author: JUSTICE EGAN

text:
    EDWARD GOLIN, Plaintiff-Appellee, v. JOHN RUKAVINA, Defendant-Appellant.
    First District (6th Division)
    No. 1-89-1361
    Opinion filed February 1, 1991.
    Rehearing denied March 14, 1991.

      William E. Reynolds, of Chicago (Timothy Quinn, of counsel), for appellant.
    Lisco & Field, of Chicago (Robert F. Lisco and Jill Kline, of counsel), for appellee.
   JUSTICE EGAN

delivered the opinion of the court:

The plaintiff, Edward Golin (Golin), was working on a building on Michigan Avenue in Chicago on October 10, 1982, when an altercation occurred between him and the defendant, John Rukavina (Rukavina), who was at the building site pursuant to his duties as a building inspector for the City of Chicago; he was also a part-time deputy sheriff for Cook County and was armed with a gun. The gun was discharged, and Golin was shot in the arm. Golin sued Rukavina, the City of Chicago and the County of Cook.

The complaint upon which trial began contained three counts: count I sought compensatory damages from Rukavina and the City of Chicago for negligence; count II sought compensatory damages from Rukavina and the County of Cook for negligence; and count III sought punitive damages from Rukavina only for willful and wanton conduct. At the close of the plaintiffs case, the judge directed a verdict in favor of Cook County on count II.

Rukavina moved for a directed verdict on count III, arguing that the evidence was insufficient to establish willful and wanton conduct on his part. The judge agreed that the evidence was insufficient and orally ruled that the verdict would be directed in Rukavina’s favor on count III. The City then moved for a directed verdict on the ground that the evidence was insufficient to establish willful and wanton conduct as required under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1985, ch. 85, par. 1 — 101 et seq.). The judge noted that he had previously said that “there isn’t enough evidence to support any contention that [the conduct is] willful and wanton.” He added, however, that he was “rethinking” and that he would take the matter under advisement.-He later changed his ruling and, over objection, permitted the plaintiff to file an amendment to counts I and III. Both counts, as amended, alleged willful and wanton conduct on the part of Rukavina. Count I sought compensatory damages from Rukavina and the City of Chicago; count III sought punitive damages from Rukavina only.

A jury returned a verdict in favor of Golin and against Rukavina and awarded $150,000 in compensatory damages and $20,000 in punitive damages. The jury returned no verdict as to the City of Chicago.

Rukavina filed a post-trial motion for judgment n.o.v. or for a new trial. The judge granted Rukavina’s motion for judgment n.o.v. as to count I only and denied his post-trial motion as to count III. Rukavina appeals from the order denying his post-trial motion as to count III, and Golin cross-appeals from the order granting judgment n.o.v. in favor of Rukavina on count I. Golin does not appeal the judgment in favor of the City of Chicago.

The threshold issue is whether the evidence establishes that Rukavina’s conduct was willful and wanton, as required by the Tort Immunity Act. (Ill. Rev. Stat. 1985, ch. 85, par. 2 — 202.) Not uncommonly, the witnesses’ versions differ. Consequently, a comparatively detailed recitation of the evidence is required.

On October 10, 1982, Golin was an elevator foreman working for Riverside Corporation on the construction of the One Magnificent Mile building in Chicago. The building was to be 60 stories high, and at the time of the occurrence about 38 or 40 stories of the building exterior had been completed. There were two temporary elevators on the building. The personnel elevator, which was used to haul the workmen up to the top, was located on the southwest corner of the building. The material hoist was located on the northwest comer. John Guzman was part of Golin’s crew, which was working on the personnel elevator. Rich Harold was in charge on the top side of the elevator, and Golin was in charge on the lower end of the elevator. Owen Doherty was an ironworker also employed by Riverside; he was part of the crew that erected the elevator, and Golin was Doherty’s immediate boss. There were two cranes on the building. Around 10 a.m., a hook fell off one of the cranes at the northeast corner of the building and hit the back of ,a CTA bus. Neither Golin nor any of his crew had anything to do with the hook accident.

Golin and Guzman testified that they went to lunch at a bar around 11:45 or 12 and returned to work before 1 p.m. Golin said that it was possible that he had three or four beers at lunch, but it was more likely that he had two or three beers. He was not drunk, and he had no trouble walking back to the jobsite, which was about 2xlz blocks away. The following represents a summary of his testimony.

Around 3:45 p.m., Golin was working on the elevator cables in the “pit,” about eight feet below ground. He and Guzman were preparing to get the elevator car into operation, while Doherty was outside the pit, going back and forth to his truck putting away tools. Five workers were on the 40th floor. Golin said that the elevator could have been running for emergency use within 20 minutes. He looked up and saw a man, later identified as Peter Vrdolyak, looking down into the pit. He did not know Vrdolyak, nor did he know that Vrdolyak was a city building inspector; Vrdolyak did not identify himself. He asked Vrdolyak if he could help him; Vrdolyak answered that he would let him know if he could help him, and walked away. Vrdolyak returned and demanded a ride up to the 38th floor. Golin told him that no one could go up for about 20 minutes. Golin came up from the pit and saw Rukavina standing with Vrdolyak. He did not recognize Rukavina, and Rukavina did not identify himself.

Vrdolyak followed Golin into the machine room on the first floor, and Golin told Harold by radio that Vrdolyak said that he was an inspector who said they would all go to jail if Golin touched the elevator button. Golin then operated the elevator and lowered the men who were in the elevator about five feet; Vrdolyak told him that he was going to jail. Vrdolyak then left with Rukavina. Golin came out of the machine room and was talking to the elevator operator when he was approached by Rukavina. Rukavina began using vulgar language in a very loud voice and then pushed Golin against some gates which were stacked against the wall. He never attempted to hit Rukavina before Rukavina pushed him.

After he was pushed into the gates, he got up and went to grab Rukavina. Rukavina threw two good punches at him, then Golin grabbed Rukavina by the shoulder and arm and got him in a wrestling hold. At least one of Rukavina's punches was to Golin’s face. Golin then yelled to Guzman to get Rukavina off him. Guzman came out of the pit and tried to pull Rukavina off Golin, and then the gun went off.

Golin did know at first that what he heard had been a gun shot. The flash from the gun was right next to his eyes. His face was maybe three or four feet up off the ground. He never saw a weapon pulled or aimed. Rukavina was trying to hit him at the time. Golin was in a crouched position. When he looked up there was nobody around him. He saw Rukavina walking to his left, putting his gun away behind his back at the waistline, using his left hand. He did not know how much time had elapsed between the time he first heard the shot and the time he first saw Rukavina with the gun.in.his hand putting it away. No one was there; Doherty was not there; neither was Guzman. He thought he asked Rukavina why he shot him, saying, “Why did you shoot me? I’m going to get you.” Rukavina snickered and walked away, saying, “You’ll be getting me, all right.” Golin never saw the gun on the concrete floor.

John Guzman’s testimony was as follows. He and Golin were in the pit when he first saw four or five inspectors arrive. He had known Rukavina for around 20 years, but he did not know that Rukavina was a building inspector at that time. He also knew Vrdolyak, but he did not know that he was an inspector. Both Vrdolyak and Rukavina were dressed in street clothes. He heard Vrdolyak threaten to shut the job down. Golin said, “Well, you can’t. You’re not an elevator — you have to be an elevator inspector” or something to that effect.

While Guzman was still in the pit he heard voices above him. He next heard a struggle, but he never saw how it began. When he got to ground level he heard another conversation between Golin, Rukavina and Vrdolyak. Owen Doherty was restraining Vrdolyak, holding him back with his hands. Guzman saw Doherty looking at the struggle. Rukavina was punching Golin. Rukavina had Golin by the back of the neck, and he was giving him uppercut hook shots. Rukavina had his left arm over the shoulder or head of Golin and was striking him with an uppercut with his right arm. He saw Rukavina strike two blows.

Guzman grabbed Rukavina and tried to pull him off Golin. Golin was just about on his knees. Guzman grabbed Rukavina around the shoulders and neck. He next heard a shot; he did not see a weapon anywhere when he heard the shot. He never saw a gun before the shots were fired. When the shot went off, all three of them were together, combined. It went off during the time Guzman was trying to pull Rukavina off Golin.

After the shot, everything stopped; he and Rukavina jumped up. Golin was still on the ground. He never saw the weapon on the ground at any time before the shooting. He did not see Rukavina pick the gun up off the floor. He did not know whether Rukavina might have picked the gun up off the ground. After the shot Guzman stepped back; he looked at Golin and then Rukavina. Rukavina looked at him “in disbelief.” He had a gun in his hand. After the shooting Rukavina pointed his gun at Guzman. He asked Rukavina why he had shot Golin, and Rukavina said it was an accident. Rukavina never said that his gun had fallen to the ground. He put the gun away, behind his back, saying that it was a mistake; it was an accident.

