and arm numbness on these occasions. McDonald prescribed various treatments, including physical therapy, TENS and ultrasound. Plaintiff’s pain continued despite his various treatments.

McDonald continued to see plaintiff in early 1986. Plaintiff’s complaints were basically the same. McDonald believed they were getting “nowhere fast.” McDonald recommended that plaintiff undergo an electromyogram (EMG), which measures nerve conduction down the arms. The results were normal. A “CAT” scan also came back negative.

McDonald reviewed an X ray of plaintiff taken the day of the accident in the emergency room. It revealed some degenerative arthritic changes of the cervical spine, principally caused by aging. Osteophytes or bone spurs, which are calcium deposits on the vertebrae of the spine, were not present.

McDonald had Dr. Akkeron conduct a magnetic resonance imaging test (MRI) in May 1986. This test revealed osteophytes and diminution of the aperture openings around the nerve roots. These conditions developed over time, demonstrating plaintiff’s propensity toward degenerative disease.

McDonald believed that the surgery did plaintiff some good; however, she still experienced some pain. McDonald continued to see plaintiff until September 1988. Plaintiff told him of surgery-related pains.

McDonald described plaintiff as high strung, nervous, and fidgety, with a dependent personality. McDonald nevertheless believed that plaintiff’s complaints of pain were very real.

McDonald opined that plaintiff’s carpal tunnel surgery had nothing to do with the automobile accident. He further believed that plaintiff did not have osteophytes before the accident and that the accident aggravated the arthritic condition in her spine.

Dr. Alfred Akkeron, an orthopedic surgeon, testified that he first saw plaintiff on March 15, 1985, at Westlake Hospital. Dr. McDonald called Dr. Akkeron as a consultant.

While plaintiff was in the hospital, Akkeron conducted various tests. Akerron could make objective findings, such as restricted leg movements, but no objective neurologic basis existed to support these findings. Akkeron believed that plaintiff may have a ruptured cervical disk. Akerron ordered a CAT scan of the cervical spine and an EMG. Both of these tests are objective neurologic tests. The results were negative. Akkeron recommended that plaintiff see Dr. Arias, but plaintiff did not keep that appointment because of her fear that she may need surgery.

Akkeron next saw plaintiff on March 22, 1988. Plaintiff complained of pain in her left upper extremity, numbness and tingling in the right upper extremity and a decreased range of neck motion. Plaintiff’s symptoms were basically the same as those which Dr. Akkeron observed in 1985. Akkeron recommended that plaintiff undergo an MRI. The MRI showed plaintiff to have spondylosis, a degenerative spinal condition, with osteophytes at C4-C5 and C5-C6, which impinged on the spinal cord. Plaintiff was again referred to Dr. Arias.

Akkeron opined that the rear-end collision aggravated plaintiff’s condition and that plaintiff has a permanent problem. A significant amount of force would not be required to cause an aggravation.

Dr. Belisario Arias, a neurosurgeon, testified by way of evidence deposition that he saw plaintiff on May 12, 1988, to determine if she was a candidate for surgery. After plaintiff related her medical problems to Dr. Arias, he conducted a neurological examination. The results were “grossly normal.” However, based on plaintiff’s 1988 MRI, Arias diagnosed plaintiff as having cervical spondylosis, a disk disease that produces degeneration in the disk spaces of the spine. This condition could be caused by trauma, could develop over time and may be objectively asymptomatic in a neurologic sense. It is most usually associated with the aging process. Plaintiff also had osteophytes which impinged on her spinal chord. These develop over months or years and are associated with the condition spondylosis.

Plaintiff saw Dr. Arias again in August 1988; her condition had worsened. Arias performed objective neurological tests upon plaintiff to detect spinal problems; positive results were obtained. Arias recommended that plaintiff receive a laminectomy, which plaintiff did in August 1988. Two of plaintiff’s disk were removed during this surgery as well as her osteophytes. Arias believed plaintiff responded properly to the operation, but experienced a little more pain than most people because she was an emotional person.

Dr. Arias opined that the condition he observed in 1988 was caused by a trauma occurring near the time of the automobile accident. He admitted, however, that plaintiff’s spondylosis could have been caused by natural aging and been present before the accident.

Arias reviewed emergency room X rays of plaintiff taken March 4, 1985. Another doctor’s report of this X ray revealed that plaintiff had straightening of the cervical spine, early degenerative changes at the level of C4-C5 and C5-C6, with slight disk space narrowing and anterior and posterior osteopathic formation. Arias believed the X rays were of poor quality; he could make no diagnosis from these X rays.

Dr. Arias also reviewed cervical spine X rays taken March 13, 1985. He saw C5-C6 narrowing and straightening of the cervical spine. The presence of osteophytes could not be accurately assessed from the X rays viewed. The narrowing was possibly present before the accident.

Plaintiff received her wrist surgery in December 1988. The wrist injury “could have or might have” been related to the car accident.

Plaintiff presented a total of $30,128.77 in medical bills to the jury. These bills, however, were only published to the jury in summary fashion. Relevant to this appeal are the following figures in the summary:

Dr. Raymond McDonald....................$ 1,800.00

Diagnostic Radiology Assoc. Ltd.............$ 45.00

Westlake Community Hospital...............$18,780.90

Resurrection Hospital......................$ 299.50

Dr. Belisario Arias.........................$ 5,405.00

Plaintiff rested.

Defendant presented Dr. Hilliard Slavick, a neurologist, and Dr. Robert Hall, an orthopedic surgeon, who testified based upon their review of plaintiff’s medical records. Neither personally examined plaintiff.

Slavick testified that the X rays dated March 4, 1985, showed osteophytes at C4-C5 and C5-C6 and disk space narrowing. This condition predated the accident and took a while, at least six months, to develop. Plaintiff’s March 13, 1985, X rays revealed similar spurring and narrowing. Slavick showed the jury what he believed to be the osteophytes on the X rays. They were not attributable to the automobile accident. Slavick also reviewed plaintiff’s 1985 CAT scan. It showed spurring at C4-C5 and C5-C6; no spurring at other levels of the spine was present.

