author: JUSTICE BOWMAN

text:
    DOUGLAS CARTER, Plaintiff-Appellant, v. G C ELECTRONICS et al., Defendants-Appellees.
    Second District
    No. 2—91—0510
    Opinion filed August 18, 1992.
    Rehearing denied September 29, 1992.

      Robert A. Fredrickson, of Reno, Zahm, Folgate, Lindberg & Powell, of Rockford, for appellant.
    Roberta L. Holzwarth and Richard D. Gaines, both of Holmstrom & Kennedy, of Rockford, and William Van Hagey and David C. Bogan, both of Van Hagey & Bogan, Ltd., of Libertyville, for appellees.
   JUSTICE BOWMAN

delivered the opinion of the court:

Plaintiff, Douglas Carter, appeals from an order of the circuit court of Winnebago County which granted summary judgment in favor of defendant, Household Manufacturing, Inc. (Household). Plaintiff, a former employee of Household, brought this action alleging that defendant discharged him in retaliation for his refusal to participate in the misappropriation of company funds by an officer of the company. On appeal plaintiff asserts that his reply to defendant’s motion raised a genuine issue of material fact regarding defendant’s motive for discharging him, thereby precluding summary judgment.

Carter was employed as the division controller for G C Electronics (GC), a division of Household. He reported directly to Wayne Timpe, the president of GC. In September 1986 Timpe told Carter that Household had approved the settlement of a racial discrimination claim made by a former GC employee. The company had authorized $42,000 for the settlement, but the employee would not agree to anything less than $50,000. Timpe asked Carter to prepare a check for $50,000 for the employee and explained that he, Timpe, would personally reimburse the company for the $8,000 difference between the amount of the settlement check and the amount authorized by Household. Timpe further indicated that he wanted the additional $8,000 payment to be hidden from Household management and held until he repaid it. Carter responded that he could hold the payment until the end of the year but, upon closing the books, it would have to be shown as an employee receivable.

On January 6, 1987, Carter told Timpe the time had come to close the books and asked him what he wanted done with the $8,000 excess payment. Timpe told Carter to show it as an expense and indicated that he would get approval for it from Terence McCarthy, his superior at Household. Carter expensed the $8,000 in one or more categories and closed the books for 1986.

One week later, January 13, 1987, Timpe notified Carter that Household was merging GC with Thorsen Tool Company, another Household operating division. Pursuant to the merger, Carter’s job was being eliminated, and he was not going to be hired for the position of controller for the new, merged division of Household.

Another week later, January 21, 1987, Carter, along with Timpe, signed a letter addressed to Don Holmes, the controller of Household. The letter, which Carter called a “representation letter,” addressed the year-end financial statements and other accounting data submitted by GC to Household’s corporate office. The letter represented that the data were correct and accurate and had been handled properly and that there had been no irregularities involving management or employees which could have an effect on the financial statements.

In a letter dated February 3, 1987, Timpe confirmed to Carter that he was being terminated from GC. Timpe explained that he had decided to look for a new person to fill the controller position in the combined GC-Thorsen division because the job had additional requirements and he did not think Carter would be able to fulfill those requirements. Ultimately, a Household finance manager was named con-trailer of the new entity. The controller at Thorsen had also been eliminated from consideration for the job.

Sometime in February or March Carter called the Household legal department and determined that the amount of the settlement with the former GC employee was still recorded as $42,000, not $50,000. He then called Holmes, the corporate controller, and explained what had happened regarding the payment of the excess $8,000 to the former employee. Prior to this time no one knew about the overpayment except Timpe and Carter. Carter’s last day at GC was the first Friday in April 1987.

On April 26, 1988, Carter filed a one-count complaint alleging that Timpe discharged him in retaliation for his questioning of an illegal transaction. In its motion for summary judgment Household asserted, among other things, that Carter was terminated because his job was eliminated in the course of a corporate reorganization and he was not qualified for the new, more responsible position as controller of the reorganized entity. Following Carter’s response, the trial court essentially indicated that, based on the evidence which had been submitted in support of and in opposition to the motion, the plaintiff had not raised a genuine issue of material fact on the question of the motivation for his discharge. The court found that plaintiff was discharged because his job was abolished. Absent discharge in retaliation for something he did or refused to do, the plaintiff could not show the existence of the tort of retaliatory discharge. Accordingly, the court granted the motion for summary judgment. Plaintiff then brought this timely appeal.

Plaintiff posits that the trial court erred because it disregarded his evidence, from which it could be inferred that he was fired for refusing to participate in an illegal transaction. Plaintiff’s position cannot be sustained.

Summary judgment is proper when the pleadings, depositions, admissions, and affidavits on file demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005; Fuentes v. Lear Siegler, Inc. (1988), 174 Ill. App. 3d 864, 866.) The purpose of summary judgment is not to try an issue of fact but to determine whether a triable issue of fact exists. (Fuentes, 174 Ill. App. 3d at 866; Sloan v. Jasper County Community Unit School District No. 1 (1988), 167 Ill. App. 3d 867, 870.) On defendant’s motion for summary judgment a plaintiff is not required to establish his case as he would at trial, but he must present some factual basis that would arguably entitle him to a judgment. (Fuentes, 174 Ill. App. 3d at 866; Martin v. 1727 Corp. (1983), 120 Ill. App. 3d 733, 737.) These fundamental principles guide our inquiry.

A plaintiff states a valid claim for retaliatory discharge by alleging he was (1) discharged, (2) in retaliation for his activities, and (3) that the discharge violates a clear mandate of public policy. (Hinthom v. Roland’s of Bloomington, Inc. (1988), 119 Ill. 2d 526, 529; Russ v. Pension Consultants Co. (1989), 182 Ill. App. 3d 769, 774.) While in retaliatory discharge cases the issue of the employer’s motive for terminating an employee should not readily be the subject of summary judgment (Austin v. St. Joseph Hospital (1989), 187 Ill. App. 3d 891, 897; Fuentes, 174 Ill. App. 3d at 866-67; Hugo v. Tomaszewski (1987), 155 Ill. App. 3d 906, 909-10), summary relief has been granted where the plaintiff failed to present evidence sufficient to raise a genuine issue of material fact. In Fuentes v. Lear Siegler, Inc. (1988), 174 Ill. App. 3d 864, plaintiff claimed he was discharged in retaliation for pursuing his right to worker’s compensation. The undisputed facts showed that plaintiff was terminated after he admitted committing a major safety violation. They demonstrated, too, that defendant did not know of plaintiff’s intentions regarding worker’s compensation because plaintiff had neither taken steps to file a claim nor discussed such a claim with his employer prior to termination. Plaintiff’s only evidence, his affidavit statement that he was not aware of the safety rule, did not raise a material factual question as to defendant’s motive for discharging plaintiff. Consequently, this court affirmed summary judgment in favor of the employer. In Armstrong v. Freeman United Coal Mining Co. (1983), 112 Ill. App. 3d 1020, another worker’s compensation case, summary judgment for the employer was affirmed where the plaintiff was terminated as part of a general cutback in employment in his section, the plaintiff did not file his worker’s compensation claim until two months after he was terminated, and the plaintiff never told the employer that he was going to file a worker’s compensation action. Plaintiff’s only evidence consisted of affidavits of co-workers who espoused an unfounded and unexplained belief that the company had a policy of retaliatory discharge. This was not sufficient to raise a genuine question as to defendant’s motive. Plaintiff in this case, like the plaintiffs in Fuentes and Armstrong, has also failed to raise a genuine issue of material fact as to why he was fired.

Carter does not dispute that he did not contact corporate officials regarding the improper procedure until after he was terminated. It is not disputed either that, at the time Carter was terminated, Household was reorganizing its GC and Thorsen Tool divisions into one larger division; that Carter’s was one of two controller positions—one at GC and one at Thorsen—eliminated in the process; or that neither Carter nor the former Thorsen controller was offered the expanded controller job with the new company. The relevant evidence submitted by plaintiff goes to Timpe’s knowledge of plaintiff’s alleged refusal to cooperate.

Timpe testified at his deposition that Carter asked him about the $8,000 payment early in 1987, before Carter was told that he was going to be terminated. In his appellate brief, plaintiff focuses heavily on this January 6, 1987, incident. He characterizes the conversation as important in that (1) it showed Carter was following up on the transaction and “was requiring an explanation,” and (2) it “alerted Wayne Timpe that Carter was going to balk as to the transaction unless there was something that confirmed its legality.” However, upon close examination the discussion on January 6 is not persuasive that Timpe thereby became aware that he had something to fear from Carter.

During his own deposition Carter was questioned about the January 6 conversation by defendant’s attorney. The questions and Carter’s responses were as follows:

“Q. Let me ask you to give us the exact words of direction that Mr. Timpe gave you as best you can, understanding that that was two years ago.
* * *
A. I asked him, ‘What did you do with the $8,000?’ He looked at me and said, ‘Expense that off, and I’ll talk to Terrance [sic] about getting this okayed.’
Q. Did you say, T thought you were going to pay this out of your own pocket’ or words to that effect?
A. No, I did not. ***
* * *
Q. Did you express any misgivings about that course of conduct at that time?
A. Well, at the time he told me — he said he was going to get it approved by his boss. ***
Q. Did you ask to see any paperwork on this at that time?
A. No, I did not.
* * *
Q. Do you think there was anything -wrong with what you were doing at the time? ***
A. At the moment that was okay because he told me he was going to get it approved with his boss.”