Guzman left and went about one-half block to a garage and called 911. The police arrived before he returned to the scene. There were no gashes or lacerations on Golin’s face. His lips were swollen and his eye was bruised. During the cross-examination of Guzman the following occurred:

“Q. You never saw [Rukavina] shoot anyone, did you?
A. Well, I know he didn’t shoot him.”

Owen Doherty testified as follows. He had known Golin for about 13 years and had worked with him frequently before October 10, 1982. Golin was his immediate boss. Doherty knew that Rukavina and Vrdolyak were both city ironwork inspectors. He had seen them on other sites before. Those would be the same sites on which he worked with Golin. It was possible that Rukavina and Vrdolyak had inspected sites on which Guzman had worked in the past.

Another building inspector, James Orlando, had come to the site before either Vrdolyak or Rukavina. Vrdolyak and Rukavina came together. Vrdolyak left for a couple of minutes and came back again with Rukavina. Orlando had already left; he did not tell Doherty where he was going. He overheard conversations between Vrdolyak, Rukavina and Golin. Vrdolyak and Rukavina wanted to get up on the building. Golin advised them that they could not go up for about 20 minutes. Vrdolyak threatened to shut the job down. Vrdolyak asked Golin if he knew who he was; Golin replied that he didn’t “give a damn” who Vrdolyak was and advised Vrdolyak that no one was going to shut the job down.

Golin was standing at the machine room. Rukavina went to open one door, and he got into the machine room. They exchanged words and got into a scuffling match. They got a hold of each other and wrestled backwards. Rukavina started the scuffle. He did not see Rukavina strike Golin in the head; they were just scuffling; they were on the ground. Vrdolyak was standing along the wall and shouted that nobody was going to beat up his buddy; he wanted to help Rukavina. Doherty got a hold of Vrdolyak and told him that he wasn’t going anyplace. Doherty was holding Vrdolyak against the wall with his back toward the scuffle. When Doherty heard the shot, he was about 8 to 10 feet away from Golin and Rukavina, who were on the ground. Guzman was trying to separate them. He first realized that the sound he heard was a shot after he heard either Golin or Guzman say, “Why did you have to shoot him?” Rukavina said it was an accident.

After Guzman ran off for help, Doherty saw the gun on the ground; it was the first time he had seen the gun. About ten seconds elapsed between the time Doherty heard the shot until he actually saw the gun on the ground. He did not know whether it had fallen to the concrete. At the time Doherty noticed the gun on the concrete floor, Rukavina was still on his knees; he was crunched down. He saw Rukavina pick the gun up and put it back under his waistband or belt. Doherty did not know if the gun was in a holster. He never saw Rukavina point the gun toward anyone after Doherty turned around when he heard the shot. After Guzman left, Doherty heard Golin ask, “Why did you have to shoot me?” Rukavina said, “It was an accident.” He never saw any cuts on Golin’s lip or bruises or open wounds on his face.

Richard Harold, a co-worker and friend of Golin’s, and Joy Golin, the plaintiff’s wife, testified that the plaintiff’s lip was swollen. Harold also said that Golin had cuts.

All the witnesses who testified for the defense were called by the City of Chicago. James Orlando, a building inspector, testified that he was called to work on Sunday, October 10 by his supervisor, Peter Vrdolyak. At about 3 p.m. he and Vrdolyak went to One Magnificent Mile to investigate the fall of a crane hook from a building. When they arrived at the jobsite, Orlando and Vrdolyak looked around for an elevator to ride to the roof to inspect the crane. Seeing Golin and Guzman in the elevator pit, they identified themselves with their city credentials and informed them that they were inspectors. Vrdolyak asked how they could gain access to the roof, and Golin said there were no elevators to be taken to the roof. Orlando and Vrdolyak each repeated the question, to which Golin responded, “There is a cable here. You could grab it and pull yourself up.” When Vrdolyak again asked how to get to the roof, Golin swore at him and told him, “Don’t bother me.” At that point Vrdolyak ordered work stopped on the job-site and directed Orlando to call the police. As Orlando was leaving to call the police, he met other building inspectors on the site, Rukavina and Nick Fera. Orlando called the police and awaited their arrival. When the police arrived, Orlando directed them to the elevator pit. He did not hear a shot nor did he observe the incident.

Nick Fera testified that on October 10, 1982, he was the first deputy commissioner of the department which enforces the City’s building code. He was directed by his superior to go to the construction site at One Magnificent Mile to meet with Vrdolyak and to investigate the fall of a crane hook. When he arrived he saw Rukavina preparing to go into the jobsite. Fera also spoke with Orlando. He went to the elevator pit and spoke to Vrdolyak and “two gentlemen” that were in the pit. Fera identified himself to the workers in the area, including the men in the pit; he then had a conversation with the men in the pit. He told them that the job was shut down, and one of the men in the pit swore at him and said, “Nobody is shutting this job down.” Because Fera viewed the situation as “out of control,” he told Vrdolyak that he Was going to call the police. Fera then left the area to call the police. When he got to Oak Street a squad car had pulled up; he assumed it was the squad that Orlando had called. Fera returned with the police to the area where he had left Vrdolyak not “more than a couple of minutes” after he had gone to summon the police. He did not witness the fight between Rukavina and Golin.

Peter Vrdolyak testified that he was the assistant director of technical inspections and went with Orlando to investigate the fall of a hook. Before going to that location he called Rukavina at home and told him to go to One Magnificent Mile to see what had happened there. Upon his arrival at the construction site, Vrdolyak identified himself to various workers. He went to the personnel hoist to get a ride up to the top of the building. He asked Doherty for a ride to the top, and Doherty said that the personnel hoist was down. Vrdolyak then asked for a ride on the material hoist. While he was talking to Doherty he was standing “at the edge” of the elevator pit. Two men were in the pit at the time. One of them, Golin, directed vulgar language at him. Because they were interfering with his work, he announced that he was shutting down the job and directed Orlando to call the police. At about that time Fera came to the site and Vrdolyak told him that he “was getting all kinds of abuse on the job, and [he] had shut the job down and [he] had sent Mr. Orlando to get the police.” Golin then climbed out of the elevator pit and again directed vulgar language at him. Fera responded by stating, “This job is shut down. I’m going to get the police.”

Rukavina approached and said to Golin, “Take it easy, [the police] are on their way.” Golin then swung at Rukavina and hit him in the face. Both of them started grappling and fell to the ground. Rukavina was on top of Golin. Guzman then jumped on top of Rukavina and started pummeling him. Vrdolyak went over and grabbed Guzman, and Doherty grabbed Vrdolyak and threw him against a wall. He saw Guzman on top of Rukavina pulling him up by the waist. Doherty pushed Vrdolyak back against the wall, and he heard a loud bang. About a second or two after the shot, Vrdolyak saw a gun on the ground, about four or five feet away from Rukavina. A holster was also on the ground. Vrdolyak saw Rukavina put the gun in the holster and put it in his waistband. At that time Golin said to Rukavina, “I’ll get you. *** You shot me.” Rukavina responded, “It was an accident.”

Chicago detective Phillip Mannion was assigned to investigate the occurrence. He testified that he interviewed Golin at the hospital and observed no injuries to Golin’s face. Golin told him he never saw a gun nor did he see Rukavina holding a gun. Golin told him that a shouting match occurred between him and Rukavina, they began fighting, and he had fallen to the ground with Rukavina on top of him. At that time he heard a shot and realized he had been shot. Mannion also interviewed Guzman, who said he saw Golin and Rukavina wrestling on the ground and holding on to each other. Guzman said he attempted to pull Rukavina off Golin at which time he heard a shot. Mannion interviewed Rukavina, who said the gun had fallen accidentally, hit the concrete and discharged.

Mannion examined the gun and observed that the cylinder was “jammed” and that there appeared to be concrete in the serrations on the hammer of the gun. He had learned that the ground at the site was concrete, and he concluded that the gun striking the concrete had caused the gun to discharge. After reviewing crime laboratory reports concerning the gun, he closed the case as an “accident.”

William Tyrell, an employee of the Chicago Police Crime Detection Laboratory, testified that he found cement particles in the serrated portion of the hammer of the gun which were “similar in type” to cement particles taken from the floor at the site of the incident.