Slavick opined that plaintiff’s laminectomy in August 1988 was not related to the automobile accident. While plaintiff had subjective complaints of pain immediately following the accident, no objective neurologic basis existed to support them. Slavick further opined that the automobile accident did not aggravate plaintiff’s preexisting condition.

Slavick testified that no organic reasons existed to explain plaintiff’s constant complaints of pain. These complaints were not due to organic structural processes, but rather to psychological factors or secondary gain. Slavick relied in part on plaintiff’s 1985 EMG, which demonstrated no nerve abnormalities.

Slavick believed that plaintiff’s carpal tunnel surgery in her right wrist was not related in any way to the accident. Plaintiff’s symptoms up until her laminectomy did not reveal compression on the median nerve, and an EMG performed in December 1988 was the first objective indication of a problem with her wrist. Plaintiff’s complaints of wrist pain began about this time. If the accident caused plaintiff’s carpal tunnel syndome, she would have then sustained noticeable trauma to the wrist area. Plaintiff’s emergency room records revealed no such trauma.

The testimony of Dr. Robert Hall, an orthopedic surgeon, paralleled Slavick’s. In particular, plaintiff had spondylosis at the time of the accident, which had already produced disk space narrowing and mild osteophytes. The accident did not aggravate this condition. Plaintiff’s wrist surgery was not related to the accident. The constant and worsening pain plaintiff suffered in her neck was due to her spondylosis, not the automobile accident.

At the close of the evidence, the jury was instructed in part as follows:

“If you decide for the plaintiff on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate her for any of the following elements of damages proved by the evidence to have resulted from the negligence of the defendant taking into consideration the nature, extent and duration of the injury.
These are the elements: The aggravation of any pre-existing ailment or condition, the disability and disfigurement resulting from the injury, the pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injury, the reasonable expense of necessary medical care, treatment and services received, the value of earnings lost.
Whether any of these elements of damages has been proved by the evidence is for you to determine.”

Relying on Hinnen v. Burnett (1986), 144 Ill. App. 3d 1038, 495 N.E.2d 141, and the cases following it (see Healy v. Bearco Management, Inc. (1991), 216 Ill. App. 3d 945, 576 N.E.2d 1195, appeal denied (1991), 142 Ill. 2d 654, 584 N.E.2d 129; Rice v. Merchants National Bank (1991), 213 Ill. App. 3d 790, 572 N.E.2d 439, appeal denied (1991), 141 Ill. 2d 559, 580 N.E.2d 133; Kumorek v. Moyers (1990), 203 Ill. App. 3d 908, 561 N.E .2d 212), plaintiff asserts that the jury’s award of pain-related expenses as part of its medical expense award is irreconcilably inconsistent with the jury’s failure to award pain and suffering and demonstrates that the jury ignored a proven element of damages.

In Hinnen, plaintiff Hinnen filed an action to recover damages for personal injuries sustained when defendant’s pickup truck struck the rear of her automobile. The collision caused negligible damage to the parties’ vehicles. Defendant admitted liability, but attacked the nature and extent of plaintiff’s injuries. Like in the instant case, the evidence on these matters conflicted.

Following a jury trial, plaintiff was awarded $2,500 for all her past medical expenses, but nothing for pain and suffering. Plaintiff moved for a new trial, contending that the verdict was inadequate in that she should have received damages for lost wages, pain and suffering and disability.

On review, the appellate court initially rejected plaintiff’s argument that she should have received an award for lost wages. Reviewing the evidence, the court found “a genuine conflict as to the legitimacy of plaintiff’s claim for lost wages. Her assertion that she could not go to her job while undergoing physical therapy was completely uncorroborated.” Hinnen, 144 Ill. App. 3d at 1044.

The court next rejected plaintiff’s argument that she should have been awarded pain and suffering damages. The court was persuaded by the evidence that the collision, which occurred on a Friday, caused minor damage; that plaintiff was able to complete her errands following the accident and return to work (which required plaintiff to lift, move and operate a fork lift) for four nine-hour days the following week; that all of plaintiff’s medical treatment was based on subjective complaints; and that plaintiff had been involved in two more accidents prior to trial. In light of the conflicting evidence, “the jury had the right to conclude that the disability and pain and suffering experienced by plaintiff because of the collision with defendant were at most minimal and hence, insufficient to require or support an economic evaluation thereof.” Hinnen, 144 Ill. App. 3d at 1045-46.

Next, the court addressed whether plaintiff was entitled to a new trial because the jury awarded her pain-related expenses, but awarded nothing for pain and suffering. The court stated:

“[Ajlthough the jury awarded nothing for pain and suffering, it did compensate plaintiff for the full amount of her expenses for pain medication and physical therapy. To this extent, the verdict is irreconcilably inconsistent. If the jury believed that plaintiff had no compensable pain and suffering, its award of
pain-related expenses was wholly unwarranted and contrary to the manifest weight of the evidence. Conversely, if it believed that plaintiff’s pain and suffering were sufficiently serious to warrant expenditures for pain medication and physical therapy, its failure to award her compensation for that pain and suffering means that it disregarded a proven element of damages.
A similar inconsistency appears in Williams v. McCallister (1978), 60 Ill. App. 3d 635, 376 N.E.2d 1093, where the plaintiff in an automobile ‘whiplash’ case was awarded only the expenses for her medical treatment, which included injections for pain and physical therapy, and received nothing for pain and suffering. (See also Ford v. Baker (1978), 61 Ill. App. 3d 45, 377 N.E.2d 853; Bledsoe v. Amiel (1978), 57 Ill. App. 3d 54, 372 N.E.2d 1033; Giddings v. Wyman (1961), 32 Ill. App. 2d 220, 177 N.E.2d 641.) There, however, the question of the verdict’s inconsistency was never addressed by the court. We are aware of no case in which such an inconsistency has been directly sanctioned. To the contrary, our supreme court has recently held that where verdicts are returned in the same action which are legally inconsistent, the verdicts should be set aside and a new trial granted. Wottowa Insurance Agency, Inc. v. Bock (1984), 104 Ill. 2d 311, 316, 472 N.E.2d 411, 413.” Hinnen, 144 Ill. App. 3d at 1046.