Although he explained that he was not in a strong position to confront Timpe because he did not have the supporting documentation, Carter also indicated in his deposition that he had never threatened, confronted, or had harsh words with Timpe about the $8,000 hidden on the company books. Nor had Timpe ever threatened him when he inquired about it. Regarding his own reaction to Timpe’s directions on January 6, Carter answered:

“Q. *** The first week of January, 1987, you didn’t have a problem with the way the transaction was entered in the books of account; is that correct?
A. Right.
Q. And you didn’t tell Mr. Timpe that you had a problem with the way that transaction was entered into the books of account; is that right?
A. That’s right.
Q. Did you give him any other nonverbal or other clue that you had a problem with that transaction on the first week of January, 1987?
A. No.”

Carter’s own testimony about the January 6 conversation reveals nothing that would have made Timpe aware Carter was reluctant or had reservations or concerns about continuing to conceal the $8,000 payment. Indeed, Carter evidently was not concerned. Granted, he may not have been concerned because he was given the impression that Timpe planned to get Household’s authorization. Nevertheless, he testified to nothing which suggests that after January 6, 1987, Timpe knew Carter was not going to cooperate in the alleged illegal conduct.

That Timpe remained unaware of any reluctance on Carter’s part is especially compelling in light of the uncontested evidence that, both before and after he was discharged, Carter cooperated fully with Timpe. At Timpe’s request, Carter knowingly made out a settlement check for $8,000 more than Household had authorized. Carter agreed to and in fact did conceal the overpayment on the company books. As we discussed above, when the time came to account for the $8,000, Carter agreed to and in fact did relegate that amount to various expense accounts, even though he knew such a procedure had not been authorized by Household. It was Carter who then closed the books for 1986. Subsequently, even though he had been terminated, Carter signed the letter representing to Household that there were no irregularities in GC’s financial statements. At his deposition Carter testified regarding the overall situation as of the time he signed that letter:

“Q. Well, as of January 21, 1987, [Timpe] certainly didn’t have to worry about you as his controller turning him in, did he?
***
You did everything he asked you to do, didn’t you?
A. Yes; I did up to that point.”

We conclude that plaintiff’s evidence does not show that Timpe was aware plaintiff was going to refuse to participate in allegedly illegal conduct and does not support the inference that plaintiff was discharged in retaliation for such a refusal. The only reasonable inference to be drawn is that plaintiff was discharged because his job was eliminated. Consequently, there is no material factual question as to defendant’s motive for terminating plaintiff’s employment. Absent a discharge in retaliation for plaintiff’s refusal to participate in alleged illegal activities, one element of retaliatory discharge cannot be shown, and summary judgment was properly granted in favor of defendant.

On a final note we briefly address plaintiff’s related contention that he was not given the new controller’s position at GC-Thor-sen because of his refusal to cooperate with Timpe. We observe first of all that plaintiff cites no authority, and we are aware of none, which stands for the proposition that a retaliatory discharge cause of action will lie for failure to promote an employee. Nor does plaintiff point to any duty on the part of Household to promote him. A somewhat analogous situation was considered in LaPorte v. Jostens, Inc. (1991), 213 Ill. App. 3d 1089, where the plaintiff acknowledged that her employment was terminated because her injury made it impractical and unsafe for her to continue at her present position. Nevertheless, she maintained that defendant was obliged to transfer her to another available position rather than terminate her employment. The court first noted that in Illinois an employer is not obligated to retain an at-will employee who is medically unable to return to his assigned position. The court then stated that, without more, the mere fact that the plaintiff might have been able to perform other jobs for the employer was irrelevant to whether she was wrongfully discharged. Summary judgment for the employer was affirmed.

Similar to the plaintiff in LaPorte, plaintiff here appears to contend that, even though his current job was eliminated, he should have been given the new controller’s position. Like the LaPorte court, we think that, absent a duty on the part of the employer, the fact that Carter might have been able to do the new job is irrelevant to whether he was discharged for the wrong reasons and is ineffective in challenging defendant’s motion for summary judgment.

For the reasons stated above, the order of the circuit court of Winnebago County granting summary judgment in favor of defendant is affirmed.

Affirmed.

WOODWARD and GEIGER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
    F D L FOODS, INC., Plaintiff-Appellee, v. KOKESCH TRUCKING, INC., Defendant-Appellant (Farris L. Waterworth Brokerage, Inc., Defendant).
    Second District
    No. 2—91—1099
    Opinion filed August 19, 1992.

      Bruce A. Brown and Bruce Goldsmith, both of Goldsmith, Thelin, Schiller, Dickson & Brown, of Aurora (Margaret A. Gisch, of counsel), for appellant.
    Bauer & Heckmann, P.C., of Dubuque, Iowa, and Erickson & Seder-strom, of Omaha, Nebraska (James Heckmann, of counsel), for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, Kokesch Trucking, Inc. (Kokesch), appeals from the judgment of the circuit court of Ogle County finding it liable as a carrier to the shipper, plaintiff FDL Foods, Inc. (FDL), under the Carmack Amendment to the Interstate Commerce Act (Carmack Amendment) (49 U.S.C. §11707 (1988)) for economic loss sustained by FDL to a load of fresh pork trimmings carried from FDL in Rochelle, Illinois, to the buyer, Oscar Mayer & Company in Los Angeles, California. Mechanical difficulties with the truck were experienced en route, and the required 20-degree temperature in the refrigerated truck trailer was not maintained. The meat became “off-condition” (spoiled, essentially) and was rejected by the buyer when finally delivered. Kokesch denied it was the carrier claiming it only put the carrier, truck owner-operator Greg Dixson, in touch with defendant Farris L. Waterworth Brokerage, Inc. (Waterworth). Waterworth was the broker hired by FDL to arrange for carriage of its pork to Los Angeles. Waterworth, which did not appear for trial, was also found liable to FDL under the Carmack Amendment as the broker who arranged for transportation, but it is not a party to this appeal. The court granted Kokesch’s cross-claim for contribution against Wa-terworth and dismissed as moot Kokesch’s third-party claim for indemnity or contribution against Dixson, whom the parties were unable to find to serve with process.

Kokesch contends here that the evidence failed to establish that it was the carrier in law or fact and that it was prejudiced by the admission of inadmissible hearsay evidence.

Late in July 1986, FDL’s transportation manager for its Rochelle, Illinois, plant, Jack Bradshaw, contacted transportation broker Wa-terworth to arrange carriage for two loads of fresh pork from the Rochelle plant. Both loads were to be carried by McIntosh Truck Lines, but one of the McIntosh vehicles had a mechanical breakdown. Waterworth then sought another carrier and advised Bradshaw that he had arranged for Kokesch Trucking, Inc., to take the remaining load. Bradshaw testified that notes he took during his conversation with Waterworth showed Greg Dixson was an owner-operator and that Dixson’s insurance had expired.

For his own use and for the use of the Rochelle shipping department, Bradshaw prepared a shipping lineup sheet. Amongst the numerous other entries, the sheet showed the name of the truck line carrying the load (Kokesch was designated thereon as “Koke”), the number of the trailer into which the meat was to be loaded (59-R141), the estimated weight of the meat (40,000 pounds), and the temperature at which the meat must be kept (20°). It also indicated the pickup date (8/1/86), delivery date (8/5), and the purchaser (Oscar Mayer, Los Angeles). The load was not actually picked up until Saturday, August 2. The delay in departure was, at least in part, because there was not enough fresh pork to fill Oscar Mayer’s order.

The following Tuesday, August 5, Waterworth telephoned Bradshaw to advise that the truck carrying the load had broken down and that delivery would be delayed until the next day, August 6. Wa-terworth then called Bradshaw again to advise him that the truck repairs took longer than expected and the driver would not arrive with the load until late in the afternoon on Wednesday, August 1. The next contact Bradshaw had with Waterworth was on Thursday, August 8, when Waterworth called him. By that time, both Bradshaw and Wa-terworth had been informed that the meat was “off-condition” when it arrived at its destination and that it had been rejected by Oscar Mayer. Bradshaw never spoke with the drivers of the truck, Greg Dixson or Joel Jameson, and never had any contact with Kokesch. All arrangements were handled through FDD’s transportation broker, Waterworth.

The bill of lading prepared by FDL that was issued for its load of pork shows “Kokesch Trucking, Inc.,” on its face as the carrier. The “agent” line is signed by Greg Dixson. Bradshaw and FDL shipping supervisor Charles Hall testified about the security precautions taken at the FDL Rochelle plant to insure that only scheduled trucks enter the plant to be loaded. When a truck driver pulls up to the front gate of the plant, he identifies himself, along with the name of the common carrier, to the security officer there. The security officer checks the identity of the carrier against Bradshaw’s lineup sheet for loads to be shipped out of the plant. Upon confirming that the common carrier is indeed scheduled to pick up a load, the security officer weighs the truck on the plant’s scales at the front gate and directs the driver to a location inside the plant facility where his trailer can be washed out. If a motor carrier arrives that is not on Bradshaw’s lineup sheet, the security officer does not permit the truck to enter the plant property without authorization from Bradshaw or the plant shipping department.

From the wash area, the driver calls the shipping office, identifying himself, the name of the motor carrier, and his trailer number. The shipping department compares this information with a copy of the lineup sheet prepared by Bradshaw, tells the driver to set his refrigeration unit at the required temperature, and then “spots” the trailer by directing the driver to pull his trailer up to a numbered dock door. The name of the motor carrier, trailer number, and dock door are then recorded on a shipping lineup sheet for that particular load. The truck’s trailer number is painted on the inside surface near the rear of the trailer. Because the trailer pulls up to an enclosed, refrigerated loading dock, the person loading the trailer frequently would not see either the exterior of the trailer, the tractor, or the driver. The significance of the trailer number is that it is a final check for the FDL person loading that vehicle at the assigned dock door that the correct truck has pulled up to its assigned dock door. The trailer number “R141,” which was recorded on the lineup sheet prepared by Bradshaw from the information given to him by Wa-terworth, also appears on the shipping lineup sheet prepared by the shipping department when the truck is “spotted.” After being loaded, the truck is driven to the security gate at the plant entrance where the driver must sign and pick up the bill of lading in order to get out of the gate. Hall stated he did not see the exterior of the truck which picked up the FDL load, and he did not know whether the truck belonged to Greg Dixson or to Kokesch. Many truck lines do not have any words on the outside, only numbers such as trailer numbers or ICC numbers.