Chicago police firearms examiner Ernest Warner testified that he examined the gun recovered from Rukavina. Warner determined that the safety that was designed into the weapon was not functioning because the safety lever which constitutes a barrier in front of the hammer was not properly connected. Because of the malfunctioning of the safety, it was “very possible the user would not know whether the safety was engaged or disengaged.” He was asked to ascertain if the weapon would discharge in a manner other than was intended by the manufacturer, that is, whether the weapon could accidentally discharge in a way that it was not designed to do. It was his opinion to a reasonable degree of scientific certainty that a “moderate blow struck to the hammer of [the] weapon when the hammer is at rest and the trigger is not touched at all will cause the weapon to discharge.”

Many months before trial, the motion judge had entered an order as a discovery sanction barring Rukavina from testifying. Just before the trial began, Rukavina moved to vacate that order, and his motion was denied. After the City rested, Rukavina renewed his motion to vacate the order barring him from testifying. His motion was denied, and the judge directed Rukavina’s counsel not to raise the issue before the jury. Rukavina then rested without calling any witnesses. The plaintiff did not call any rebuttal witnesses.

In addition to the general verdict finding in favor of the plaintiff, the jury answered special interrogatories as follows:

“Q. Were the defendants guilty of willful and wanton negligence at the time of this occurrence?
A. No.
Q. Was John Rukavina in the scope of his authority at the time of this occurrence?
A. Yes.
Q. Was John Rukavina guilty of willful and wanton conduct at the time of this occurrence?
A. Yes.”

Rukavina assigns several errors. He maintains that his motion for judgment n.o.v. should have been granted; alternatively, that a new trial should have been granted; that the jury answered special interrogatories that are inconsistent with the general verdict and should control; that Rukavina was improperly barred from testifying; that the plaintiff’s attorney engaged in misconduct which deprived Rukavina of a fair trial; that the judge erred in permitting the introduction of certain evidence and permitting a deformed bullet to go to the jury; and that the damages awarded were excessive.

This is a factually confusing case. For reasons to be explained later, we find it to be confusing procedurally as well. Our first task, however, is to pass on Rukavina’s argument that the judge erred in denying his motion for judgment n.o.v., or alternatively, his motion for a new trial. Because both motions are based on the allegation of insufficiency of the evidence to establish willful and wanton conduct, we will treat them together. We are mindful, however, that the supreme court has noted the distinction between the motions:

“We have rather carefully preserved the distinction between the evidentiary situation which will require a new trial (verdict against the manifest weight of the evidence [citation]), and that justifying direction of a verdict or judgment n.o.v. There is, in our judgment, excellent reason for so differentiating to be found in the radically different results of allowance of the two motions, and we believe a more nearly conclusive evidentiary situation ought to be required before a verdict is directed than is necessary to justify a new trial. It is not our intention by this opinion to alter this concept.” (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 509-10, 229 N.E.2d 504.)

In Keen v. Davis (1969), 108 Ill. App. 2d 55, 246 N.E.2d 467, the court held that in determining the propriety of a ruling on a motion for judgment n.o.v., a reviewing court is confronted with a question of law, while in reviewing an order ruling on a motion for a new trial, the standard is whether the trial court abused its discretion.

Out of all the evidence, agreed or disputed, the record establishes that Rukavina and the other inspectors were lawfully on the jobsite investigating a potentially serious accident. Doherty knew that both Vrdolyak and Rukavina were building inspectors; they had been on other jobsites when Doherty was working with Golin. Fera and Orlando testified, without rebuttal, that they had identified themselves to Golin and Guzman as inspectors, informed Golin that the job was going to be shut down and went to call the police. Golin and Guzman admitted that Vrdolyak told them that the job was going to be shut down. It defies reason to conclude that Golin and Guzman were not aware that Vrdolyak and Rukavina were city inspectors. Who else would be talking about shutting a job down? Guzman’s testimony makes it clear that Golin had no intention of obeying Vrdolyak because Vrdolyak was not an elevator inspector. Doherty testified that Golin told Vrdolyak he didn’t “give a damn” who Vrdolyak was and that no one was going to shut the job down. Golin himself testified that he called Harold on the radio and told him “there’s some guy here who says he’s an inspector and says we are going to go to jail if I touch the elevator button.” (Emphasis added.) In spite of that, Golin did operate the elevator. Golin explained that he thought Vrdolyak was an inspector “with peco Crane [sic].”

We judge that any factual conclusion that Golin and Guzman were not aware that Rukavina and Vrdolyak were city inspectors is against the manifest weight of the evidence. By this observation we do not suggest that the fact that Golin and Guzman were aware of Rukavina’s position is conclusive. It is, however, probative on the question of the weight to be given to the testimony of Guzman, who is, as the plaintiff concedes, the key witness.

We will accept the plaintiff’s argument that the question of who started the fight is one of fact and that a determination by the fact finder that Rukavina started it is not against the manifest weight of the evidence. But the fact that Rukavina may have started the fight also is not conclusive. The trial judge ruled at the close of the plaintiff’s case that the plaintiff had failed to establish that the shooting of the plaintiff was due to Rukavina’s willful and wanton conduct; consequently, he directed a verdict on count III, which was at that time the only count alleging willful and wanton conduct. He later changed his mind and allowed counts I and III to be amended to allege willful and wanton conduct. He based his ruling on his belief that if the jury found that Rukavina had struck the first blow, that finding could support a verdict for willful and wanton conduct. We disagree with the judge’s reasoning, and the plaintiff does not urge that position in this court (nor did he in the trial court).

Boiled down to its factual essentials, the issue is whether the evidence supports a conclusion that Rukavina had the gun in his hand at the time the gun went off. For if the gun fell on the concrete and was discharged as a result, it is our judgment that willful and wanton conduct had not been established as a matter of law. The plaintiff suggests that willful and wanton misconduct “may” be established by the failure of the plaintiff to discover the malfunctioning safety on the gun or by the fact that the defendant was carrying a loaded gun onto a building site and then getting into a fight when “he may have been aware that the safety device on the gun was not functioning properly.” (Emphasis added.) There is no evidence that the defendant was aware that the safety device on the gun was not functioning. Moreover, we reject the plaintiff’s suggestions for two reasons: we disagree that those actions by the defendant would support a finding of willful and wanton conduct; and those were not the theories of recovery alleged in the complaint or argued to the trial court.

Before discussing the quantum of evidence required, it is appropriate to discuss the burden of proof. All agree that the plaintiff must prove that it is more probably true than not true that the shooting occurred in the manner claimed by the plaintiff. In this case, that means that the plaintiff must prove that it is more, probably true than not true that Rukavina had the gun in his hand before it discharged. The plaintiff pinpoints the issue in his brief: “The point to be gotten is that only proof of how the gunshot occurred is inferential, and thus was properly left to the jury to determine.” (Emphasis in original.) The plaintiff thus concedes, as he must, that this is a circumstantial evidence case. Negligence may be shown by circumstantial evidence. (Mort v. Walter (1983), 98 Ill. 2d 391, 457 N.E.2d 18.) Circumstantial evidence need not both create a reasonable inference of the fact to be shown and also exclude all other possible inferences. (Illinois Bell Telephone Co. v. Purex Corp., Ltd. (1980), 90 Ill. App. 3d 690, 413 N.E.2d 106.) Liability, however, cannot.be based upon surmise or speculation as to what might have happened to cause the plaintiff’s injury. (Monaghan v. DiPaulo Construction Co. (1986), 140 Ill. App. 3d 921, 489 N.E.2d 409.) In order to establish the element of proximate cause, the plaintiff must demonstrate with reasonable certainty that a defendant’s alleged conduct or omissions caused the plaintiff’s injury. Whitman v. Lopatkiewicz (1987), 152 Ill. App. 3d 332, 504 N.E.2d 243.

We come now to the testimony of the key witness, John Guzman. As the plaintiff’s attorney told the court at the hearing on the post-trial motion, “the jury obviously based their decision” on the testimony of “Guzman[,] who was right there and heard the shot and a second or two later saw the gun in the hand of the defendant.”

We recognize that a reviewing court may not substitute its judgment for that of the jury in determining the credibility of -witnesses or the weight to be given their testimony. That does not mean, however, that a reviewing court must turn a blind eye to the obvious and inherent infirmities of a witness’ testimony, (cf. Pedrick, 37 Ill. 2d at 511.) We believe that Guzman’s testimony does contain some inherent infirmities, and it is not consistent with other evidence offered by the plaintiff.