The dissenting opinion in Hinnen disagreed with the majority’s conclusion that plaintiff was entitled to a new trial because of the existence of an irreconcilable conflict in the jury’s verdict. The dissent noted that many cases existed which “sanction an award of damages for pain medication and treatment but no award of damages for pain and suffering.” (Hinnen, 144 Ill. App. 3d at 1047 (Jones, J., dissenting).) Such cases included, among others, Williams, Ford, Bledsoe and Giddings, which the majority opinion had cited. The dissent found these cases “fully viable on the point” even though they did not discuss the jury’s verdict in terms of an “inherent inconsistency.” Hinnen, 144 Ill. App. 3d at 1047 (Jones, J., dissenting).

The dissent also believed that, in general, a reviewing court need only resort to the evidence presented at trial to better explain why a jury awarded pain-related expenses but denied pain and suffering. In support, the dissent quoted an earlier appellate court opinion:

“ ‘There are other evidentiary matters to be considered. The testimony surrounding the claimed injuries may have been impeached or it may be contradictory or unreliable. There may be evidence which carries an implication that the injuries have been exaggerated or even feigned or that the medical treatment was either unnecessary or prolonged. There may be evidence which makes doubtful the necessity of the time alleged to have been missed from work. All of these and like factors must be weighed. And if there appears to be evidence suggesting a genuine conflict as to the legitimacy of the expenses incurred, then the verdict of the jury should not be disturbed on review. The jury has the function of determining the credibility of witnesses and the weight to be given their testimony. It is usually instructed to consider all of the evidence in the light of its own experience in the affairs of life. This prerogative should not be withdrawn from the jury if there is any evidence tending to support its conclusion as to the amount of damages actually sustained. Thus this court has said that it will affirm verdicts, however low, which are sustained by evidence or the absence of particular evidence. Daly v. Vinci, 51 Ill. App. 2d 372, at 386, 201 N.E.2d 200, at 207 (1964). In Jeffrey v. Chicago Transit Authority, 37 Ill. App. 2d 327, 185 N.E.2d 384 (1962), a rear-end collision case, we affirmed a verdict of no damages where the plaintiffs’ testimony was impeached and self-contradictory and the testimony of the treating physician could have been deemed unworthy of belief.’ ” Hinnen, 144 Ill. App. 3d at 1048 (Jones, J., dissenting), quoting Haleem v. Onate (1966), 71 Ill. App. 2d 457, 461, 219 N.E.2d 94, 96.

Initially, we find plaintiff’s reliance on Hinnen and its progeny misplaced as that line of cases contains an important factual predicate not present in this case. In the Hinnen cases, the jury awarded the plaintiff all of the medical expenses incurred which, on the records there presented, included pain-related expenditures.

Here, plaintiff did not receive all her medical expenses claimed, nor can we say with sufficient certainty that the $4,000 awarded included pain-related expenses. Regarding how the jury came to the $4,000 figure, plaintiff directs this court to the following bills: $299 for Resurrection Hospital (emergency room); $45 for Diagnostic Radiology Associates Ltd. (emergency room X rays); and $3,542 for Westlake Community Hospital (March 13, 1985, through March 23, 1985). These bills total $3,886.50. Plaintiff asserts that the $4,000 figure generally represents the medical expenses which she incurred the first two weeks following the accident.

Plaintiff’s argument is unpersuasive. The summary provided to the jury relative to Westlake listed a figure of $18,780.90, not $3,542. The higher figure represented plaintiff’s total bill. Further, plaintiff’s theory does not include expenses for the treatment which she admittedly received from Drs. McDonald and Akkeron. Like the figure in the summary for Westlake, the jury saw only a total bill of $1,800 for Dr. McDonald.

It is thus clear that a factual requisite of Hinnen — that pain-related expenses be in fact awarded — is missing from this case. Here, we cannot say with sufficient certainty whether the jury’s medical expense award included pain-related expenses. The $4,000 figure could be the jury’s estimation of plaintiff’s non-pain-related medical bills. This would be consistent with the jury’s failure to award any pain and suffering. This too, however, is speculation; no one knows for sure what the jury did.

The facts of this case are not unlike those presented in Griffin v. Rogers (1988), 177 Ill. App. 3d 690, 532 N.E.2d 591. There, plaintiff sought recovery for injuries suffered in a minor automobile collision. The jury awarded plaintiff $365 as the present cash value of reasonable medical expenses but gave her nothing for pain and suffering. Plaintiff appealed, arguing that an inconsistency in the verdict existed. The court disagreed, finding that, in the face of an uncertain record, no conclusive determination could be made that the $365 figure included pain-related expenses. (Griffin, 177 Ill. App. 3d at 694-95.) Like Griffin, we can make no “conclusive determination” that the jury’s $4,000 award included compensation for plaintiff’s pain-related medical expenses.

Although we could affirm the circuit court denial of plaintiff’s new trial motion based on the foregoing, we believe it necessary to question the soundness of Hinnen to the extent it holds that a jury verdict must be set aside as irreconcilably inconsistent when, on the one hand, pain-related expenses are included within a medical expense award, but monies for pain and suffering are denied on the other. In particular, we take issue with the following passage:

“If the jury believed that plaintiff had no compensable pain and suffering, its award of pain-related expenses was wholly unwarranted and contrary to the manifest weight of the evidence. Conversely, if it believed that plaintiff’s pain and suffering were sufficiently serious to warrant expenditures for pain medication and physical therapy, its failure to award her compensation for that pain and suffering means that it disregarded a proven element of damages.” Hinnen, 144 Ill. App. 3d at 1046.