According to his evidence deposition testimony, Farris Wa-terworth’s first contact with Kokesch occurred several months prior to the shipment of the load of meat at issue. Waterworth was initially contacted by Tom and Pat Van Donselaar. The Van Donselaars represented themselves to be working for Kokesch and solicited Wa-terworth’s services as a broker for Kokesch. Waterworth advised the Van Donselaars that he required certain information from Kokesch, including, but not limited to, its ICC authority as a motor carrier and proof of insurance coverage. Some, but not all, of this requested documentation was forwarded to Waterworth by Kokesch vice-president Roxanne Kokesch with a cover letter dated February 20, 1986. Subsequently, Waterworth received a call from a woman named Janelle who reported to him that she worked for Kokesch and was calling him “looking for loads.” Because Waterworth had not yet had a chance to view Kokesch’s operation in person, as was his usual practice, and did not have all the requested information, he did not broker any loads to Kokesch at that time.

Janelle Wieland, formerly known as Janelle Reddemann, was hired on April 21 and employed as of April 28, 1986, in Kokesch’s dispatch department. She was classified at that time as a “broker.” Part of her wages were paid under a Job Partnership Training Act (JPTA) grant. According to JPTA grant documents prepared by Kokesch, 400 of Janelle’s 500 hours of on-the-job training were to be focused on sales. Her duties in sales were described on the documents as “contacting trucking firms and shippers and arranging freight loads from one location to another.”

On August 1, 1986, Janelle contacted Waterworth to seek available loads for Kokesch. At the time of the call, Waterworth had none. Later that day, the McIntosh vehicle broke down, making it unavailable to pick up the FDL load. Janelle and Waterworth had another telephone contact at which time Waterworth advised Janelle that there was a load available for Kokesch. Waterworth told Janelle of the requirements for the load, including the requirement that the equipment be Kokesch equipment and drivers (two) and that it be a 45-foot-long refrigerated trailer. Waterworth told Janelle that the drivers should be Kokesch drivers and should make their schedule so the delivery would be on the morning of August 5 and that they should report to him en route, after calling Kokesch, if they had any problems which delayed the load so that he could inform Bradshaw. At this time, Waterworth had Kokesch’s insurance and authority certificates in his file.

Janelle then later called Waterworth back and gave him the tractor and trailer numbers and the names of the drivers (Greg Dixson and Joel Jameson) and received instructions from Waterworth as to when and where the load of pork was to be picked up at FDL. Wa-terworth relayed this information to Bradshaw. Waterworth’s wife later that evening took a call from Greg Dixson, who was reporting in, and who said he was with another driver, Joel Jameson.

The load of pork was picked up by Greg Dixson at FDL on August 2. When the truck broke down en route to Los Angeles, Wa-terworth was advised of the breakdown by Joel Jameson. At some point during the haul, Waterworth was informed that Dixson had gone to San Antonio due to an emergency. Kokesch wired money to Jameson for the truck repairs; the money was in the nature of a “com-check” or “comp-check” which Greg Kokesch testified was an advance on monies owed Dixson for past hauls of ICC-exempt loads he had made for Kokesch. The first amount wired was insufficient to pay the repair bill, and, at Waterworth’s demand, Kokesch wired a second sum.

When the load of pork was rejected by Oscar Mayer in Los Angeles, FDL corporate transportation manager in Dubuque, Iowa, Joseph Spurling, received a phone call from Chuck Nelson, who Spurl-ing stated represented himself to be a vice-president of Kokesch Trucking. Nelson did not testify at trial. Nelson, who, as near as may be determined from the record, was advised by Waterworth that a Kokesch load had gone bad, asked Spurling what FDL wanted Nelson to do with the load of spoiled meat. After being advised by Spurling that it was FDL’s position that Kokesch now owned the meat, Nelson asked Spurting for help in salvaging the load. Spurting asked Nelson to acknowledge that Kokesch would stand the loss on the load. Nelson confirmed that Kokesch would stand behind the loss, and Spurting then advised Nelson that FDL would try to help salvage the meat and would be in contact with him at a later time. Greg Kokesch was out of town at the time these salvaging efforts were being undertaken; he testified at trial that Chuck Nelson was never a vice-president of Ko-kesch but that he was the broker who ran Kokesch’s San Antonio, Texas, office.

Spurting then contacted Dennis Bandy, who was in pork sales at FDL. Bandy is the one who had sold the load of pork to Oscar Mayer and who had already been in contact with Oscar Mayer about the condition of the load upon its arrival. Spurting told Bandy to sell the load for the highest price available and gave Bandy Nelson’s telephone number at Kokesch. Bandy telephoned Nelson and received Nelson’s approval to try to salvage the load.

The next morning, August 8, Nelson telephoned Bandy. Bandy informed him that he was not able to find anyone interested in buying the load. Nelson then asked Bandy to seek a bid from Tenderers. Bandy asked Nelson if Kokesch’s insurance adjusters needed to view the load of meat before it was sold to a rendering company, and Nelson advised Bandy that Kokesch was satisfied about the condition of the meat with the information then available to it. Bandy then received an offer to purchase the meat which he relayed to Nelson. Nelson advised Bandy to take the bid. Bandy again asked Nelson if Ko-kesch’s insurance adjuster needed to view the load before it was sold, and Nelson told him no. Thereafter, Bandy telephoned Waterworth to advise Waterworth of the bid on the meat. Waterworth told Bandy that the bid was acceptable to him and also told Bandy that it was not necessary for Waterworth’s insurance adjuster to view the load before it was sold. The load ultimately was sold to a company called Hoffman Brothers through broker Midland Foods for $13,060.95. The loss on the load, less shipping costs, was $25,692.96.

It was Greg Kokesch’s testimony at trial that when Farris Wa-terworth contacted Kokesch on August 1, he was told that Kokesch did not have any trucks available for the haul; FDL was not on Ko-kesch’s list of approved shippers which, Greg testified, is required before Kokesch will ship a load. Later, Greg Dixson, a truck owner-operator with whom Kokesch had done business in the past, called Kokesch looking for work. Dixson had recently delivered a load to Aurora and was in the area. Kokesch had no work for him, so it gave him a referral to Waterworth by giving him Waterworth’s phone number.

Greg Kokesch testified that Kokesch and Dixson had no ongoing contractual or employment relationship but, on occasion, Kokesch had brokered loads to Dixson that were exempt from ICC tariffs. Three such exempt loads were hauled by Dixson for Kokesch in the months preceding the instant events. Dixson did not possess ICC authority for nonexempt hauls like one performed for FDL; Greg Kokesch stated he did not know the contents of FDL’s load before he put Dix-son in touch with Waterworth. Greg Kokesch also testified that, prior to the instant contact with Waterworth, Kokesch had no knowledge of Waterworth. Further, Janelle Wieland was a trainee and had no authority to deal with brokers such as Waterworth but, rather, was authorized to deal with shippers and book loads for Kokesch. Kokesch specifically denied any employment relationship or short-term or long-term contractual relationship with Greg Dixson for the FDL haul or otherwise. When FDL and Waterworth subsequently sent bills to Ko-kesch for the value of the lost meat and for a brokerage fee, Kokesch immediately returned both bills indicating that Dixson, and not Ko-kesch, was the responsible party.

The central issue in this cause is whether the court’s judgment was against the manifest weight of the evidence. A subissue is whether the court erred in considering the deposition testimony of Farris Waterworth concerning his telephone conversations with Janelle Wieland. Although Kokesch claims the relevant facts are undisputed and, thus, this court may decide the issue as a matter of law, it is obvious that the role played by Kokesch in the underlying events is in acute contravention.

The standard of review to apply when a challenge is made to the trial court’s ruling following a bench trial is whether the trial court’s judgment is against the manifest weight of the evidence, that is, an opposite conclusion must be clearly evident before reversal is warranted. (Bruss v. Klein (1991), 210 Ill. App. 3d 72.) The trial court’s findings must be given great deference because the trial court has the opportunity to view and evaluate witnesses’ testimony and is, therefore, in the best position to evaluate their credibility. (In re Application of County Treasurer (1989), 131 Ill. 2d 541; DeLong v. Cabinet Wholesalers, Inc. (1990), 196 Ill. App. 3d 974.) For a judgment to be found to be against the manifest weight of the evidence, the appellant must present evidence that is so strong and convincing as to overcome completely the evidence and presumptions, if any, existing in appellee’s favor. Ruggio v. Ditkowsky (1986), 147 Ill. App. 3d 638.