First, as we have previously noted, it is unreasonable to accept Guzman’s testimony that he was unaware that Vrdolyak and Rukavina were city inspectors. Second, his testimony is not consistent with the testimony of Doherty, who said that he saw the gun on the concrete floor after Guzman left and while Golin was still on the ground. Doherty also testified that he never saw the defendant point the gun at anyone. Golin never testified he saw Rukavina point the gun at anyone. Doherty said he saw no blows struck and that Golin and Rukavina were scuffling, holding each other and wrestling backwards. Guzman testified that Rukavina had his left arm over the shoulder or head of Golin and was striking him with his right arm. When the shot went off, Guzman was trying to pull Rukavina off Golin. All three of them were “combined.” Guzman’s own testimony, in our judgment, establishes the improbability that the gun was in Rukavina’s hand when it discharged. It is consistent with what Guzman told Officer Mannion: Golin and Rukavina were wrestling on the ground and holding on to each other; he attempted to pull Rukavina off Golin when he heard the shot.

Last, we point out that on cross-examination Guzman testified that he knew that Rukavina had not shot Golin. No attempt was made on redirect to have Guzman explain his testimony. The plaintiff now tells us that the testimony may be a misstatement or error of the court reporter. We cannot accept that explanation. The authenticated record before us imports verity and is the sole conclusive and unimpeachable evidence of proceedings of the lower court. Kazubowski v. Kazubowski (1970), 45 Ill. 2d 405, 259 N.E.2d 282. See also Genck v. McGeath (1956), 9 Ill. App. 2d 145, 132 N.E.2d 437.

The plaintiff attempts to explain the presence of cement particles in the hammer of the gun by suggesting that Rukavina could have dropped the gun “an instant after the shooting, in disbelief at what he had done, and then only a few moments later picked it up from the cement floor.” Alternatively, the plaintiff argues, Rukavina “could have fired the gun and then dropped it as a result of the remaining motion of the struggle, before everything stopped.” Doherty, however, testified that the gun was still on the ground almost 10 seconds after the shooting and after Guzman had left.

The plaintiff refers us to Glover v. City of Chicago (1982), 106 Ill. App. 3d 1066, 436 N.E.2d 623. We believe Glover is distinguishable. In that case it was undisputed that an officer took his gun out of his holster and dropped it. There is no proof in this case that Rukavina took the gun out before it landed on the concrete floor.

The position we take here is consistent with the position taken by the supreme court in the landmark Pedrick case, in which the court pointed out the weaknesses in the testimony of the plaintiffs witnesses. It described the plaintiffs evidence as “highly equivocal” and of “dubious probative value.” (Pedrick, 37 Ill. 2d at 511.) The court concluded, as a matter of law, that all of the evidence, viewed most favorably to the plaintiff, so overwhelmingly favored the defendant that no contrary verdict based on the evidence could ever stand. We so conclude in this case.

To sum up, the defendant was not violating any law while carrying the gun; he was in the performance of his duties; the plaintiff defied the city inspectors to the point that they had to call the police; a fight broke out; no one saw a gun before or during the fight; the plaintiff’s principal witness, Guzman, saw Rukavina using both hands during the fight and did not see a gun; Rukavina, Golin and Guzman were all on the ground when the shot went off; Doherty saw the gun on the ground several seconds after the shot; the unrebutted expert testimony established that the gun could have discharged when the hammer came in contact with the concrete floor; and the hammer did come in contact with the concrete floor. To counter all this evidence, the plaintiff relies on the testimony of Guzman that he saw the gun in Rukavina’s hand a few seconds after the shooting and that Rukavina pointed the gun at him.

To accept the plaintiff’s argument that Guzman’s testimony on this narrow point means that we must ignore all the other evidence, including the testimony of the plaintiff’s own witness, Doherty, and the other testimony of Guzman himself that Rukavina was using both hands to hold and to strike Golin. We believe under the Pedrick standard that all the evidence must be considered, not just the testimony of Guzman. As a matter of law, we hold that the evidence fails to establish a reasonable certainty that the gun was in Rukavina’s hand at the time it was discharged. To accept the plaintiff’s argument that the equivocal and contradicted testimony of Guzman is sufficient to overcome all of the other evidence introduced, including the testimony of the police experts, would be a reversion to the “scintilla-of-evidence” rule overruled in Pedrick. For that reason, the order granting judgment n.o.v. on count I is affirmed.

As we noted before, this case is procedurally confusing. We referred to the judge’s ruling granting a directed verdict on count III on the ground that the plaintiff had failed, as a matter of law, to show that the shooting was the result of willful and wanton misconduct. The judge later changed his mind and allowed the case to go to the jury for a reason with which we disagree.

More confusion arose with the jury verdict. The jury had answered one interrogatory that Rukavina was in the “scope of his authority at the time of the occurrence” and another interrogatory that Rukavina was guilty of willful and wanton conduct at the time of the occurrence. Despite those specific findings the jury, in effect, inexplicably returned a verdict for the City of Chicago. The verdict is inconsistent with the special interrogatories.

The record is also confusing as to the reasons for the judge’s granting judgment n.o.v. on count I and denying it as to count III. After the judge had granted judgment n.o.v. on count I, the parties appeared and argued what order could be appropriately entered. At one point Rukavina’s attorney was arguing that there could not be any award for compensatory damages of $150,000 since judgment n.o.v. had been granted on that count. The judge raised the question of whether punitive damages would lie where compensatory damages did not. (The answer to the question is that punitive damages will not lie in the absence of compensatory damages. See Sorkin v. Blackman, Kallick & Co., Ltd. (1989), 184 Ill. App. 3d 873, 540 N.E.2d 999.) We note that both parties told us in oral argument that the judge's reason for granting judgment n.o.v. on count I was based on his interpretation of the rule of respondeat superior. We are not certain that that was the only reason he expressed. It is true that the judge said that the reason he was “allowing the n.o.v. on count I is because of the agency question.” However, he also later said the following:

“My ruling on count I has nothing to do with the jury’s finding of scope [of authority]. Mine is based upon the proposition that the burden of proving willful and wanton, at first count I, was lacking.”

In any event, the judge finally concluded that count III embraced a prayer for compensatory damages. We disagree. Count III prayed only for punitive damages. Therefore, if the plaintiff’s claim for compensatory damages must fall, so must his claim for punitive damages. Moreover, as we have explained, the claim for punitive damages must fall for the additional reason that the evidence fails to establish willful and wanton conduct on the part of Rukavina.

Because we conclude that the evidence, as a matter of law, is insufficient to sustain any finding of willful and wanton conduct, we judge that the appropriate order is to affirm the order granting judgment n.o.v'. on count I and to reverse the order denying judgment n.o.v. on count III. Remandment for a new trial on either count would be inappropriate.

Judgment affirmed in part and reversed in part.

RAKOWSKI, P.J., and LaPORTA, J., concur.


source: Caselaw Access Project

author: JUSTICE LaPORTA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANKLIN MITCHELL, Defendant-Appellant.
    First District (6th Division)
    No. 1-89-1916
    Opinion filed February 1, 1991.

      Howard Wilson, P.C., of Chicago (Janette C. Wilson, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Joseph Brent, and David Stabrawa, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LaPORTA

delivered the opinion of the court:

Defendant Franklin Mitchell was convicted by a jury of attempted murder and sentenced to six years in prison after he admitted he fired three shotgun rounds at a man on the roof of a building near his apartment. The State successfully proved at trial that defendant fired at three people who were on the roof — two officers and the owner of the building — even after police officers identified themselves and urged defendant to stop shooting.

Defendant contended at trial that he fired two shots into the air and a third into the ground as a warning to the person he saw on the roof and only fired after the man he saw failed to respond to his request for identification. The jury convicted defendant of three counts of attempted murder..

On appeal, defendant contends the State failed to prove he had the specific intent to commit murder, as required for a conviction of attempted murder, and failed to prove he took a substantial step in furtherance of murder as required for an attempted murder conviction. Defendant also argues that the court erred in its jury instructions which pertained to an out-of-court statement made by the defendant that was admitted into evidence. Defendant argues further that the trial judge erred in failing to give Prim instructions to the jury when he learned they were deadlocked after five hours of deliberation.

In People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601, cert. denied (1973), 412 U.S. 918, 37 L. Ed. 2d 144, 93 S. Ct. 2731 (superseded by statute as stated in People v. DeSimone (1982), 108 Ill. App. 3d 1015, 439 N.E.2d 1811), the court did not formulate a specific instruction to be given to a deadlocked jury but did express approval of section 5.4 of the American Bar Association Standards Relating to Trial by Jury (1968), which states: “If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction ***.” The directive in Prim was aimed mainly at eliminating instructions to concede to the majority. People v. Campbell (1987), 163 Ill. App. 3d 1023, 516 N.E.2d 1364.