We believe the dissent in Hinnen properly took issue with the above passage. The dissent’s treatment of the issue is more consistent with long held standards of appellate review relative to damage awards. These standards have been generally stated as follows:

“The issue of damages is particularly within the discretion of the jury and courts are reluctant to interfere with the jury’s exercise of its discretion. [Citation.] A reviewing court may order a new trial if the damages are manifestly inadequate, if it is clear that proved elements of damages have been ignored or if the amount awarded bears no reasonable relationship to the loss suffered by the plaintiff. [Citation.] To determine whether a jury verdict on the amount of damages is inadequate for any of the foregoing reasons, we must consider the record as a whole.” (Chrysler v. Darnell (1992), 238 Ill. App. 3d 673, 678-79.)

Another court has stated on the issue: “Absent some indication that the jury failed to follow some rule of law, considered some erroneous evidence, or an indication in the record that the verdict was the obvious result of passion or prejudice, we cannot upset that verdict.” Perry v. Storzbach (1990), 206 Ill. App. 3d 1065, 1069, 565 N.E.2d 211.

We believe that the Hinnen majority departed from these well-settled principles of review. Where the pain and suffering element of plaintiff’s evidence is weak or contested, as is often the case in a rear-end automobile accident case, the jury may merely reject plaintiff’s pain and suffering evidence as unpersuasive or decide that a separate pain and suffering award is unjustified. Simultaneously, the jury may decide to compensate the plaintiff for her out-of-pocket medical expenses, including pain-related expenses. In the proper case, there is no inherent inconsistency in such an award. We agree with the Hinnen dissent that, where such an award finds justification in the evidence presented and does not violate one of the well-settled principles of review, it should be upheld on review. In short, damages are the jury’s prerogative, not the appellate court’s.

This case proves the rule. Even if we were to assume that the jury in this case awarded pain-related expenses as part of its medical expense award, the verdict should be affirmed.

At the close of the evidence, plaintiff’s counsel requested over $500,000 in damages. This was a minor whiplash case, and the jury’s verdict recognized it as such.

The evidence supports the jury’s verdict. During trial, the jury heard plaintiff testify that she never drove a car again following the accident and never returned to work. However, no medical evidence supports plaintiff’s conduct.

Dr. McDonald, plaintiff’s treating physician, described plaintiff as high strung, nervous, and fidgety with a dependent personality. Dr. Arias, plaintiff’s neurosurgeon, testified that plaintiff was an emotional person who experienced more pain than would an ordinary patient. Defendant’s experts also opined that plaintiff’s pain was attributable to secondary factors.

We could detail the evidence further, but this would have limited value. While Hinnen would have this court set aside the verdict based on an inherent inconsistency, our review of the evidence leads us to conclude that the jury’s verdict is quite accurate.

For the foregoing reasons, we affirm the order of the circuit court denying plaintiff’s motion for a new trial. The judgment entered on the jury’s verdict is also affirmed.

Affirmed.

CAMPBELL and BUCKLEY, JJ., concur.


author: JUSTICE COUSINS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERNEST WILLIAMS, Defendant-Appellant.
    First District (5th Division)
    No. 1 — 90—1532
    Opinion filed April 30, 1993.

      Rita A. Fry, Public Defender, of Chicago (Vicki Rogers, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Judy DeAngelis, and Kurt Smitko, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE COUSINS

delivered the opinion of the court:

Defendant, Ernest Williams (defendant), appeals the conviction of murder and 22-year imprisonment sentence rendered against him following a bench trial.

The issues presented for review are: (1) whether defendant was deprived of effective assistance of counsel pursuant to Federal and State constitutional guarantees, (a) whether defense counsel’s cross-examination of a witness constituted ineffective assistance of counsel, and (b) whether a conflict of interest existed because defense counsel represented defendant and codefendant; (2) whether the trial court misapplied the weight given to defense witnesses called to demonstrate decedent’s propensity for violence; (3) whether the trial court erred in finding that defendant was the aggressor; and (4) whether defendant was proven guilty of first degree murder beyond a reasonable doubt.

Affirmed.

Backgkound

On the night of March 5, 1988, police officers found Aaron Mack’s (decedent’s) body. He had been shot to death.

Prosecution witness Marvin Harris (Harris) testified that earlier that evening, he had received a telephone call from Andre Williams (codefendant), defendant’s brother, who informed him that Harris’ ex-girl friend was at the Williams home. Harris went to Williams’ home, exchanged words with his ex-girl friend, tussled with her and, consequently, was asked to leave the premises. Harris obliged.

Harris thereafter went to a pool hall. Codefendant and defendant arrived approximately 15 minutes later. Codefendant approached Harris and asked him if he called his ex-girl friend a name. Harris answered in the negative. Thereafter, a fist fight ensued between codefendant and Harris. Defendant and others from Harris’ group started fighting also.

After this brief altercation, Harris’ group went to a fast-food chicken restaurant. Defendant and codefendant went home. According to defendant, he did not enter his home. Five to ten minutes later, defendant and codefendant returned to the chicken restaurant.

Harris’ group stepped outside of the chicken restaurant and started arguing with defendant and codefendant. Harris’ group was armed with bottles. Codefendant pulled out a gun and gave it to defendant.

Harris testified that defendant told Carey Taylor (Taylor), a member of Harris’ group, that he was going to kill him. Defendant drew a pistol and started shooting. Defendant shot at Taylor three times. Defendant and codefendant left after Taylor informed the group that defendant was shooting blanks.

Harris’ group followed defendant and codefendant up to a point and then retreated to the chicken restaurant. Approximately five minutes later, defendant, codefendant, and a young man named Troy Dortch (Dortch) returned to the exterior of the chicken restaurant. Armed with sticks, Harris’ group left the restaurant. Dortch threw a punch at Taylor. At this point, Harris flagged down decedent as he was driving by in a car. Decedent stopped his car. Taylor then removed a carjack from decedent’s trunk and threw it at codefendant.

Defendant, codefendant, and Dortch started walking away. Harris’ group, which included decedent, started following them on the opposite side of the street. Each group was shouting at the other.

Decedent entered the street indicating that he would go “head up” with any member of defendant’s group. To “head up” is a eolioquialism which means to fight. Decedent started walking in the street; defendant started walking in the street.