The Carmack Amendment to the Interstate Commerce Act (Revised Interstate Commerce Act (49 U.S.C. §11707 (1988))) provides that any common carrier delivering property and providing transportation subject to the jurisdiction of the Interstate Commerce Commission (ICC) is liable to the person entitled to recover under the receipt or bill of lading. The liability imposed is for actual loss or injury to the property. (49 U.S.C. §11707(a)(l) (1988).) The liability imposed under the Carmack Amendment extends to brokers under the provisions of 49 U.S.C. §§ 10924(b), (e) (1988). A shipper establishes a prima facie case against the carrier under the Carmack Amendment when it shows delivery of the goods to the carrier in good condition, arrival of the goods in damaged condition, and the amount of damage. (S.C. Johnson & Son, Inc. v. Louisville & Nashville R.R. Co. (7th Cir. 1982), 695 F.2d 253; Thompson v. James G. McCarrick Co. (5th Cir. 1953), 205 F.2d 897.) The burden then shifts to the carrier to show the cause of the damage and that it is not liable therefor. (McCarrick, 205 F.2d at 900.) It is undisputed that the meat was delivered in good condition to the vehicle driven by Greg Dixson, that it arrived at Oscar Mayer in damaged condition, and that the loss on the meat sustained by FDL was $25,692.96. The crux of the dispute is whether Greg Dixson’s carriage of the meat was performed as an agent of Kokesch, as FDL argues, or as an independent owner-operator as Kokesch argues.

We believe the court’s judgment that Kokesch was the carrier is not against the manifest weight of the evidence and reversal is not warranted. Kokesch’s first argument, that it was not the carrier as a matter of law, is premised on its view of the evidence which, it asserts, shows that Waterworth arranged the shipment with Dixson for FDL based on a contact “facilitated” by Kokesch, that is, that Kokesch simply referred Dixson to Waterworth by giving him Waterworth’s number. However, there is no evidence whatever that Waterworth spoke to Dixson at any time prior to Dixson “reporting in” to pick up the load at FDL. On the other hand, there is substantial evidence that Waterworth arranged the FDL shipment with Kokesch’s employee, Janelle Wieland.

We find meritless Kokesch’s argument that the lack of evidence of the compensation to be paid it for making the haul negates a finding that it was the carrier since, by definition, a “motor common carrier” is “a person holding itself out to the general public to provide motor vehicle transportation for compensation over regular or irregular routes, or both.” (49 U.S.C. §10102(14) (1988).) This argument ignores the evidence that Kokesch had ICC authority as a broker as well as a carrier, or that Dixson may have been operating under a “trip-lease,” a one-time lease by an owner-operator to a company with ICC authority. Kokesch testified that “a broker lines up a load for a truck and moves a load for a shipper.” Although Kokesch denied it at trial, a reasonable inference can be drawn from the record that the “facilitating” done by Kokesch here was more than a referral. Rather, either Greg Dixson was hauling the load as Kokesch’s agent or Kokesch was acting as a secondary broker of the FDL load to Dixson. Kokesch cites no authority for the proposition that there must be evidence of the compensation to be paid to it before there can be a finding that it was the carrier.

FDL’s knowledge, by way of Waterworth, that Dixson was an owner-operator and that his insurance had not been renewed also does not preclude the court’s finding that Kokesch was liable. The expired insurance referred to may have been Dixson’s comprehensive insurance (fire, theft and collision) as opposed to the cargo and equipment liability insurance which carriers who seek to augment their equipment by means of owner-operator leases are required under ICC regulations to carry. (See George Transfer & Rigging Co. (1974), 208 NLRB 494, 1974 NLRB Dec. (CCH), par. 26,138.) An owner-operator who owns his or her own tractor and trailer can lease on to a company with ICC authority and then operate under that carrier’s authority and insurance. George Transfer & Rigging Co., 208 NLRB 494.

Kokesch contends that in order for it to be found to be the carrier for FDL, some relationship between it and Dixson must be shown, (United States v. Seaboard Coastline R.R. (E.D. Va. 1974), 384 F. Supp. 1103, rev’d on other grounds (4th Cir. 1975), 517 F.2d 881.) Kokesch argues this relationship is not shown where there is no evidence that the truck was a Kokesch truck (indicative of an employment relationship) or that there was a lessor-lessee relationship between it and Dixson. FDL argues in response that Dixson was acting as an agent of Kokesch for the carriage of this load of meat and that Kokesch is liable under the Carmack Amendment for FDL’s losses where the carriage by Dixson was arranged by Kokesch and was performed under Kokesch’s ICC certificate of authority.

Despite Kokesch’s argument to the contrary, there is evidence that Dixson was acting as Kokesch’s agent in hauling FDL’s load. Whether Dixson was driving his own truck or one of Kokesch’s, he nonetheless had to have represented himself as being with Kokesch in order to gain entry to the FDL premises based on the security procedures testified to at trial by FDL’s Charles Hall. Further, the bill of lading showed “Kokesch” as the carrier, and Dixson signed the bill as “agent” in order to exit FDL’s plant. Also, it is evident that when the truck broke down, the driver or drivers must have contacted Ko-kesch first seeking repair funds, since later, when Waterworth was asked to intercede, it was to request more funds since the first funds sent were insufficient. Upon Waterworth’s insistence, Kokesch then sent more money to Jameson.

Kokesch argues its advance of these funds does not negative Dix-son’s independent contractor status since it may advance up to 50% of the gross revenues of any load and later deduct that amount from the ultimate payment check for that load without the contractor losing its independent status. (See George Transfer & Rigging Co. (1974), 208 NLRB 494, 1974 NLRB Dec. (CCH), par. 26,138; National Freight, Inc. (1965), 154 NLRB 133.) The funds advanced here had nothing to do with this load, however; Kokesch testified the funds were an advance on the funds owed Dixson for three prior hauls of exempt loads which Kokesch had brokered to him. Greg Kokesch testified that, as of the time of trial, Dixson had been paid in full for the exempt loads he hauled for Kokesch. There was no evidence, however, that the funds advanced for the FDL load were deducted from the amount owed on Dixson’s prior exempt hauls, and it is unclear when or how or even why Kokesch paid Dixson that amount when Dixson could not be found to answer Kokesch’s complaint against him for indemnity or contribution.

Another indication that Dixson was acting as Kokesch’s agent is the well detailed role which Kokesch employee Chuck Nelson played in Kokesch’s acceptance of the responsibility for the loss and its initiative in engaging FDL’s assistance in salvaging what it could of the spoiled load of meat.

Kokesch’s argument that FDL must be presumed to have assumed the risk of loss where it was aware that Dixson’s insurance had expired is without merit. It is true that insurance is required by the Interstate Commerce Act before a carrier’s interstate transportation of goods will be authorized by the ICC. (49 U.S.C. §10927(a)(l) (1988).) FDL cannot be held to have assumed the risk of loss, however, where it is evident that FDL, having brokered the load through Waterworth, believed that Kokesch, or Dixson as its agent, was operating under Kokesch’s ICC authority and insurance. FDL did not have information in its files on Kokesch or Dixson because it was using Waterworth’s brokerage services, and Waterworth had Kokesch’s ICC authority and insurance certificates on file.

Because it was the most prejudicial evidence offered against it at trial, Kokesch argues the conversations between Waterworth and Janelle Wieland were inadmissible hearsay evidence where no foundation for her authority as Kokesch’s agent was established. Wieland did not testify at trial.

We see no error in the court’s admission of evidence of Janelle Wieland’s conversations with Farris Waterworth. The formula for determining whether Janelle Wieland’s conversations were inadmissible hearsay or properly admitted as admissions of her principal, Kokesch, is whether they occurred within the scope of the authority of the agent to speak or write for Kokesch. (McCormick, Evidence §267, at 640 (2d ed. 1972).)

“This formula makes it plain that the statements of an agent employed to give information may be received as the employer’s admissions, regardless of want of authority to act otherwise, and conversely that authority to act, e.g., the authority of a chauffeur to drive a car, would not carry with it automatically the authority to make statements to others describing what he was doing or had done.” McCormick, Evidence §267, at 640-41.

An agent’s authority may be actual or apparent, and actual authority may be either express or implied. (Illinois Armored Car Corp. v. Industrial Comm’n (1990), 205 Ill. App. 3d 993; Wadden v. Village of Woodridge (1990), 193 Ill. App. 3d 231.) An “apparent agent” is a person who, whether authorized or not, reasonably appears to third persons, because of acts of another, to be authorized to act as agent for such other person. (Mitchell Buick & Oldsmobile Sales, Inc. v. National Dealer Services, Inc. (1985), 138 Ill. App. 3d 574; A.H. Gruetzmacher & Co. v. Massey-Ferguson, Inc. (N.D. Ill. 1981), 512 F. Supp. 194.) The doctrine of apparent agency is based on the doctrine of equitable estoppel, and there is no practical difference between them. Northern Trust Co. v. St. Francis Hospital (1988), 168 Ill. App. 3d 270.

The existence of an agency relationship is a question of fact (Matthews Roofing Co. v. Community Bank & Trust Co. (1990), 194 Ill. App. 3d 200), and the party asserting the agency relationship has the burden of proving the agency’s existence by a preponderance of the evidence (In re Estate of Maslowski (1990), 204 Ill. App. 3d 379; A.H. Gruetzmacher & Co., 512 F. Supp. at 198). A prima facie case of agency can be created by inference or circumstantial evidence (Stefani v. Baird & Warner, Inc. (1987), 157 Ill. App. 3d 167; Lundberg v. Church Farm, Inc. (1986), 151 Ill. App. 3d 452), and a prima facie case of agency is established where there are facts showing one acting for another under circumstances implying knowledge of such acts by the supposed principal (People v. Parsons Co. (1984), 122 Ill. App. 3d 590; Mateyka v. Schroeder (1987), 152 Ill. App. 3d 854).