Defendant admits and the State has proven that three shots were fired on August 30, 1987. In August 1987, Franklin Mitchell lived on Chicago’s west side across the alley from a shoe store that had been burglarized four times that summer. On the evening of August 30, defendant saw someone on the roof of the shoe store. He picked up his shotgun and fired three times. No one was injured. After the shooting, defendant went to the alley between his home and the store where police arrested him. He was tried and convicted of three counts of attempted murder.

At trial, Lt. John Farrell testified that at 8:20 p.m. on August 30, he and three other police officers went to Sun Shoe Store on Chicago’s west side to investigate a burglary that had occurred August 29. As part of the investigation, Farrell, the store owner, Hong Ja Worle, and another officer, James Jones, drove an unmarked police car around to the back of the store. They parked the car in the alley, and the three climbed a stairway onto the roof of the building to see where the burglar or burglars had entered.

Farrell testified that Jones and Worley stopped as soon as they were on the roof and that he, Farrell, proceeded to the shoe store roof next door to investigate where the illegal entry occurred. Farrell testified that he heard a shot and took cover. In the subsequent moments, Farrell heard what sounded like a round of ammunition being chambered into a shotgun and exchanged conversation with Jones, speculating about where the shot originated. Farrell testified that the sound seemed to come from south of the shoe store, across the alley on Monroe Street where a residential building was located.

Farrell testified that he yelled, “We’re police officers, don’t shoot,” and that someone across the alley yelled, “Fuck you, police officers.” He testified that after he identified himself, he saw a muzzle flash and a figure in the window of the apartment later identified as the defendant’s apartment. Farrell testified that he pulled his 9 millimeter handgun and fired one shot toward the figure, missing him. He testified that he then identified himself several more times and heard Jones yell the. same thing back at him several times and fire one more shot. He testified that each time a shot was fired he heard pellets skipping off the wall and roof nearby.

Farrell testified that after other police officers arrived and he told them where the shots came from, police officers secured the area around the apartment building. He testified that at that point, defendant came down from the second floor and asked police what was going on. Farrell noted that while defendant talked with police officers below, he and other officers went to defendant’s apartment, where they recovered three expended shells from the floor of the porch and a 12 gauge shotgun.

On cross-examination, Farrell acknowledged that there was at least one tree in the lot between the officers and the defendant’s apartment, that the incident occurred after 8:20 p.m. at night and that he could not identify the defendant as the person at the window from where the muzzle flash originated or as the person who yelled the profanities. He admitted that no shotgun pellets were recovered from the roof of the building despite his testimony that the shotgun blasts were aimed in his direction and that they had heard the pellets skipping off the wall and roof.

Hong Ja Worle testified that, at first, she didn’t know whether the noise she heard was gunfire or a firecracker. She testified that the police officers were yelling, “Police officer, don’t shoot,” but that someone kept yelling back from the other side of the alley, “Fuck you police, fuck you,” and then he would shoot again. She testified that someone shot at the police officer twice, Farrell returned with one shot and then someone shot at them once again. She also testified that she believed two different voices could be heard from across the alley but added that she kept her head down during the entire incident and saw nothing.

Sergeant James Jones testified that when they heard shots, Farrell, and then later he, yelled “Don’t shoot, we’re police,” but a male voice responded, “Fuck you, police officers.” He testified that he heard a second shotgun round being chambered, a shot and then “a crack which would account for the pellets hitting the wall behind me.” Jones testified that he felt a pebble hit his foot, which caused no injury. He testified that once again the officers announced their presence and once again a voice yelled back, “Fuck you, police officer” and another shot was fired. Jones testified that police officers and the defendant exchanged words at least three times while the shooting was going on.

He .testified that when the shooting ended and other police officers arrived on the scene, the defendant came down from his apartment and asked the officers, “What’s happening?” Jones related that another officer told the defendant about shots being fired and then the defendant stated “words to the effect he had been shooting at some people on the roof of the shoe store.” On cross-examination, Jones admitted that it was dark at the time of the shooting and that no pellets were retrieved from the rooftop.

The two officers that accompanied Farrell and Jones to the shoe store, Barbara Lebrón and John Ferriter, also testified that they exited the shoe store and drove down the alley after they heard gunshots. Ferriter testified that defendant came down to the alley after the shootings, and when defendant asked what was happening, he responded that “somebody from this house was shooting at the police.” Ferriter testified that defendant then said, “I was shooting at somebody that was breaking into that building over there.” Ferriter then arrested defendant and joined other police officers in a search of the porch area of defendant’s apartment. He testified that police found three expended shotgun shells and a 12 gauge shotgun with one live round still in the chamber. Ferriter testified that defendant claimed ownership of the shotgun and at no time indicated that he was simply firing warning shots at the people on the nearby roof. Lebrón testified that she was the one who discovered the shotgun, stuffed under a cushion of the sofa. She testified that the barrel of the" gun had cushion material stuck to it, indicating to her that the barrel was still hot when it was put below the cushion.

Assistant State’s Attorney Richard A. Stevens also testified for the State. He testified that he spoke to defendant at about 2 a.m. after the evening of the shooting and defendant agreed to sign a statement written by Stevens as told to him by defendant. Stevens testified that defendant did not have his reading glasses, but he did agree to let Stevens read the statement and the two made several corrections before defendant signed the statement. Stevens testified that defendant never spoke about “warning shots” during the interview.

On cross-examination Stevens testified that defendant never mentioned to him that his glasses were broken by the police officers who arrested him. Stevens testified that defendant told him he yelled, “What are you doing up there?” or words to that effect and then when he got no response, he opened fire once at the man on the roof and then at a person below in his yard. Stevens said defendant told him he fired possibly two more shots at the person on the roof.

Stevens then read defendant’s signed statement into the record. The statement included his acknowledgment and waiver of his Miranda rights and included, in part: “Mr. Mitchell went to his rear porch and observed a white man crouched down on the roof of a store across the alley. Mr. Mitchell yelled what are you doing up there end quote. There was no response, so Mr. Mitchell took a shotgun he keeps on the back porch and fired once at the man on the roof. Mr. Mitchell then heard someone in his yard below. He fired at that person after he was fired at one time. Mr. Mitchell then fired at least one more time possibly twice at the man on the roof. Mr. Mitchell never got a response from the man on the roof and then heard anyone identify themselves as police officers.” The statement also denied any drug or alcohol use and included an admission that defendant had not been threatened in return for his statement, nor was he made any promises.

After Stevens’ testimony, the State rested and the defense called its only witness, the defendant, Mitchell, to the stand. Defendant testified that on the evening of the shooting, he saw a man crouched on the roof of the shoe store and hollered at him, “What are you doing up there?” Defendant testified that he then picked up his shotgun located on the back porch and fired it up in the air. He testified that when he then heard noise below him, he fired another shot down into the dirt below. He testified that a neighbor then came running down the alley, telling him not to shoot anymore but he had his finger on the trigger already and fired a third shot. Defendant testified that he then put the shotgun down on the couch. He testified he saw only one man on the roof and that he never “uttered a word” to that man. Defendant testified that he fired two shots into the air and that he surrendered to police after the third shot was fired.

Defendant testified that when he approached Sgt. Farrell, Farrell said to him, “Didn’t you see we were white?” and that he started to respond, “Since when did burglars have a color preference?” But defendant testified that before he could complete his sentence, Farrell swung his black flashlight toward defendant’s groin and then slapped defendant’s glasses off his face.

Defendant testified that he had no intent to shoot anyone or at anyone. He testified that he didn’t speak to anyone in his yard and first spoke to an assistant Cook County State’s Attorney at the station. He challenged the accuracy of the statement read in court. He testified that he never told Stevens that he saw a “white” man on the roof, only a man. He testified that he never told Stevens he was shooting “at a person” but only that he had fired in the air.

On appeal, defendant contends the evidence failed to prove he had the requisite intent or that he took a substantial step toward committing the specific offense, two factors required for an attempted murder conviction. A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267, cert. denied (1985), 475 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267.) When a conviction is challenged on the basis of insufficient evidence, the relevant question is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Collins, 106 Ill. 2d 237.

First we consider whether defendant had the requisite intent to commit attempted murder. The offense of attempted murder requires a mental state of specific intent to kill. (People v. Mitchell (1981), 98 Ill. App. 3d 398, 424 N.E.2d 658.) Intent is a state of mind which, if not admitted, can be established by proof of surrounding circumstances, including the character of the assault, the use of a deadly weapon and other matters of which an intent to kill may be inferred. (People v. Winters (1986), 151 Ill. App. 3d 402, 502 N.E.2d 841.) The very fact of firing a gun at a person supports the conclusion that the person doing so acted with an intent to kill. People v. Thorns (1978), 62 Ill. App. 3d 1028, 379 N.E.2d 641.