Decedent began to remove his coat while defendant drew his gun and fired a shot into the air. Decedent started walking toward defendant, and defendant fired three more shots at or near decedent. Decedent continued to walk toward defendant and grabbed defendant. Co-defendant grabbed decedent, and defendant hit decedent across the face with the gun. Decedent fell to the ground and died. Some members of Harris’ group stayed with decedent’s body until the police arrived.

Defense witness Sidney Brown testified that decedent’s hands were inside his coat as he approached defendant and that someone told the decedent that defendant’s gun contained blanks.

Defendant testified that when decedent asked to fight, defendant asked him why he should fight him because he did not know him. According to defendant, decedent started running toward him with something in his hands. That something later turned out to be a soup ladle wrapped in black tape. Defendant testified that he was afraid and fired one shot into the air, then fired a shot to the left of decedent. Defendant testified that he was not aiming at decedent but decedent kept running towards him. Defendant fired the third shot to the right of decedent, but decedent kept running toward defendant. After the fourth shot, decedent grabbed defendant, pulled defendant’s jacket over his head, and started wrestling with defendant.

Midway into defendant’s trial, the court heard codefendant’s bench trial. Codefendant was charged with unlawful use of a weapon in connection with the murder of decedent. The trial court noted that although defendant’s and codefendant’s cases were distinct, some of the evidence applied to both cases. The trial court stated that each defendant would be tried on evidence admissible to each party and that any evidence which would not be admissible as to a defendant would not be used against him.

The People called a detective from the Chicago police department to testify. The detective testified that Codefendant informed him of the gun’s location. The detective found the gun at the specified location and later identified it in court.

On cross-examination, defense counsel asked the detective whether codefendant had told him that he or defendant ever reloaded the gun at any time. The detective replied in the negative to both questions.

On redirect, the detective testified that codefendant told him that defendant asked decedent to step into the street and defendant fired his .gun at decedent several times. The detective stated that codefendant told him that decedent grabbed defendant and decedent was hit over the head with the gun.

The court found codefendant to have been in possession of a weapon on March 5, 1988, and that he had been previously convicted of a felony. The court found codefendant guilty of unlawful use of a weapon.

Defendant’s trial resumed with a series of stipulations that, if the forensic pathologist were called to testify, he would state that he performed an autopsy on decedent and found a single shot wound to the chest with an exit through his back. There was injury to the heart, right lung, and liver. The forensic pathologist deemed the manner of death to be a homicide.

Other witnesses testified, then the People rested. Defendant filed a motion for directed verdict which was denied. Defendant then proceeded on a self-defense theory. Defendant presented testimony of two people who, as they were driving by a high school, observed a fight between two girls. One girl was knocked to the ground and a number of males began hitting and kicking the girl who had fallen. As the witnesses identified decedent as being one of the culprits, defense counsel called them to demonstrate decedent’s propensity for violence.

Both witnesses testified that they based their identifications on the type of clothing that decedent was wearing and his profile as he was running away. A police officer testified that the two witnesses positively identified decedent as being one of the culprits.

The People filed a motion in limine to strike the testimony of the two defense witnesses and the police officer’s testimony regarding decedent’s propensity for violence. The motion was denied.

However, relative to the testimony of the two defense witnesses, the court stated:

“The testimony from those two witnesses would certainly never meet the standard of proof beyond a reasonable doubt. It was not even clear and convincing evidence.
The two people who testified who were eye-witnesses to the event that later they made an identification of Aaron Mack were so weak that it is clear that I cannot find in anyway that it was Aaron Mack who, in the past, had used the aggression against a young women [sic] because the evidence is just not there.”

The court found defendant guilty of murder, denied defendant’s motion for a new trial, and sentenced him to a 22-year-imprisonment term in the Illinois Department of Corrections.

Opinion

I

Defendant first contends that he was deprived of effective assistance of counsel pursuant to Federal and State constitutional guarantees. We disagree.

A

Specifically, defendant contends that defense counsel’s cross-examination of a witness constituted ineffective assistance of counsel.

The benchmark for judging claims of ineffectiveness of counsel is whether counsel’s conduct “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington (1984), 466 U.S. 668, 686, 80 L. Ed. 2d 674, 692-93, 104 S. Ct. 2052, 2064.

In assessing the effectiveness of counsel, Illinois courts have adopted the guidelines set out by the United States Supreme Court in Strickland. To establish ineffective assistance of counsel, a petitioner must show that (1) his counsel’s performance was deficient and fell below an objective standard of reasonableness, and (2) counsel’s erroneous conduct was prejudicial to the defense. (Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064; People v. Collins (1985), 106 Ill. 2d 237, 273, 478 N.E.2d 267.) However, a court is not required to determine whether counsel’s performance was deficient before examining whether the petitioner was prejudiced by the alleged deficiencies. (Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069; People v. Albanese (1984), 104 Ill. 2d 504, 527, 473 N.E.2d 1246.) A petitioner must show actual prejudice, and unless there is a reasonable possibility that but for counsel’s errors the result would have been different, a new trial will not be granted. People v. Enoch (1988), 122 Ill. 2d 176, 202, 522 N.E.2d 1124.

When evaluating ineffective assistance of counsel claims, there is a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. (Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.) A claim of ineffective assistance of counsel cannot be based on mere conjecture. (People v. Gierbolini (1984), 128 Ill. App. 3d 794, 797, 471 N.E.2d 625.) Effective assistance of counsel refers to competent, not perfect, representation. People v. Balfour (1986), 148 Ill. App. 3d 215, 227-28, 498 N.E.2d 547.

Also, it has been established that an attorney’s decision on whether to file a motion to suppress is a matter of trial strategy which is to be given great deference. (People v. Bryant (1989), 128 Ill. 2d 448, 458, 539 N.E.2d 1221.) Since it is a matter of trial strategy, it has no bearing on the issue of competency of counsel. (People v. Davidson (1990), 196 Ill. App. 3d 634, 638, 554 N.E.2d 444.) Defendant must establish that his counsel’s actions in not filing the motion so prejudiced him that, but for this conduct, the outcome would have been different. (People v. Johnson (1986), 143 Ill. App. 3d 34, 43, 492 N.E.2d 574; People v. Atkins (1987), 161 Ill. App. 3d 600, 608, 515 N.E.2d 272.) Here, defendant cannot demonstrate that he was prejudiced by his counsel’s failure to file a motion to suppress.