The Waterworth-Wieland conversations were admissible; they occurred within the scope of Janelle’s authority to speak for Kokesch. Janelle had contacted Waterworth prior to the instant cause seeking loads for Kokesch. Greg Kokesch’s testimony at trial that he never heard of Waterworth before and that Kokesch did not use the services of brokers is totally belied by Waterworth’s deposition testimony concerning the Van Donselaars’ contacts with him and the copy of Roxanne Kokesch’s February 1986 letter transmitting Kokesch’s ICC certificate of authority to Waterworth in which she states in part: “We are looking forward to doing business with you in the very near future.” The fact Waterworth stated he knew Janelle was working “under Dick Penk’s supervision” (Dick Penk, along with Greg and Roxanne Kokesch, operated Kokesch’s Minnesota office) only makes more apparent Janelle’s authority to make the instant load arrangements since Waterworth was entitled to presume from that knowledge that Dick Penk sanctioned Janelle’s calls to him.

Kokesch’s point is well taken that neither Janelle’s employment application nor Kokesch’s application for the JPTA grant for her on-the-job training could have enhanced Waterworth’s perception of Janelle’s apparent authority since he had no knowledge of those documents at the time the load arrangements were made. Those documents do, however, seriously damage Greg Kokesch’s credibility at trial where, taken together, they very clearly show that Janelle was more than an inexperienced trainee in the trucking business. Her application revealed she served as office manager and dispatcher for Reddemann Trucking. (Her name was Reddeman before it was Wieland.) Janelle had also been employed by another company, Ladlie Transportation, Inc. According to her application, she had grown up in the trucking industry, beginning work as a bookkeeper at the age of 12 and dispatching trucks starting at the age of 14. She was Reddemann’s office manager for five years and, at the time she applied to Kokesch, she was 29 years old. She had experience in maintaining logs, permits, licenses, insurance and payroll for employee drivers and owner/operators. She was hired into Kokesch’s dispatch department and was classified as a broker. Quite clearly, therefore, the scope of her employment involved dispatch and brokerage duties. As such, her conversations with Waterworth constituted admissions of Kokesch as her principal and were not inadmissible hearsay.

With regard to whether Waterworth’s deposition was admitted in evidence, it is clear that the court relied on it, in part, in making its decision. If Kokesch had any objections to the admission in evidence of the deposition as a whole or any objection to the court’s failure to rule specifically on the multitude of evidentiary objections which it raised during Waterworth’s deposition, Kokesch waived those objections by failing to raise them at trial or to secure a ruling on its objections prior to taking this appeal.

For the above reasons, the judgment of the circuit court of Ogle County is affirmed.

Affirmed.

McLAREN and DOYLE, JJ., concur.


author: JUSTICE McCUSKEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JUANITA J. DUNSWORTH, Defendant-Appellant.
    Third District
    No. 3—90—0644
    Opinion filed August 19, 1992.

      Mark D. Fisher, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Samuel Naylor VI, State’s Attorney, of Carthage (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court:

Juanita Dunsworth was convicted by a jury of involuntary manslaughter. Juanita was sentenced to three years’ imprisonment. She remains free on bond pending this appeal.

Juanita raises two issues on appeal. She claims that her constitutional right to a fair trial was denied because: (1) the trial court submitted improper and confusing jury instructions; and (2) the prosecutor made improper and prejudicial comments during closing argument.

We reverse and remand for a new trial because we find the prosecutor made improper and prejudicial comments during closing argument which denied Juanita her constitutional right to a fair and impartial trial.

On September 1, 1989, Daniel Orville Dunsworth (Dan) died as a result of a single abdominal stab wound inflicted by his ex-wife, Juanita Dunsworth. On September 2, 1989, she was charged with two counts of first-degree murder. Ill. Rev. Stat. 1989, ch. 38, pars. 9— l(a)(1), (a)(2).

The record shows that Dan and Juanita were married on Halloween, 1959, and divorced on June 5, 1984. Both had been previously married. Juanita was born on May 22, 1938, and is 5 feet 4 inches tall and weighs 110 pounds. She has been employed the past 14 years as a production worker at Sheller Globe, now Schlegel, in Keokuk, Iowa. Dan was age 53 and was employed at Griffin Wheel in Keokuk, Iowa. He stood 5 feet 11 inches tall and weighed 205 pounds.

At the time of his death, Dan lived with Barb Egley in a trailer home in Nauvoo. Barb had sold her trailer home in Hamilton and moved in with Dan two months before his death. At approximately the same time, Dan was making sexual overtures toward his ex-wife, Juanita. Dan and Juanita had maintained contact over the years following their divorce. They frequently socialized together and they talked regularly over the telephone. Juanita characterized their relationship by saying “they were just friends.” She testified that there was nothing sexual about the relationship. However, Juanita did admit she was receptive to Dan’s sexual advances which began during the summer of 1989. In fact, Juanita admitted she went to Dan’s trailer home in July and voluntarily participated in sexual foreplay until they were interrupted by a neighbor’s knock on the front door. Juanita admitted she would have consented to sexual intercourse with Dan at his trailer in July and also on September 1, 1989, the date of the stabbing.

Juanita and Dan had only one child from their prior marriage, Franz Dunsworth. On Labor Day weekend 1989, Dan and Franz planned to open a Hovercraft boat business to coincide with the beginning of the Nauvoo grape festival. Franz was now developing a closer relationship with his father. However, he still remained very close to his mother. Franz had told Juanita about his father’s relationship with Barb Egley, including the fact that Barb was living with Dan. Juanita, during the summer of 1989, had asked Dan about his relationship with Barb. Dan denied that Barb was living with him. However, Dan did admit that Barb had some clothes in his trailer and stayed there occasionally. Barb was unaware that Dan was making sexual advances toward Juanita as well as seeing her regularly during the summer of 1989.

Just a few days prior to Labor Day weekend 1989, Dan called Juanita and asked her if he could stop by her home on Friday morning. Juanita agreed. At 9:30 a.m. on Friday, September 1, Dan arrived at Juanita’s home located at 1325 Cemetery Road, Warsaw, Illinois.

Shortly thereafter, they both went into her bedroom to have consensual sexual intercourse. Juanita testified that during foreplay, Dan forced her head toward his penis. Juanita said she did not want to perform oral sex. She also was upset with Dan because of his relationship with Barb. Rather than perform fellatio, she bit Dan’s penis. Immediately thereafter, Dan either shoved or kicked Juanita off the bed and began screaming profanities at her. Juanita then retreated into the kitchen to phone Barb Egley. Juanita told Dan that she was going to tell Barb to come and get him and that Barb “could give him the blow jobs from now on.” The record shows that at 10:08 a.m., Juanita dialed a number one digit different from Dan’s. Juanita indicated she dialed the wrong number and no one answered. Dan followed Juanita into the kitchen and threatened to “tear her fucking head off.” Dan grabbed the phone from Juanita as she redialed, and he then depressed the switch-hook. Dan simultaneously shoved Juanita backwards. She then picked up a 14-inch knife and held it in front of her. Juanita testified that Dan accidentally ran into the knife when he lunged at her. Dan then fell against the kitchen wall. Juanita denied ever thrusting the knife at Dan or intentionally stabbing him. Thereafter, Dan went into the bedroom, put on his pants, picked up his shirt and boots, and left Juanita’s house. Dan left his glasses on her dresser. He fell and struck his head while leaving the home and collapsed in the front yard.

At 10:12 a.m., Juanita called the Warsaw emergency number for an ambulance. The call was received by Jan Blue, a dispatcher for the Hancock County sheriff’s office. Juanita said, “This is Juanita Dunsworth and I just stabbed my ex-husband. Can you send somebody to Warsaw fast.” She also told the dispatcher, “He came in here and tried to have me, force me to have sex with him and I — . He is dying, please help me.”

Verla Robinson, Juanita’s neighbor, testified that she observed Juanita crying and acting hysterical while Dan was lying in the yard next to Juanita. Verla saw Juanita hold Dan’s head on her lap and heard Juanita exclaim that she loved Dan. Verla also heard Dan repeatedly tell Juanita “don’t call Barb.” Verla testified Juanita told her that she had just stabbed Dan. Verla asked why. Juanita said that he wanted a blow job and she didn’t have to do those things. Juanita exclaimed, “Let her do it.”

Several emergency medical technicians (EMTs) were called by the defense to testify. They all corroborated Verla’s observation that Juanita was very upset. Also, the EMTs testified that Juanita repeatedly said to them, “Please help him.”

Juanita testified that she had acted in self-defense and never planned to kill Dan. Juanita said that she grabbed the knife for her own protection because she feared Dan was going to beat and injure her. She asserted that Dan was a violent and mean person. Juanita testified concerning many prior acts of violence where Dan previously had struck and injured both her and her children from another marriage.

Anita Howes, Juanita’s daughter, corroborated the testimony concerning Dan’s prior acts of violence. Also, many other family members and Juanita’s children testified specifically regarding Dan’s violent demeanor. Franz also corroborated the testimony and vividly recalled Dan’s acts of violence against him. Additionally, Anita recalled repeated incidents of sexual abuse that were inflicted upon her by Dan. However, we note it was clearly explained to the jury that Juanita was unaware of the alleged sexual abuse when she stabbed Dan.

Hancock County Sheriff Dick Yager interviewed Juanita in her home immediately after Dan was taken to the hospital by the EMTs. The sheriff testified that the interview began at 10:28 a.m. Verla Robinson was also present with Juanita during the questioning. Shortly thereafter, Anita came to the home and was present for the last portion of the sheriff’s interview. Juanita did not know during the questioning whether Dan was dead or alive.

Sheriff Yager testified that Juanita admitted she had bitten Dan’s penis and stabbed him with a knife. The sheriff stated that during his 45-minute interview with Juanita, she never once indicated she had acted in self-defense. Also, Juanita told Sheriff Yager that all of her sexual activities with Dan were voluntary. The sheriff also recalled that Juanita never claimed that Dan had forced her to have oral sex that morning. Furthermore, the sheriff testified Juanita admitted to him that she was mad as hell about Dan’s relationship with Barb. Juanita told the sheriff that she felt Dan was just using her. She admitted to the sheriff that something suddenly just came over her which caused her to bite Dan’s penis.