The State argues that witness testimony and defendant’s own testimony, through his statement to the assistant Cook County State’s Attorney, supported the jury’s finding that defendant had the requisite intent. Stevens testified and defendant acknowledged in his statement that defendant shot at a man on the roof of the shoe store. Defendant cites People v. Trinkle (1977), 68 Ill. 2d 198, 369 N.E.2d 888, for the proposition that the intent specified in the charge must be an intent to commit a specific crime. In Trinkle, the indictment itself was drafted in error. There, the indictment against Trinkle charged him with attempted murder when “he did without lawful justification shoot Gayle Lane with a gun knowing that such act created a strong probability of death or great bodily harm to Gayle Lane or another.” (Emphasis added.) (68 Ill. 2d at 200.) To be convicted of attempted murder, it is not sufficient that defendant intended to cause great bodily harm. The intent must be an intent to murder. Defendant here was charged with an attempt to commit the specific crime of murder. He was not charged with attempt to commit great bodily harm and therefore Trinkle is distinguishable from our case.

Defendant cites People v. Thomas (1978), 60 Ill. App. 3d 673, 377 N.E.2d 195, for the proposition that the “mere knowledge that the consequences of one’s action may result in death" or grave bodily injury, or possession of the intent to do bodily harm is insufficient to sustain an attempted murder conviction.” However, that is not the holding of the court in that case. The court in Thomas held that to obtain a conviction on the charge of attempted murder, the indictment must charge a specific intent to commit murder, and the jury must be instructed accordingly. Defendant here was charged with the specific offense of attempted murder, and the jury was properly instructed of that charge.

Defendant argues on appeal that “according to the facts presented in this case, the defendant, Franklin Mitchell, fired warning shots,” thus showing an absence of intent to commit murder. The defendant offered only his own testimony to support his argument. However, three other witnesses, who had been pinned to the roof of the building, testified that the defendant yelled at them and fired in their direction. In his statement, read into evidence by the assistant Cook County State’s Attorney, defendant acknowledged that he saw a person on the roof of another building and then fired a shotgun “at the man on the roof.” Where the signed statement was inconsistent with defendant’s trial testimony regarding his intent, it is the function of the jury to determine the existence of requisite intent, and that determination will not be disturbed on" review unless a reasonable doubt exists as to the defendant’s guilt. People v. Myers (1980), 83 Ill. App. 3d 1073, 404 N.E.2d 641.

The trier of fact, in our case the jury, had the responsibility to determine the credibility of the witnesses. The defendant testified that he was firing warning shots only. The police officers and store owner testified as to the verbal exchanges that took place from the rooftop. A third police officer testified that defendant told him he was shooting at a burglar on the store roof. An assistant Cook County State’s Attorney testified that defendant told him he was shooting at someone on the roof. Given this testimony, we hold that the record supports the jury’s findings.

We next consider whether defendant committed any act which can be considered as a substantial step toward commission of murder, which is another essential element of the crime of attempted murder. A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense. (Ill. Rev. Stat. 1987, ch. 38, par. 8— 4(a).) Murder is defined as an act in which a person “kills an individual without lawful justification [whether he] intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or *** knows that such acts create a strong probability of death *** to that individual or another.” Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a).

The State argues that the trial testimony, when considered in the light most favorable to the prosecution, proves the defendant took a substantial step toward the commission of murder when he fired three shots at the two police officers and the store owner and then ignored the officers’ warnings informing him that they were police officers. The defendant argues that trial evidence proves defendant did not shoot at the police officers. Defendant argues that several facts brought out at trial support this conclusion, including the facts that no one actually witnessed him shooting the gun, defendant denied firing at the people on the roof and that no pellets were recovered from the roof where the officers and store owner had been pinned down when the shooting occurred.

Defendant testified at trial that he saw someone on the roof across the alley and then went through the physical act of moving to another location on his porch and picking up a shotgun. Police officers testified that at least once they heard a shotgun round being “chambered in[to]” the gun. These actions can be construed as physical acts in furtherance of the offense.

Defendant admits he fired three shots but argues that these rounds were fired as warnings. But, intent is not the determinative issue in establishing what conduct comprises a substantial step in furtherance of an offense, it is the act itself. Defendant admits picking up the gun and admits firing the three shots. The jury found defendant took a substantial step toward committing the crime and was guilty of attempted murder. We find the record supports the jury’s conclusion.

Defendant also cites as error the trial court’s instructions to the jury to continue deliberating when, after five hours of deliberation, the jury indicated that it was deadlocked. Defendant contends that the trial court should have issued instructions to the jury in accordance with the Prim decision, assuring that those in the minority position on the jury would not feel pressured to concede to the majority. The State argues that defendant has waived this issue on appeal by failing to cite any authority in his brief or anything from the record to support his contentions. An issue not argued in a party’s brief is waived despite general allegations of error. (People v. Shaw (1985), 133 Ill. App. 3d 391, 404, 478 N.E.2d 1142, 1153.) Supreme Court Rule 341(e)(7) provides, in pertinent part, that appellant’s brief “shall contain the contentions of the appellant and the reasons therefor, with citations of the authorities and the pages of the record relied on. *** Points not argued are waived.” 134 Ill. 2d R. 341(e)(7), see also People v. Ortiz (1980), 91 Ill. App. 3d 466, 414 N.E.2d 1072.

We find nothing in the record and nothing in defendant’s brief to support these contentions of error. Defendant cites no case authority to support his argument and therefore has waived these issues on appeal. Even if we were to consider the issue of the court’s instructions to the deadlocked jury, we would find no error. Both the State and defendant agree that the court instructed the jury to continue to deliberate. That instruction has been held to be simple, neutral and in no way coercive. People v. Farella (1979), 79 Ill. App. 3d 440, 398 N.E.2d 615.

Defendant also argues that his out-of-court statement to police officers following his arrest was improperly submitted to the jury as a confession or admission of guilt. Defendant contends the court improperly characterizes these statements as a “confession” and the court erred in the instruction it gave to the jury. In fact, no jury instruction was given with regard to a “confession.” Instead, the jury received only a general instruction that it should determine what weight it should give to any statements made by the defendant.

Finally, defendant contends that the court erred when it failed to instruct the jury on the lesser included offenses of aggravated assault and reckless conduct. Defendant briefly argues this issue citing four cases to support his position. In the first, People v. Davis (1981), 100 Ill. App. 3d 268, 426 N.E.2d 1047, the appellate court let stand an attempted murder conviction and vacated two aggravated battery convictions as lesser included offenses because the court considered the defendant’s actions part of a single physical act. In Myers (83 Ill. App. 3d 1073), an attempted murder conviction was vacated because the court found that the defendant committed a single physical act for which he was convicted of armed violence and found that armed violence is a lesser included offense of attempted murder.

These cases are distinguishable here. In Davis and Myers, the defendants each committed a single act of violence but then were convicted of multiple offenses. The reviewing courts found this inappropriate since the defendant had committed only one act. Here, the defendant committed one act of violence and was convicted on one act of violence. He was not charged with lesser included offenses that might have necessitated reversals such as were required in Davis and Myers.

Two other cases cited by defendant involve jury instructions in attempted murder cases. In People v. Koshiol (1970), 45 Ill. 2d 573, 262 N.E.2d 446, the supreme court affirmed an attempted murder conviction and found no error in instructing the jury that proof of motive is not required. The reviewing court in Thorns (62 Ill. App. 3d 1028), affirmed an attempted murder conviction, stating that specific intent to take a human life, even if based on circumstantial evidence, is an essential element of the crime of attempted murder. The court also considered what jury instructions were proper to help the jury evaluate the testimony of a former drug addict. Neither of these cases supports defendant’s position that failure to include an instruction as to lesser included offenses where none was offered by the defendant was error.

Defendant misquotes People v. Salazar (1976), 37 Ill. App. 3d 800, 347 N.E.2d 86, to argue that the appellate court has the power to reduce a conviction from attempted murder to reckless homicide. In Salazar the court reduced a conviction for involuntary manslaughter to reckless homicide after the State conceded that the trial court improperly refused an instruction on reckless homicide. Here, defendant never tendered instructions on any lesser included offenses to the circuit court nor objected to the instructions given or the failure of the court on its own to instruct on lesser included offenses and, therefore, the court did not refuse a tendered instruction. Also, since no death occurred, it is illogical for defendant to seek to have his conviction reduced from attempted murder to reckless homicide.

Defendant argues on appeal that: “In the case before this court on appeal, the criminal attempt constitutes the greater crime. The defendant’s conviction for attempt murder was based upon a lesser included offense of armed violence, which was based on the underlying felony of aggravated battery. *** Thus the court can as the appellate court did in [Salazar] reduce the conviction from attempt murder to reckless homicide.” Defendant has not cited to any authority which supports his position.