Defendant contends that defense counsel was ineffective for failing to file a motion to suppress statements made by codefendant to a detective (Detective Schalk). Codefendant’s statements were elicited through Detective Schalk, who stated that codefendant informed him that defendant requested decedent to step into the street to fight.

The People maintain that the filing of a motion to suppress is a matter of trial strategy and has no bearing on the effectiveness of trial counsel. We agree. The statements that codefendant made were harmless where the trial court did not consider them in its finding and in light of the overwhelming evidence presented at trial which supports defendant’s conviction for murder.

Codefendant’s statement was elicited through testimony of the detective, who stated that codefendant informed him that defendant requested the decedent to step into the street to fight. This statement is contrary to testimony given by three eyewitnesses.

Further, defendant’s contention that defense counsel was ineffective by failing to file a motion to suppress this statement of codefendant is without merit. Defense counsel made the trial court aware of the statement and requested that it not be considered against defendant to which the court agreed. Defense counsel took the necessary steps short of filing a formal motion to suppress to ensure that defendant was not prejudiced by the statement.

Additionally, defendant’s contention that codefendant’s statement was in violation of the confrontation clause is without merit. The confrontation clause of the sixth amendment guarantees the right of a criminal defendant to be confronted with the witnesses against him, essential to which is the right to test the truth of their assertions through cross-examination at trial. (Pointer v. Texas (1965), 380 U.S. 400, 404, 13 L. Ed. 2d 923, 926, 85 S. Ct. 1065, 1068; see also People v. Carpenter (1963), 28 Ill. 2d 116, 121, 190 N.E.2d 738 (defendant must be afforded his right to confront party whose assertions are offered to prove the truth of the matter asserted).) Here, codefendant’s statement was not a “witness against defendant” because the statement was not elicited for its truth, but elicited simply to demonstrate the course of the police investigation. (People v. Trice (1991), 217 Ill. App. 3d 967, 976-77, 577 N.E.2d 1195.) Therefore, defendant’s right to confront adverse witnesses was not violated where there was no adverse witness to confront.

Moreover, it has been held that a trial judge is presumed to know the law and only consider competent and admissible evidence. (People v. Gilbert (1977), 68 Ill. 2d 252, 258, 369 N.E.2d 849.) This presumption may only be rebutted where the record affirmatively establishes that the trial judge in fact considered inadmissible evidence. (Gilbert, 68 Ill. 2d at 259.) And where a trial court explicitly states in a joint trial that it will not consider inadmissible evidence, and the record supports the judge’s admonition, a defendant cannot claim that he has been denied a fair trial. People v. Monroe (1984), 125 Ill. App. 3d 592, 595, 466 N.E.2d 393.

In Monroe, four defendants were jointly tried for rape. Each made statements implicating the other. The trial judge admitted the statements. However, he explicitly stated that he would not consider what one said against the other. (Monroe, 125 Ill. App. 3d at 595.) On appeal, the defendants claimed they were prejudiced by the reading of the unexcised statement. The appellate court rejected the defendants’ claims, noting that the trial court said it would not consider evidence which would violate the Bruton (Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620) rule. (Monroe, 125 Ill. App. 3d at 595.) The Monroe court recognized that defendants failed to overcome the heavy presumption that the trial court only considered competent evidence.

Also apposite is People v. Davis (1983), 97 Ill. 2d 1, 452 N.E.2d 525. In Davis, the defendant was tried together with his codefendant, Holman. Defendant was tried by the court and Holman by a jury. At trial, Holman’s confession, which implicated the defendant, was admitted into evidence. However, the trial judge explicitly stated that he would not consider that portion of the confession which implicated the defendant. Defendant was convicted, and on appeal argued that, based on Bruton, he was denied a fair trial. The Illinois Supreme Court rejected the defendant’s claim and held that there was no reversible error since the trial judge, sitting as the trier of fact, clearly stated that he would not consider the portion of the statement which implicated the defendant as evidence against the defendant. (Davis, 97 Ill. 2d at 22.) Thus, Davis held that the defendant received a fair trial since the trial court declared it would not consider incompetent evidence and nothing in the record reflected otherwise.

In People v. Moore (1984), 128 Ill. App. 3d 505, 470 N.E.2d 1284, the defendant and codefendant were tried jointly before a judge and convicted of armed violence, voluntary manslaughter, and concealment of a homicidal death. On appeal, the defendant claimed he was denied a fair trial because the trial court denied his severance motion. The Moore court rejected the defendant’s argument and noted that the trial judge, sitting as the trier of fact, “due to his particular training and experience, is generally believed to have a greater ability to restrict his use of improper evidence and to consider only competent evidence.” (Moore, 128 Ill. App. 3d at 514.) The court noted that the learned trial judge admonished defendants that any statement made by a codefendant admitted into evidence would only be considered against the declarant. Thus, the court held that the defendant received a fair trial.

We find that the case at bar closely parallels People v. Schmitt (1989), 131 Ill. 2d 128, 545 N.E.2d 665, where the defendant and co-defendant were tried in simultaneous but separate bench trials. There was an agreement prior to trial that evidence admissible only as to defendant Schmitt would not be considered against codefendant Nielson. On appeal, the defendant argued that the trial court had considered the codefendant’s statement in determining his guilt. The Illinois Supreme Court, in reversing the appellate court, held that “there is nothing in the record to indicate the court in this case relied upon post-arrest statements of Schmitt, oral or written, wherein he named Nielson as his drug source. To the contrary, the court repeatedly assured Nielson that it would not consider such statements against him.” Schmitt, 131 Ill. 2d at 138.