Gregory Gronewald, a Hancock County deputy sheriff, was present during much of Sheriff Yager’s interview with Juanita. Grone-wald’s testimony corroborated the sheriff’s version of Juanita’s admissions.

Dr. Richard Watson performed the autopsy on Dan. His autopsy revealed that there were superficial bite marks on Dan’s penis. Dr. Watson determined that Dan had died from a single stab wound to the abdomen which severed his aorta. The stab wound was 2V2 inches above Dan’s navel and traveled 5V2 inches inside his stomach. The knife not only severed Dan’s abdominal aorta, but it also glanced off his spine before lacerating the small intestine and the right kidney.

Sylvia Rackley, a friend of Juanita’s for the past five years, testified for the prosecution. Sylvia had rented a room at Juanita’s home and lived with her during 1985-86. Sylvia recalled that Dan and Juanita had a sexual relationship which lasted many years following their divorce. Sylvia said she observed, several years before the stabbing, a corn knife and meat cleaver in Juanita’s truck. Sylvia asked Juanita what the weapons were for. Juanita replied that “when the time is right, I will have it there and I will chop.” Sylvia said she asked Juanita that if she felt this way, why was she sleeping with Dan. Juanita replied, “This is how you get close to someone. This is how you stay close and have the opportunity, and then no one will believe I done it.”

Juanita vehemently denied ever making these statements to Sylvia. Juanita also denied ever telling anyone that she wanted to kill Dan.

The record confirms that on August 31, 1989, the day before the stabbing, Juanita and Sylvia had talked on the telephone. Sylvia said that Juanita was depressed as a result of (1) her relationship with Dan; (2) Dan’s relationship with Barb; and (3) Franz becoming closer to his father. Juanita told Sylvia, “Well, maybe I should just let them go.” And then she said, “Maybe I should go ahead and let her have the money. I am trying to let it go.” While Juanita admitted talking to Sylvia on August 31, 1989, she denied making any of these statements.

Dr. Noble Harrison, a clinical psychologist, testified for Juanita as an expert witness. Dr. Harrison opined that Juanita suffered from “battered woman syndrome.” Dr. Harrison testified that even though her marriage to Dan had ended in 1984, Juanita’s physical reaction at the time of the stabbing was an instinctive self-defense mechanism which resulted from Dan’s previous physical abuse and his violent nature. Dr. Harrison explained that the “battered woman syndrome” was a psychological phenomenon suffered by women who are physically and psychologically abused over an extended period of time by the dominant male in their lives.

Here, the “battered woman syndrome” was used by Juanita as a self-defense theory. The “battered woman syndrome” was used to explain to the jury that Dan’s stabbing was merely a logical reaction by Juanita as a result of Dan’s prior violence. Dr. Harrison asserted that the “battered woman syndrome” explained Juanita’s mental state and her behavior on September 1, 1989. Dr. Harrison claimed the “battered woman syndrome” caused Juanita to believe that she was in imminent danger of receiving a beating from Dan. He opined that Juanita’s stabbing of Dan was merely a justified self-defense reaction. Dr. Harrison said he formulated his expert opinion based on several lengthy interviews with Juanita.

The jury was given instructions for first-degree murder, second-degree murder, and involuntary manslaughter. The jury returned a guilty verdict of involuntary manslaughter. Juanita was sentenced to three years’ imprisonment.

Juanita’s first argument is that the trial court’s combination of jury instructions on the issues of “initial aggressor’s use of force” and “use of force in defense of a person” was misleading and confusing. We disagree.

The trial court gave Illinois Pattern Jury Instructions, Criminal, No. 24—25.09 (2d ed. 1981) (hereinafter IPI Criminal 2d), which was submitted by the prosecution on the issue of “initial aggressor’s use of force.” It stated:

“A person who initially provokes the use of force against herself is justified in the use of force only if the force used against her is so great that she reasonably believes she is in imminent danger of death or great bodily harm, and she has exhausted every reasonable means to escape the danger other than the use of force which is likely to cause death or great bodily harm to the other person.” (See IPI Criminal 2d No. 24—25.09.)

The trial court additionally gave Illinois Pattern Jury Instructions, Criminal, No. 24—25.06 (2d ed. 1981), which was tendered by the defense on the issue of “use of force in defense of a person.” It stated:

“A person is justified in the use of force when and to the extent that she reasonably believes that such conduct is necessary to defend herself against the imminent use of unlawful force.
However, a person is justified in the use of force which is intended or likely to cause death or great bodily harm only if she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to herself or another.” See IPI Criminal 2d No. 24—25.06.

The trial court ruled that based upon the evidence, the jury could reasonably find either Juanita or Dan to be the initial aggressor. Therefore, the trial court found that both of these instructions should be given to the jury. Based upon our review of the record, we agree that it was proper based on the evidence to give the jury both instructions.

From the evidence, the jury could easily have determined that Juanita was the initial aggressor because she bit Dan’s penis and threatened to call Barb Egley. On the other hand, the jury could also have concluded that Dan was the initial aggressor when he pushed, shoved, and threatened Juanita before she picked up the knife.

We find that case law clearly supports the use of both of these jury instructions when there is an evidentiary basis for the instructions. (People v. Townsend (1985), 136 Ill. App. 3d 385, 483 N.E.2d 340; People v. Crue (1977), 47 Ill. App. 3d 771, 362 N.E.2d 430.) The reason for giving both the “initial aggressor’s use of force” and “use of force in defense of a person” instructions is so the jury may decide between the conflicting evidence and apply the correct law. That is exactly what happened in this case. We hold that it is proper to give both these jury instructions when there is conflicting evidence concerning the issues of self-defense and whether the decedent or the defendant was the initial aggressor.

Juanita argues that the jury should have been provided with a third, non-IPI self-defense instruction. Juanita alleges that such an instruction would prevent the jury from erroneously reading together the two instructions on “initial aggressor’s use of force” and “use of force in defense of a person” and thereby avoid being confused. Juanita argues the third instruction would prevent the jury from thinking that Juanita had a duty to retreat whether or not she had provoked the decedent’s use of force. The proposed non-IPI instruction reads as follows:

“It was up to the jury to decide whether or not defendant was the initial aggressor; that if, the jurors felt she was the initial aggressor, they should apply the initial aggressor self-defense instruction in determining whether the prosecution had disproved lawful justification beyond a reasonable doubt; and that, if the jurors felt she was not the initial aggressor, they should apply the regular self-defense instruction in determining whether the prosecution had disproved lawful justification beyond a reasonable doubt.”

Juanita’s proposed non-IPI instruction has two problems. First, it does not clearly, concisely, or impartially state the law to any greater degree than the two IPI criminal instructions which were given by the trial court. Finally, and fatally, the proposed non-IPI instruction was never tendered in the trial court. Generally, no party may raise on appeal the trial court’s failure to give a jury instruction unless it was first tendered at trial. (People v. Huckstead (1982), 91 Ill. 2d 536, 440 N.E.2d 1248; People v. Baylor (1975), 25 Ill. App. 3d 1070, 324 N.E.2d 255.) Accordingly, we find that Juanita has waived this issue on appeal by failing to make both an objection at trial and to include this issue in a written post-trial motion. People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.

Additionally, we find that the two IPI instructions which were given by the trial court do adequately state the appropriate law. We find no need for any further jury instructions based on the evidence presented at trial.

Juanita’s major contention is that her constitutional right to a fair and impartial trial was denied because of improper prosecutorial comments made during closing argument. We agree.

Juanita specifically complains that the prosecutor, during his closing argument: (1) accused defense counsel and defense witnesses of conspiring to present a manufactured defense; (2) appealed improperly to the jurors’ emotions; (3) minimized the prosecution’s reasonable doubt burden; and (4) misstated the law on self-defense.

The standard of review to determine if a prosecutor’s comments during closing argument constitute reversible error is whether those remarks were such that without their having been made, the jury might have reached a different result. (People v. Reese (1984), 121 Ill. App. 3d 977, 460 N.E.2d 446.) In reviewing allegations of prosecutorial misconduct, the closing arguments of both the prosecution and defense must be examined in their entirety and the complained-of comments must be placed in the proper context. People v. Nemke (1970), 46 Ill. 2d 49, 263 N.E.2d 97.

Prosecutors are allowed great latitude in closing argument and may argue all fair and reasonable inferences that can be drawn from the evidence introduced at trial. (People v. Fort (1976), 44 Ill. App. 3d 62, 357 N.E.2d 1365.) However, the prosecutor should refrain from presenting improper and prejudicial argument. (People v. Harbold (1984), 124 Ill. App. 3d 363, 464 N.E.2d 734.) A conviction may be reversed if the prosecutor commits improper acts during closing arguments. People v. Wolf (1989), 178 Ill. App. 3d 1064, 534 N.E.2d 204.

Unless based upon some evidence, the prosecutor should not accuse defense counsel of the following: fabricating a defense (People v. Emerson (1983), 97 Ill. 2d 487, 455 N.E.2d 41); or using improper tactics to win the case (People v. Lavoy (1980), 91 Ill. App. 3d 639, 415 N.E.2d 487).

A prosecutor is prohibited from presenting argument which is calculated solely to inflame the passions and prejudices of the jury. (People v. Merideth (1987), 152 Ill. App. 3d 304, 503 N.E.2d 1132.) In determining whether a prosecutor’s closing remarks are prejudicial, reference is made to the content of the language used, its relation to the evidence, and the effect of the argument on the right of an accused to a fair and impartial trial. People v. Bragg (1984), 126 Ill. App. 3d 826, 467 N.E.2d 1004.