A reviewing court is entitled to have the issues clearly defined and is not a depository in which the appealing party may dump the burden of argument and research. (Williams v. Danley Lumber Co. (1984), 129 Ill. App. 3d 325, 472 N.E.2d 586.) The appellate court, however, in the exercise of its responsibility for a just result, can ignore considerations of waiver and decide a case on grounds even though they are not properly argued by a party. Anderson v. Smith (1980), 91 Ill. App. 3d 938, 415 N.E.2d 643.

In general, a defendant is entitled to an instruction on a lesser included offense when all the elements of that offense are included within the greater offense and if there is some foundation in the evidence that would support a conviction for the lesser offense. People v. Dace (1983), 114 Ill. App. 3d 908, 449 N.E.2d 1031, aff’d (1984), 104 Ill. 2d 96, 470 N.E.2d 993.

Here, defendant did not offer alternative or additional jury instructions on lesser included offenses. Defense counsel argued in her post-trial motion that the “defendant should not be prejudiced even though the defense attorney may have made a tactical decision not to present such an instruction.”

The State responded that since defendant failed to request instructions on lesser included offenses of aggravated assault and reckless conduct, the trial court did not err in failing to instruct the jury on these offenses. The State argues that the defense strategy was to instruct the jury only as to attempted murder so that the jury could either convict defendant of attempted murder or acquit him. The State argues that the defendant cannot now complain that the trial court failed to instruct the jury on lesser included offenses when he did not request the necessary instructions.

In People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141, the supreme court stated that a defendant waives any error contained in jury instructions if he does not object or proffer alternative instructions at trial and, ordinarily, issues not properly raised in .a defendant’s post-trial motion will not be considered on appeal. However, if the interests of justice require, substantial defects in jury instructions in criminal cases may be considered, even though the defendant has failed to make timely objections. (134 Ill. 2d R. 451(c).) The exception will be invoked to correct “grave errors,” such as failing to instruct on the burden of proof and the elements of the offense. Reddick, 123 Ill. 2d at 198.

We see no such grave error here. Proper instructions were given for the crime of which defendant was convicted. He offered no additional instructions at trial and made no objections to the instructions given. We find no error.

For the reasons stated above, we affirm defendant’s conviction for attempted murder.

Judgment affirmed.

RAKOWSKI, P.J., and EGAN, J., concur.


author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MELVIN REED, Defendant-Appellant.
    First District (1st Division)
    No. 1-87-1587
    Opinion filed February 4, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Stephen L. Richards, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb and David R. Butzen, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Following a bench trial, Melvin Reed was found guilty pursuant to section 8 — 4(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 8 — 4(a)) for the attempted murder of Earl Robertson, rather than guilty but mentally ill or not guilty by reason of insanity. Thereafter, the trial court sentenced Reed to 40 years in the Illinois Department of Corrections.

At trial, Robertson testified that he owned a service station at the southeast corner of 111th Street and Normal Avenue; that he had been friendly with Reed since the summer of 1984; that Reed owned the building across the street from his service station, operated a snack shop, and managed three apartments therein; that Reed operated a decorating business; that Claude Haynes was Reed’s tenant; that three months after Haynes moved into the apartment building, Haynes complained that Reed raised his rent; that after Haynes complained that his rent was too high, Reed complained that Haynes was not paying his rent; that in early April 1985, he saw a man break a car’s windshield in front of Reed’s building and that such man later told Robertson that someone had paid him to do it; and that about a week after the windshield had been broken, he noticed that Reed’s building’s front window was broken.

Robertson also testified that about two weeks before he was shot, Reed said that he wished he could discover who broke his building’s window, that if he found out who broke his window he would “kill him,” and that he thought Haynes had something to do with it. Further, Robertson testified that while he was walking towards his service station on May 14, 1985, he exchanged greetings with Reed; that Robertson walked towards his car, which was parked next to his nephew Shawn Sproles’ car; that Sproles was lying on the ground working on Sproles’ car; that he noticed Sproles and Reed wrestling; that Sproles ran to the front of the car; and that Reed shot his gun. Additionally, Robertson testified that when he told Reed to put the gun down before he got into trouble or hurt someone, Reed turned and said “I owe you some too.” Then, Reed shot Robertson three times. As a result of the gunshot wounds, Robertson is a paraplegic.

Next, Sproles testified. He testified that in the summer of 1984, Haynes became Reed’s tenant; that on Christmas Day in 1984, Haynes’ car window was broken; and that two weeks before Reed shot Robertson, Reed’s apartment window had been broken.- Sproles stated that Reed was standing in front of the snack shop when Sproles arrived at Robertson’s service station; that when Sproles was kneeling down to take the wheel off his car, Reed walked across the street, approached Sproles and. said, “I heard you shot my window out”; that Sproles said “get out of my face” and that Reed tried to kick Sproles; that Sproles caught Reed’s foot and threw him to the ground; and that when Reed pulled a gun out of his pocket, Sproles fled down an alley. Sproles stated that “it seemed like he was in complete control of what he was doing to me because he was just a person with a temper.”

Two other witnesses, Monroe Thompson and Jerry Webb, testified similarly to the facts stated above. In addition, Jerry Webb testified that on the day of the shooting, it looked like Reed was decorating one of his apartments because Reed was bringing supplies into his building; that about two weeks before the shooting, he saw Reed fix a window; and that Reed appeared calm before and after the shooting.

Officer James Griffin of the Chicago police department testified that he was in the vicinity of 111th Street and Normal Avenue when he heard gunshots and stopped his car; that he saw Reed crossing 111th Street carrying a bluesteel revolver; that he ordered Reed to drop his gun; that Reed asked whether Officer Griffin was a police officer; that Officer Griffin answered affirmatively and again ordered Reed to drop his gun and place his hands on the van; that Reed obeyed; that Reed was placed under arrest; that when Reed was taken to the police station, Reed asked him to take care of his van because “people in the neighborhood” might break his windows or vandalize it; that at the police station, Reed said he believed Sproles had broken his snack shop window and broken his car window; and that when Officer Griffin told Reed that his van was safe, Reed said thank you.

Detective JoAnne Ryan of the Chicago police department testified that when she spoke with Reed at the police station on May 14, 1985, Reed was coherent, courteous, answered questions in a normal fashion and appeared calm; that Reed said the shooting was not an accident, that he said he was having problems with tenants, and that he asked for a lawyer.

During the defense’s case in chief, Dr. Robert Reifman testified that Reed was insane when he shot Robertson because he suffered from “severe” or “organic” dementia. Dr. Reifman testified that his diagnosis was based upon his April 23, 1986, examination of Reed and the following reports: a January 13, 1986, examination conducted by Dr. Gerson Kaplan; a May 28, 1985, psychiatric examination; a psychiatric examination performed 13 days after the shooting; a 1984 social security evaluation performed by a psychologist and a psychiatrist; a social security review board evaluation; a social history which was prepared by Reed’s mother and son; and the police reports regarding the shooting.

Based upon the social history, Dr. Reifman’s opinion was that Reed suffered from memory loss, that he had periods of confusion, that he would hear voices, that he would see things, and that Reed apparently felt that his neighbors were harassing him, i.e., breaking his windows. However, Dr. Reifman stated that he would have to reevaluate his opinion if the information received from the family was contrived.

Also during the defendant’s case in chief, Dr. Gilbert Bogan testified that he interviewed Reed and reviewed the reports from Dr. Reifman and those reports that Dr. Reifman examined. Based upon the foregoing, Dr. Bogan’s opinion was that Reed was legally insane when he shot Robertson because he could not conform his conduct to the requirements of the law. However, Dr. Bogan testified that he would reevaluate his opinion that Reed was not acting under a delusion if there was in fact an ongoing landlord/tenant dispute between Reed and Haynes; that Robertson had acted as a mediator in the dispute; that Reed’s window had been broken two weeks before the shooting; and that Reed thought Sproles broke the window.

In rebuttal, Dr. Gerson Kaplan testified for the State that Reed was legally sane when he shot Robertson. Dr. Kaplan testified that when he examined Reed on January 9 and 13, 1986, Reed was in “good shape”; that he examined the various reports; and that he observed that Reed had never been admitted to a mental hospital as an inpatient. Although Dr. Kaplan testified that Reed was presently suffering from dementia, he testified that the illness had not begun until after the shooting, because Reed was functioning at a normal level indicated by both the tasks he was performing around the time of the shooting and his behavior during the shooting.