In the case at bar, the record establishes that the trial court considered only competent evidence. At the outset of codefendant’s trial, defense counsel asked the court not to consider the statements of codefendant against defendant. The trial judge agreed, stating that “any evidence that would not be admissible to one of the defendants would not be used against him.” The trial judge, in her finding, never indicated that she used codefendant’s statement in reaching her decision. In fact, the trial court stated that “[t]he Harris group said let’s go head to head.” The trial court also stated that decedent went into the street and began to move toward the defendants and their group so that they could fight. This is contrary to what codefendant’s statement had suggested.

Further, the Illinois Supreme Court, in Schmitt, rejected the appellate court’s application of the Bruton analysis to bench trials:

“Unlike the court in Bruton, we are not concerned here with the efficacy of jury instructions in eliminating the prejudice to a defendant that arises from the use at a joint trial of a non-testifying codefendant’s inculpatory statement ***.” (Schmitt, 131 Ill. 2d at 138.)

Clearly, defendant’s reliance on Bruton as being applicable to bench trials is misguided since it is clear that in Illinois, the Bruton analysis is inapplicable where the trier of fact is a judge.

Defendant’s reliance on Lee v. Illinois (1986), 476 U.S. 530, 90 L. Ed. 2d 514, 106 S. Ct. 2056, is also misguided. In Lee, the court held that the trial court’s reliance on a codefendant’s uncross-examined confession denied defendant a fair trial. The court reversed the defendant’s conviction because the trial judge erroneously relied on the codefendant’s confession. However, in Lee, the court based its decision on the fact that the trial court expressly relied on portions of the codefendant’s confession in finding the defendant guilty. Thus, it was clear from the record and undisputed that the trial court had indeed considered the codefendant’s confession as substantive evidence.

Here, there is nothing in the record that indicates that the trial court considered incompetent evidence. The record plainly establishes that the trial court separated the evidence and considered competent evidence as to each defendant.

The two questions asked of the detective on cross-examination were a matter of trial strategy and as such are inappropriate for review.

It has been established that any allegations of incompetency of counsel in regards to cross-examination are questions of trial strategy, the exercise of professional judgment, and matters within trial counsel’s discretion and, as such, are not subject to review by a reviewing court. (People v. Harris (1988), 123 Ill. 2d 113, 157, 526 N.E.2d 335.) Trial counsel is entitled to great deference by a reviewing court in any evaluation of his conduct. (People v. Mitchell (1984), 105 Ill. 2d 1, 12, 472 N.E.2d 1270.) Review of trial tactics or strategy will generally not extend to these areas “even where appellate counsel or the reviewing court might have handled the matter differently.” (People v. Barfield (1989), 187 Ill. App. 3d 190, 197, 543 N.E.2d 812.) “[T]he fact that a tactic in retrospect proved unsuccessful does not demonstrate incompetence.” (Barfield, 187 Ill. App. 3d at 197.) The two questions asked of the detective were relevant and could be considered matters of trial strategy.

B

Defendant contends that a conflict of interest was demonstrated by defense counsel’s joint representation of defendant and codefendant and, therefore, defendant was denied effective assistance of counsel. We disagree.

Joint representation of codefendants is not a per se violation of the sixth and fourteenth amendment right to effective assistance of counsel. (People v. Vriner (1978), 74 Ill. 2d 329, 337, 385 N.E.2d 671.) The United States Supreme Court has established that in order to maintain a claim of ineffective assistance of counsel based on joint representation, the defendant must establish the existence of an actual conflict which has adversely affected his lawyer’s performance. (Cuyler v. Sullivan (1980), 446 U.S. 335, 348, 64 L. Ed. 2d 333, 346-47, 100 S. Ct. 1708, 1718.) This standard has been adopted by the Illinois Supreme Court where the burden is placed on the defendant to show with some specificity that an actual conflict of interest adversely affected his representation. (People v. Jones (1988), 121 Ill. 2d 21, 29, 520 N.E.2d 325; People v. Washington (1984), 101 Ill. 2d 104, 112, 461 N.E.2d 393.) “Hypothetical or speculative conflicts will not suffice to establish a violation.” (Jones, 121 Ill. 2d at 29.)

“Where the record presents no indication that the defense of either codefendant was inhibited to any degree because of the joint representation, a reversal of a conviction is not required.” (Jones, 121 Ill. 2d at 30.)

Defendant has failed to demonstrate how defense counsel had a conflict of interest because of joint representation.

Defendant has not established that he was prejudiced by any alleged deficiencies in his counsel’s representation. Codefendant’s statement could not have prejudiced defendant because it was not offered for the truth of the matter asserted; the trial court expressly stated that it would not consider any evidence that was inadmissible against defendant during codefendant’s bench trial; the trial court never considered codefendant’s statement in its findings; and finally, the joint representation of defendant and codefendant did not present a conflict of interest.

Therefore, defendant has failed to satisfy the two-prong Strickland test for ineffective assistance of counsel. Thus, defendant received effective assistance of counsel.

II

Defendant next contends that the trial court misapplied the weight given to defense witnesses called to demonstrate decedent’s propensity for violence. We disagree.

When a defendant presents a defense such as self-defense, he may rely on the victim’s propensity for violence. (People v. Lynch (1984), 104 Ill. 2d 194, 199-200, 470 N.E.2d 1018.) However, one can only consider facts one knows, and evidence of the victim’s character is irrelevant to the self-defense theory unless defendant knew of the victim’s violent nature. (Lynch, 104 Ill. 2d at 200.) Once this evidence is presented, it is presumed that the trial court will only consider competent evidence in reaching its decision. (People v. Coleman (1991), 212 Ill. App. 3d 997, 1006, 571 N.E.2d 1035.) The judge will then weigh the evidence and draw reasonable conclusions therefrom. (People v. Doss (1991), 214 Ill. App. 3d 1051, 1055, 574 N.E.2d 806.) It is well settled that

“[i]n a bench trial, it is for the trial judge to determine the credibility of witnesses, to weigh the evidence, draw reasonable inferences therefrom, and to resolve conflicts in that evidence.” People v. Ocasio (1990), 205 Ill. App. 3d 157, 162-63, 562 N.E.2d 549.