During closing argument, the prosecutor made the following comments which clearly accuse defense counsel of fabricating a defense and of attempting to free the defendant by manufactured testimony, and accuse the witnesses of being well coached. The remarks were as follows:

“[D]o you remember all of those defense witnesses that came up, about like trained seals, up to that witness stand, acted on queue, told about the same thing. They were cross examined later, but they were all certainly playing their parts.
* * *
*** There’s no evidence that she was threatened with great bodily harm. There’s no evidence that he said he was going to tear her head off either except she said it at this late date in the trial. She made that up for your trial here. If it had been true she would have told the Sheriff that. She would have gone into detail with the Sheriff, without coaching, without orchestration, without direction. ***
***
Deputy Gronewold was there. He was a witness to what she said. Concept of self defense had not been fed to her yet. ***
* * *
The defense tipped its hand early in this case. As I said, the opening statement told how the case would be orchestrated, who the players would be and I think that what you have got here was a play. You got acting, a blinding of fact and figures which in the paperback book trade they call historical romances. Soap operas.
Even the psychologist who testified, a professional witness who was paid big bucks, ***. He said he hadn’t known what purpose they were going to use his testimony for, so he didn’t construct his report until he found out what they wanted, then he made it fit so he could testify for the defense here.
*** [W]hy did he have to wait until he found out what they wanted him to say before he wrote up his report.
Now, the defendant here had nothing to lose. She has confessed to tailoring her testimony under oath to suit her daily purposes. ***
* * *
*** I would not lie under oath, trained attorney, I feel it’s wrong, but, really, if your mom was on trial for Murder, let’s be honest, wouldn’t you have a strong, strong temptation to say just about anything to get her off because you love your mom. * * *
* * *
*** [T]hen they all got together with a paid psychologist down at her house, and the witnesses that testified said they knew that the psychologist was going to use what they told the psychologist here in front of you. It’s all cooked up. They knew it would be like pouring it in a funnel and they would take it here and use it to help the defendant.
* * *
*** What he was, he was like a hired gun. He was like, what he told you was something like a Sunday supplement article might be about the Battered Wife Syndrome or something that came out in the Geraldo show.
If he was a real psychologist there would have been counseling and trying to help someone ***. If you’re not really going to counsel them, then, heck, who cares. You can make it up as you go along.
*** He had portfolios. He had travel. This doesn’t show-have gun will travel. *** He was a professional witness and he was good at what he did.
***
*** He just told what they thought would work for an express purpose in this trial, to fool you.
Did they succeed? Can you buy your way out? ***
* * *
Don’t forget when you grade the testimony of the witnesses, the interests, the bias, the prejudice they have, don’t forget Dr. Harrison was paid highly. ***
***
And he studied the works of a psychiatrist who studied astrology and the Chinese book of chances. I think you all know what that is. You get so many coins in your hand and throw them down. There’s so many heads and so many tails and you turn to a little page in the book and it will tell you what’s going to happen in the future. Talk about magical thinking, I don’t think that’s too sound a foundation for a psychologist at all.”

Whether each of these statements individually amounts to reversible error is not an issue which is necessary for us to reach. Rather, it is the cumulative effect of these remarks which is devastating. We believe that Juanita’s constitutional right to a fair and impartial trial was compromised by the cumulative effect of the prosecutor’s remarks. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, §13.

It is a basic principle of our criminal justice system that the prosecutor owes the defendant a duty of fairness. This duty extends throughout the trial and includes closing statements. Therefore, the prosecutor has an ethical obligation to refrain from presenting improper and prejudicial argument. People v. Witted (1979), 79 Ill. App. 3d 156, 398 N.E.2d 68; See I ABA Standards for Criminal Justice, The Prosecution Function §§3-5.6, 3-5.8 (2d ed. 1982).

The State asserts that Juanita has waived on appeal any argument that the prosecutor’s comments were improper because they were not objected to during trial. The State correctly points out that in order to properly preserve a matter for review, a trial objection and a written post-trial motion specifically articulating the issue sought to be raised are required. (Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124.) Juanita acknowledges this fact, but urges this court to address the issue trader the plain error exception to the waiver doctrine.

In order to overcome the waiver doctrine, the defendant must establish that the error now complained of on appeal was a plain error. (People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.) In other words, it must be plainly apparent from the record that an error substantially affecting the rights of the defendant occurred. (People v. Precup (1978), 73 Ill. 2d 7, 382 N.E.2d 227.) The purpose of the plain error exception to the waiver doctrine is to correct any serious injustices which have been done to a defendant so that she is not denied her right to a fair and impartial trial. People v. Underwood (1978), 72 Ill. 2d 124, 378 N.E.2d 513.

We find from the record that only one of the prosecutor’s comments we have cited was objected to at trial by Juanita’s counsel. However, whether or not the improper remarks were objected to at trial, a court of review will grant relief if the trial error is so prejudicial that real justice has been denied or the verdict of the jury may have resulted from the improper comments. Carlson, 79 Ill. 2d at 577, 404 N.E.2d at 239.

We believe that a grave injustice would occur if we accept the State’s waiver argument. We find from the record that it is plainly apparent that the cumulative effect of the prosecutor’s improper remarks denied Juanita her constitutional right to a fair and impartial trial. Therefore, we must, in order to preserve justice, invoke the plain error exception to the waiver doctrine.

We find the evidence in this case was closely balanced. We cannot say with a reasonable degree of certainty that the prosecutor’s improper remarks did not contribute to Juanita’s guilty verdict. Also, we cannot say that the jury could not have reached a contrary verdict had the improper remarks not been made. Therefore, the judgment of the trial court is reversed, and the cause is remanded for a new trial.

As a result of our holding, we find that it is unnecessary to address any of the remaining issues raised on appeal.

For the reasons indicated, the judgment of the circuit court of Hancock County is reversed and the cause is remanded for a new trial.

Reversed and remanded.

GORMAN and HAASE, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRIAN SCHACHT, Defendant-Appellant.
    Third District
    No. 3—91—0709
    Opinion filed August 21, 1992.

      James Hatcher, of Hatcher & Rose, of Peoria, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet, and Howard R. Wertz, of Lynwood (John X. Breslin, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court:

Brian Schacht was convicted by a jury of unlawful possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1989, ch. 56½, pars. 1401(a)(2), 1401.2(1)). Schacht was sentenced to 10 years’ imprisonment.

Schacht appeals, alleging that the trial court erred: (1) in denying his motion to quash arrest and suppress evidence; (2) by improperly restricting his cross-examination of a codefendant; and (3) in denying his request to reopen his case to call another -witness.

We find: (1) that the police had sufficient probable cause to stop Schacht’s automobile and arrest him; (2) that the trial court did not err when it limited Schacht’s inquiry into how long a codefendant might be imprisoned as a result of a plea agreement; and (3) that the trial court properly denied Schacht’s request to reopen his case. Accordingly, we affirm.

The following evidence was presented at Schacht’s suppression hearing.

During the period from May 8 through May 18, 1990, a confidential paid informant gave Will County Sheriff’s Lt. Paul Kaupas detailed information concerning three individuals who were involved in distributing narcotics. Lt. Kaupas had used this confidential source on 10 prior occasions and found that his information was always reliable and accurate. Lt. Kaupas was also aware that the informant had given other police agencies information which had been corroborated and led to convictions.

During his first conversation with the confidential source, Lt. Kaupas was told that a woman named Gail Buczyna and two men nicknamed “God” and “Animal” were distributing drugs in the Mokena area. Lt. Kaupas was a veteran deputy sheriff with 16 years’ experience. He was now operating in the sheriff’s Violent Crime and Drug Suppression Unit. In addition to the male suspects’ nicknames, the informant gave Lt. Kaupas a general description of the two men, including their height, weight, hair color, race, and complexion problems. The informant also said that he would telephone Lt. Kaupas as soon as he had more specific information.

Lt. Kaupas’s second conversation with the informant occurred on May 11, 1990. The informant said that Gail Buczyna lived in an apartment in Mokena in the general area of Schoolhouse Road and 191st. The informant also described the vehicle Buczyna drove. However, he indicated that her car was not being used for drug deliveries. The informant told Kaupas that the first names of the two men were Brian and Jewel. Also, he described a 1977 black Cutlass which was being used by the two men to distribute drugs. The informant gave Kaupas the license number of the Cutlass and information concerning their recent arrest in Crestwood.

Armed with this initial information, Lt. Kaupas began on May 11 to run the data through police computers. He also called the Crestwood police department to corroborate the recent arrest of the two men. On May 15, Lt. Kaupas obtained from the police computers and the Crestwood police the following information: the full names of Brian and Jewel, their dates of birth, additional information regarding their recent arrests, recent photographs of the two men, and their entire criminal histories.

Lt. Kaupas then called the informant on May 15 and indicated that he had corroborated the initial information. The informant told Kaupas that Schacht and Mitchell would be driving the black Cutlass in Mokena that evening. He said the car could be found either in the area of Schoolhouse Road and 191st or 116th Avenue and 195th. Lt. Kaupas began surveillance that evening. However, he did not see anything. After concluding the surveillance, Kaupas called the informant. The informant told Kaupas that he had just missed observing the two men driving the Cutlass.

The informant gave Lt. Kaupas another time, place, and date where Schacht and Mitchell could be found. This information was corroborated by Kaupas when he observed the 1977 Cutlass and the two men at the time and place indicated by the informant.