Specifically, Dr. Kaplan testified that Reed did not appear to act randomly as a totally confused, totally demented person, that he rather appeared to act purposefully and goal-oriented because he singled out Sproles as his initial target; ran a snack shop and a decorating business; and managed an apartment building. Additionally, Dr. Kaplan testified that Reed showed a certain degree of impulse control because Reed tried to kick Sproles before using the gun; that Reed was neither completely disorganized nor completely demented, because after he shot Robertson, he knew where his van was and walked there calmly; that Reed had the ability to make an intelligent inquiry and respond appropriately because he obeyed the police officer’s commands; and that Reed gave a rational reason for the shooting within close proximity to the crime.

Also in rebuttal, Claude Haynes testified. He testified that Robertson introduced him to Reed; that he rented an apartment in Reed’s building; that he and Reed had a dispute about rent; that some unknown person broke Reed’s car windshield; and that Reed was able to do high quality painting and decorating.

Thereafter, the trial court convicted Reed of attempting to murder Robertson. The court specifically stated that it was not bound by the doctors’ or experts’ testimony; that it must determine whether, based upon all of the facts, Reed had met the burden of showing by a preponderance of the evidence that he was in fact insane at the time of the incident on May 14, 1985:

“[T]hat all of the doctors agreed that there was a degree of dementia, they refer to it as chronic, some suggest that it was severe, but we do have a mental disease or defect; that the question is, whether it was sufficient to overbear Reed’s will so that he could not conform his conduct to the requirements of the law or to appreciate the criminality of his conduct; that all of the conduct, in [the trial court’s] judgment supports the fact that Reed was goal oriented, purposeful, functional, and rational; and that while Reed may have lacked impulse and control, he may have been angered over that which occurred to him which caused in his judgment, monetary loss, they were not delusional, they were real factors which people each and every day consider.”

Subsequently, when the trial court denied post-trial motions, the trial judge noted that there was dementia but that “it did not rise to the point or give support to the defense of insanity, and because of the number of shots and the manner they were fired, the [trial court] found that Reed was responsible for his conduct, and it was intent [sic], in light of the factual circumstances, to take the life of the victim.”

Reed was sentenced to 40 years in the Illinois Department of Corrections. For the reasons set forth below, we affirm the judgment of the circuit court of Cook County.

Initially, Reed argues that the trial court abused its discretion by entering a guilty verdict, rather than entering a guilty but mentally ill verdict, contending that the manifest weight of the evidence established that he was mentally ill at the time of the shooting. We disagree. Section 115 — 3(c) of the Code of Criminal Procedure of 1963 states:

“When the defendant has asserted a defense of insanity, the court may find the defendant guilty but mentally ill if, after hearing all of the evidence, the court finds beyond a reasonable doubt that the defendant:
(1) is guilty of the offense charged; and
(2) was mentally ill at the time of the commission of the offense; and
(3) was not legally insane at the time of the commission of the offense.” (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 3(c).)

Section 6 — 4 of the Criminal Code of 1961 provides that “mental illness is not an affirmative defense, but an alternative plea or finding that may be accepted, under appropriate evidence, when the affirmative defense of insanity is raised or the plea of guilty but mentally ill is made.” (Ill. Rev. Stat. 1985, ch. 38, par. 6 — 4.) Mental illness is defined in section 6 — 2(d) of the Criminal Code of 1961 as “a substantial disorder of thought, mood, or behavior which afflicted a person at the time of the commission of the offense and which impaired that person’s judgment, but not to the extent that he is unable to appreciate the wrongfulness of his behavior or is unable to conform his conduct to the requirements of law.” (Ill. Rev. Stat. 1985, ch. 38, par. 6 — 2(c).) “A finding of guilty by a trier of fact will not be disturbed on appeal on the issue of mental illness absent facts indicating a defendant’s illness at the time he committed an offense and its decision should be affirmed unless the determination is so improbable or unsatisfactory as to raise a reasonable doubt as to the defendant’s sanity.” (People v. Wiley (1989), 185 Ill. App. 3d 1097, 1106, 541 N.E.2d 1345.) “In ascertaining whether a defendant was suffering from a mental illness at the time of the commission of an offense, the trier of fact must weigh the totality of the evidence and determine the credibility of both lay and expert witnesses.” People v. Wright (1987), 161 Ill. App. 3d 967, 979, 514 N.E.2d 817, appeal denied (1988), 118 Ill. 2d 551, 520 N.E.2d 392.

Although the trial judge found that Reed suffered from some degree of dementia, it is clear that the trial judge determined that Reed’s mental state did not rise to a level of mental illness that deprived him of all rational thought. (See Wiley, 185 Ill. App. 3d at 1106 (wherein defendant Wiley’s mental state did not rise to a level which deprived him of all rational thought, even though the trial court determined that he had certain personality defects which were enhanced by the use of alcohol and drugs).) In the case at bar, the trial court explicitly found that Reed was goal-oriented and rational. Dr. Kaplan’s opinion and other witnesses’ testimony amply support the trial court’s conclusion. The fact that Dr. Kaplan’s opinion contradicted defendant’s expert’s opinion does not entitle this court to overturn the trier of fact’s findings. Accordingly, the trial court’s determination will not be disturbed.

Next, Reed argues that the trial court erred in determining that he was sane when he shot Robertson, contending that the trial court improperly disregarded his experts’ testimony and improperly relied upon Dr. Kaplan’s testimony. We disagree. Sanity is a question of fact, and the trier of fact’s determination that a defendant was sane at the time of the offense will'not be reversed unless the decision by the trial court, in a bench trial, is so palpably erroneous as to suggest its basis was passion or prejudice. People v. Gindorf (1987), 159 Ill. App: 3d 647, 657, 512 N.E.2d 770 (citing People v. Silagy (1984), 101 Ill. 2d 147, 169, 461 N.E.2d 415, cert. denied (1984), 469 U.S. 873, 83 L. Ed. 2d 156, 105 S. Ct. 227), appeal denied (1987), 117 Ill. 2d 548, 517 N.E.2d 1090, cert. denied (1988), 486 U.S. 1011, 100 L. Ed. 2d 206, 108 S. Ct. 1743.

In order-to raise the affirmative' defense of insanity, Reed must have proved by a preponderance of the evidence that he was insane at the time of the offense, meaning that he lacked substantial capacity as a result of mental disease or mental defect to either: (1) apprecíate the criminality of his conduct; or (2) conform his conduct to the requirements of the law. (Ill. Rev. Stat. 1985, ch. 38, pars. 3— 2(b), 6 — 2(a), 6 — 2(e); Silagy, 101 Ill. 2d at 168.) We find that the trial judge acted within the scope of his discretion when he determined that Reed was sane when he shot Robertson after resolving all contradictions in the expert testimony (People v. Bouchard (1989), 180 Ill. App. 3d 26, 35, 535 N.E.2d 1001) and determining the witnesses’ credibility (People v. Gurga (1986), 150 Ill. App. 3d 158, 163-64, 501 N.E.2d 767, appeal denied (1987), 114 Ill. 2d 549, 508 N.E.2d 731). The trial judge, acting as the trier of fact, was allowed to accept a part of any expert’s testimony and reject other parts of the testimony. The trier of fact may accept one expert’s opinion over another, or reject all expert testimony and rely solely on lay testimony to conclude that the defendant was sane. (Bouchar, 180 Ill. App. 3d at 35.) Although the defense expert’s opinion was that Reed suffered from dementia, the trial court found that Reed could conform his conduct to the requirements of the law and appreciate the criminality of his conduct, and that his conduct was goal-oriented, purposeful, functional, and rational. Because there was sufficient testimony to support this conclusion, the trial court’s finding will not be disturbed.

Additionally, Reed argues that he was denied a fair trial because the State did not comply with Supreme Court Rule 412(d) (107 Ill. 2d R. 412(d)) and failed to notify him seven days before trial that Claude Haynes would testify in rebuttal. Even though the State did not comply with Supreme Court Rule 412(d), we find that Reed was not denied a fair trial because Haynes’ testimony was merely cumulative and, therefore, not prejudicial. Moreover, we reject Reed’s contention that he was denied a fair trial. In a bench trial, the trial court is presumed to have considered only competent evidence. (People v. Carter (1985), 135 Ill. App. 3d 403, 411, 481 N.E.2d 1012, citing People v. Perez (1983), 115 Ill. App. 3d 446, 450 N.E.2d 870.) As discussed above, the trial court’s finding that Reed was sane when he shot Robertson was based upon the evidence adduced at trial and the trial court’s analysis of the witnesses’ credibility.

Based upon the foregoing, Reed’s conviction and sentence are affirmed.

Affirmed.

MANNING, P.J., and CAMPBELL, J., concur.