Determinations as to weight and credibility given to a witness in a bench trial are an exclusive function of the trial court and a court of review will not disturb these determinations unless manifestly erroneous. (People v. Gentile (1990), 205 Ill. App. 3d 952, 958, 563 N.E.2d 926.) Here, the determination by the trial court that the lineup identification was not reliable was not manifestly erroneous as evidenced by the facts in this case.

The court did not find this identification to be conclusive and with good cause. One witness testified that he observed approximately 12 to 15 young men kicking a girl. The other witness testified that he saw four to five young men hitting the girl. Both witnesses filed a police report and each viewed.a lineup. Both witnesses identified decedent from the lineup. However, the witnesses testified that their identifications were based on the clothing that decedent was wearing and not his face. The witnesses also testified that they were only able to observe decedent from the side and back.

Further, defendant testified that he did not know decedent.

III

Defendant further contends that the trial court erred in concluding that he was the aggressor. We disagree.

In a bench trial, it is presumed that the trial judge has considered only competent evidence in reaching his or her decision. (Coleman, 212 Ill. App. 3d at 1006.) The judge will then weigh the evidence and draw a reasonable conclusion therefrom. (Doss, 214 Ill. App. 3d at 1055.) There must be an affirmative showing on the record that the court actually used improper evidence to rebut the presumption that the trial court considered only competent evidence. (People v. Gunartt (1991), 218 Ill. App. 3d 752, 760, 578 N.E.2d 1081.) Here, the court considered only competent evidence in reaching its conclusion and defendant has failed to rebut this presumption. Therefore, no error was present.

It is well accepted that in order to establish a claim of self-defense, a defendant must prove that

“unlawful force was used against him, he was not the aggressor, he believed that the danger of harm was imminent, force was necessary to avert the danger, and the amount of force used was necessary.” People v. Sanchez (1990), 206 Ill. App. 3d 90, 108, 563 N.E.2d 1127.

Where the defendant uses deadly force he must believe that the threatened force will cause him death or great bodily harm, or that the force threatened is a forcible felony. (People v. Daniel (1989), 191 Ill. App. 3d 837, 842, 548 N.E.2d 354.) When the evidence negates any element of self-defense beyond a reasonable doubt, the People have carried their burden. (People v. Martinez (1990), 206 Ill. App. 3d 813, 827, 564 N.E.2d 1271.) Defendant fired an excessive number of shots even if he feared his life. Moreover, decedent did not have a gun. Based on the evidence presented, defendant cannot claim that he acted in self-defense as it is clear that he was the aggressor.

IV

Defendant finally contends that he was not proven guilty of first degree murder beyond a reasonable doubt. We disagree.

When an issue involving reasonable doubt is presented, a reviewing court’s function is not to retry the defendant. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267.) Instead, the relevant inquiry is

“whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.

People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 453.

Once a defendant has raised an affirmative defense such as self- - defense, the burden then shifts to the People to prove the elements of the offense charged and to prove, beyond a reasonable doubt, that the defendant did not act in self-defense. People v. Carter (1985), 135 Ill. App. 3d 403, 409, 481 N.E.2d 1012.

When the trial court has ascertained that the People have negated beyond a reasonable doubt any one of the elements justifying the use of force, then the People have carried their burden of proof. People v. Greene (1987), 160 Ill. App. 3d 1089, 1096, 513 N.E.2d 1092.

The thrust of defendant’s argument is that he was justified in using self-defense and he should have been acquitted. The issue of when self-defense is justified requiring acquittal, and when it is unjustified requiring a finding of voluntary manslaughter, was addressed in People v. O’Neal (1984), 104 Ill. 2d 399, 472 N.E.2d 441. In O’Neal, the court stated that

“[ijf the defendant’s belief as to the use of force was unreasonable, the crime should be reduced from murder to manslaughter. If the defendant’s belief was reasonable, however, he should be exonerated.” O’Neal, 104 Ill. 2d at 405.

A reasonable belief of force is when a defendant

“proves he was not the aggressor, but was confronted with unlawful force, that he reasonably believed the danger of harm was imminent and that the force he used was necessary to defend against that danger.” People v. Colson (1989), 187 Ill. App. 3d 423, 435, 543 N.E.2d 282.

When a defendant uses deadly force, it is justified only when the person reasonably believes that such force is necessary to prevent imminent death or severe bodily harm. Furthermore, the person threatened must not be the aggressor. People v. Berry (1988), 175 Ill. App. 3d 420, 426, 529 N.E.2d 1001.

The facts in the instant case clearly demonstrate that defendant was the aggressor, thereby precluding him from alleging that he was justified in his actions. On three separate occasions, defendant confronted decedent’s group of friends and instigated a fight. The first instance occurred when defendant fought with Marvin Harris’ friends outside of a pool hall. Harris and his group retreated into a restaurant while defendant and his brother went home only to return a few minutes later. Defendant then had an altercation with Carey Taylor and shot at him.

The groups separated again and defendant returned a third time. Decedent was present at this time and issued a challenge to fight any member of defendant’s group. Defendant accepted the challenge, entered the street, and fired four shots at or near decedent with the last shot penetrating decedent’s chest and exiting his back.

In light of the record, we hold that the trial court was correct in determining that defendant’s actions (repeatedly confronting the decedent’s group and arming himself with a weapon) made him the aggressor and, as such, he was not justified in his actions. Thus, the trial court made a finding of fact as to defendant’s unjustified use of force, and when viewed in the light most favorable to the prosecution, the evidence reinforces the court’s decision and should not be overturned. Defendant’s conviction and sentence for murder must stand.

Pursuant to People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, and relevant statutory provisions, we grant the People of the State of Illinois costs and incorporate as part of their judgment a fee of $50 for defending this appeal. In addition, pursuant to People v. Agnew (1985), 105 Ill. 2d 275, 473 N.E.2d 1319, we grant the People an additional fee of $25 for oral argument.

Judgment affirmed,

GORDON, P.J., and McNULTY, J., concur.