Prior to May 18, the informant gave Lt. Kaupas the exact apartment location for Gail Buczyna. He said her apartment was located at 10738 Greenwood in Mokena.

Early on May 18, 1990, the informant called Lt. Kaupas to tell him that Schacht and Mitchell would be distributing drugs that evening. The informant called later to say that Schacht and Mitchell would be leaving 116th Avenue and 195th at around 9 p.m. to go to Gail Buczyna’s apartment. The informant called again around 8 p.m. to confirm that Schacht and Mitchell would be arriving at Buczyna’s apartment sometime between 9 p.m. and 10 p.m. to cut cocaine and bag it for distribution.

Based upon all of this information, Lt. Kaupas gathered a contingent of police to begin surveillance of Buczyna’s apartment. At approximately 9 p.m. on May 18, the informant made his final call. The informant now told Kaupas that Schacht, Mitchell, and Buczyna would possibly be joined by another woman. Lt. Kaupas then assigned each police officer specific surveillance duties. Kaupas told the officers that they would be making an investigatory stop of the Cutlass shortly after the suspects left Buczyna’s apartment. Lt. Kaupas informed the officers that they should draw their guns during the investigatory stop because Schacht and Mitchell had been convicted of weapons charges. Also, Lt. Kaupas told the officers that Mitchell had a history of violent crimes.

The surveillance of Buczyna’s apartment began around 9 p.m. The police used binoculars to watch the apartment and the Cutlass. At approximately 10:30 p.m., the officers saw Schacht, Mitchell, Buczyna, and an unknown woman leave Buczyna’s apartment and enter the Cutlass. Schacht sat in the driver’s seat. Mitchell sat on the front passenger side. Both women sat in the back seat.

The police watched as Schacht began to drive the Cutlass away from the apartment. Schacht drove several hundred feet before the police moved in to stop the vehicle. Approximately five to seven marked and unmarked police vehicles, with their red lights flashing, drove in front of and behind Schacht’s vehicle. Lt. Kaupas had previously assigned himself to watch Mitchell’s passenger door. As Lt. Kaupas approached, he told Mitchell to stay in the car. Mitchell reacted by jumping out of the vehicle and running past Kaupas before he was apprehended. Schacht refused to stop the vehicle. Schacht put the vehicle in reverse and started to back up the car. Deputy Pete Piazza stopped Schacht’s car when he reached into the Cutlass and turned off the ignition.

Lt. Kaupas watched Mitchell when he exited the vehicle. He saw him drop on the ground a clear plastic bag containing snow seals. As Schacht was taken out of the car, Deputy Piazza saw in plain view a clear plastic ziploc bag located on the driver’s floor. Inside the ziploc bag were many small bags containing a white powdery substance. The lab tests later confirmed that the white powdery substance was cocaine.

The officers who stopped Schacht’s vehicle were wearing either Mokena police uniforms or hats and vests clearly marked with the word “police.” The marked cars were Mokena police vehicles.

Schacht admitted at the suppression hearing that he saw a car in front of him with a red flashing light. Schacht admitted not stopping and also admitted putting his car in reverse. He said, “And I thought I was in his way, so I kept trying to get out of his way.” Schacht finally admitted that the individuals who approached his vehicle said they were police, had their weapons drawn, and told everyone to freeze.

At the conclusion of the suppression hearing, the trial court denied Schacht’s motion. A reviewing court will not disturb a trial court’s ruling on a motion to suppress evidence unless that finding is manifestly erroneous. (People v. Tisler (1984), 103 Ill. 2d 226, 469 N.E.2d 147.) Each case must be decided and reviewed on its own individual facts. People v. Herron (1980), 89 Ill. App. 3d 1048, 412 N.E.2d 1365.

The law is clear that a police officer is authorized to approach an individual to investigate possible criminal behavior even when there is no probable cause to make an arrest. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) This is commonly referred to as a Terry stop. The mere fact that a police officer’s gun is drawn does not convert an investigatory stop into an arrest. People v. Jackson (1986), 145 Ill. App. 3d 789, 495 N.E.2d 1359; People v. Washington (1990), 205 Ill. App. 3d 452, 563 N.E.2d 517.

In order to justify stopping an individual, a police officer must be able to point to specific, articulable facts which, when taken together with the rational inferences from those facts, reasonably warrant the intrusion. (Terry, 392 U.S. at 21, 20 L. Ed. 2d at 906, 88 S. Ct. at 1880.) Terry contemplates a brief intrusion, as minimal as possible, to verify information or to ascertain whether criminal activities have in fact taken place.

We find that Lt. Kaupas had specific articulable facts from which he could reasonably initiate the investigatory stop of Schacht’s vehicle. Lt. Kaupas acted pursuant to accurate information he received from a reliable paid informant. Kaupas also acted upon verified information he received from police computers and the Crestwood police department. Finally, Lt. Kaupas was able to corroborate all of the informant’s information through actual surveillance. Schacht’s and Mitchell’s criminal histories indicated a clear probability that they would be armed. The police officers reasonably drew their weapons for their own individual safety when they stopped Schacht’s vehicle. Based upon all of the relevant facts, we find that the brief investigatory stop of Schacht’s vehicle was warranted.

The contraband seized following the investigatory stop was found in plain view and gave the police probable cause to arrest Schacht and Mitchell. Therefore, we find the trial court was correct in denying Schacht’s motion to suppress evidence and quash arrest.

Next, Schacht contends that the trial court committed reversible error by restricting his cross-examination of Gail Buczyna. Buczyna was a codefendant whose criminal trial had previously been severed from Schacht’s jury trial. She testified as a prosecution witness against Schacht. During the opening statements in Schacht’s trial, the prosecutor remarked as follows:

“Ladies and gentlemen of the jury, after the officers testify, I am going to produce a witness for you. And I am going to tell you a little bit about that witness. Her name is Gail Buczyna. She was in fact in the back seat of that vehicle. Miss Buczyna is one of the people who were involved in this case. And she is going to go to prison for her involvement in this case. But in return for a lighter sentence, she is going to testify for you.”

During direct examination, Buczyna admitted that she had entered into a plea agreement with the prosecutor. Buczyna testified that in exchange for her testimony against Schacht and her plea of guilty, she would receive a lenient sentence recommendation from the prosecution. The prosecutor confirmed the plea bargain with Buczyna by saying “we have some kind of arrangement made out regarding your testimony *** in return for testifying here today, you are going to plead guilty, and the People are going to recommend that you serve two years in the Illinois Department of Corrections.”

During cross-examination, the trial court refused to allow Schacht to inquire concerning the length of time Buczyna expected to serve in prison. Schacht wanted to show the jury that Buczyna would serve little, if any, actual time in prison due to early release provisions, good time, and the problems of overcrowding in the Department of Corrections. The court ruled that this inquiry was irrelevant. We agree.

Also, the trial court prohibited Schacht’s counsel from asking Buczyna about the specific felony classification for her crime. The trial court held that it was irrelevant whether it was a Class 1 or Class 2 felony. We agree. We note that the trial court did allow Schacht to cross-examine Buczyna regarding the fact that she was receiving a favorable recommendation from the prosecutor in exchange for her guilty plea and testimony against Schacht.

Generally, a defendant’s right to cross-examine and confront a witness concerning her bias, interest, motive, and prejudice should not be unduly restricted. (People v. Atteberry (1991), 213 Ill. App. 3d 851, 572 N.E.2d 434.) We certainly agree that Buczyna’s testimony could have been biased because of her desire to please the prosecutor. However, we also find that the trial court did allow Schacht proper cross-examination into her possible bias, interest, motive, and prejudice. Therefore, we hold that the trial court did not improperly limit Buczyna’s cross-examination.

Schacht next alleges he was denied a fair trial when the prosecutor during closing argument personally vouched for Buczyna’s credibility as a witness. During summation, the prosecutor stated:

“There were no lies pointed out, no motivation to lie, *** she told you the truth. *** / believe she told you the truth. *** Ladies and gentlemen: they (defense) want you to think that she has gotten off scot free. She hasn’t. The girl is going to prison, because she was involved.” (Emphasis added.)

We note that Schacht failed to raise this issue by making a timely objection at trial. Also, Schacht failed to include this claim of error in his post-trial motion. Therefore, we find that this issue has been waived for purposes of appeal. People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.

Finally, Schacht argues that the trial court erred by not allowing him to reopen his case after the trial court found Shannon McDuffie, a codefendant, not guilty. Shannon McDuffie had waived her right to a jury trial. She was being tried simultaneously in a bench trial during Schacht’s jury trial. The trial court heard McDuffie’s final argument after Schacht rested his case. The trial court then found McDuffie not guilty before the jury heard closing arguments in Schacht’s trial. After McDuffie was found not guilty, Schacht sought to reopen his case and call McDuffie as a witness.

Generally, the defendant bears the burden of showing a sufficient reason for his request to reopen the evidence. (People v. Moore (1989), 189 Ill. App. 3d 957, 546 N.E.2d 232.) The decision to reopen a case and allow new evidence is within the sound discretion of the trial court. (People v. Marek (1980), 92 Ill. App. 3d 746, 415 N.E.2d 1230.) The trial court ruled that Schacht was attempting to call Mc-Duffie as a defense witness solely to take advantage of the fact she had been acquitted. We agree. To allow this trial tactic would quite possibly encourage perjury. We note that prior to resting his case, Schacht never requested calling McDuffie as a witness. Therefore, we find that the trial court did not abuse its discretion when it denied Schacht’s request to reopen his case.

For the reasons indicated, the judgment of the circuit court of Will County is affirmed.

Affirmed.

SLATER and STOUDER, JJ., concur.