author: PRESIDING JUSTICE LaPORTA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL COOK, Defendant-Appellant.
    First District (6th Division)
    No. 1-86-1358
    Opinion filed July 6, 1990.

      William H. Hall, Jr., of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and David S. Meyerson, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

Following a jury trial, defendant, Michael Cook, was convicted of murder (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(a)(1)) and attempted armed robbery (Ill. Rev. Stat. 1983, ch. 38, pars. 8 — 4, 18 — 2) and was sentenced to concurrent prison terms of 25 and 10 years, respectively. On appeal, defendant contends that (1) the trial court erred in denying his pretrial motion to suppress evidence, (2) his sentences were based upon improper factors, (3) his sentences were excessive, and (4) he was deprived of a fair trial because comments made by the prosecutor during closing argument were improper.

Defendant was charged with three counts of murder, one count of armed violence, and one count of attempted armed robbery in connection with the shooting death of 55-year-old Bernice Tyler. Fourteen-year-old Patrick Williams was also implicated in the incident. Williams pleaded guilty to murder and attempted armed robbery, was adjudicated delinquent in juvenile court, and served a term of 21k years in a youth center for the Illinois Department of Corrections, Juvenile Division.

The evidence presented by the State indicated that at approximately 7 p.m. on Friday, February 11, 1983, 17-year-old defendant and 14-year-old Williams were at Rossi’s game room at Polk and Pulaski streets in Chicago, Illinois. The two young men were friends from the neighborhood, and defendant asked Williams whether he knew where they could get a gun to make some money. Williams agreed to meet defendant on the following Sunday at the Busy Bee store located near Arthington and Pulaski streets in Chicago, Illinois.

At about 9 a.m. on Sunday, February 13, 1983, Williams, without permission, went into his uncle’s bedroom closet and took a black .25 caliber automatic handgun out of a coat pocket. Later that morning, Williams went to meet defendant at the Busy Bee store. Samuel Norris, John Rankins, and defendant were already there when Williams arrived. While in the store, Williams pulled defendant aside and showed him the gun, which was in a pocket of the quilted ski vest that Williams was wearing. Williams subsequently pointed the gun at Norris and told him that it was a stick up, but then indicated that he was only playing.

At about that time, the victim, Bernice Tyler, was walking south on Pulaski past the Busy Bee store. Defendant told Williams that he had been watching the victim and that she had a lot of money. Defendant then told Williams to hold the gun because he was a juvenile, and if the police picked him up, he would just go to the Audy home. Defendant was to act as a lookout for the police. Williams left the store with defendant, and together they followed Tyler for about a minute. Tyler was carrying two bags of groceries and a purse. Williams continued to walk behind Tyler, and defendant crossed the street. When Tyler neared a viaduct, Williams walked in front of her, pointed the gun at her, and demanded her purse. Tyler stated that she had no money, but Williams again demanded her purse. Tyler repeated that she had no money and pulled out a pocket knife which she swung at Williams. Williams jumped back, and Tyler grabbed the gun from his hand, but Williams grabbed it back and shot Tyler. She fell to the ground, and Williams and defendant began running together west and then north. Defendant told Williams that he was going home, and Williams ran into an alley where he threw the gun between two garages and hid his ski vest under some boards. Williams hid under a porch for approximately 40 minutes. He then began walking toward his uncle’s house. While he was walking, his sister and brother-in-law saw him and told him that the police were looking -for him. Williams got into their car, and they dropped him off at his house.

Thurmon McBride was at a junkyard at 921 South Pulaski at the time of the shooting. He heard what sounded like a car backfiring and then saw two people running west and then north. When McBride saw Tyler lying on the ground by the viaduct, he telephoned the police. Chicago police officer Robert Duewerth received a radio message at approximately 1 p.m. .that a woman had been shot in the area of Arthington and Pulaski and that the suspects had been seen crossing Pulaski and running west down Taylor Street. When he arrived at the scene, Duewerth found Tyler lying on the ground on the east side of Pulaski and observed a bag of groceries, a purse, and a pocket knife on the ground near her. McBride told Duewerth that he had seen two young men running north and west from the scene and described them as two black males, aged 15 to 18 years old. One of them was about 5 feet 10 inches tall, had a medium build, dark complexion, black hair, and was wearing a black leather coat and dark trousers. The other was about 5 feet 6 inches tall and of medium build and was wearing a light and dark blue quilted vest, a gray sweater underneath, and dark pants. Duewerth broadcast these descriptions along with the information that the two individuals were wanted for robbery and for a shooting. A .25 caliber spent shell casing was recovered from the area near Tyler’s body.

When police officer James Nowlin received the radio message that a woman had been shot in the area of Arthington and Pulaski and that two suspects were seen running west on Taylor Street, he proceeded to the alley on Polk Street and got out of his car. As he looked east on Polk, Nowlin saw the defendant come from behind two women and hug them. The defendant was dressed in a black leather jacket, dark blue sweater or shirt, and dark trousers, and Nowlin apprehended him because he fit the radio description of one of the offenders. Nowlin put defendant in the back seat of the squad car and took him to the scene of the shooting. McBride then identified defendant as one of the two men he had seen running after he heard the sound of the shot.

Police detective Thomas Lahm advised defendant of his Miranda rights, and defendant indicated that he understood those rights. Lahm did not perceive that defendant did not understand English or was of less than average intelligence. Lahm interviewed the defendant at the police station, and defendant initially denied involvement in the shooting but implicated Patrick Williams. Defendant directed Lahm to Williams’ house, but Williams was not home. They then drove around and looked for Williams in areas frequented by him. Lahm subsequently returned to Williams’ house, found him there, and arrested him in connection with the shooting of Tyler. Williams took Lahm to the alley in which he had thrown the gun and hidden his vest. After searching the area, the police recovered the vest, but not the gun. Upon returning to the police station, Lahm again advised defendant of his Miranda rights, and defendant indicated that Williams had a gun while he was in the store and had been talking about robbing people. Defendant stated that Williams asked him whether he would help him and that he and Williams left the store and started to walk south on Pulaski. Defendant crossed the street to the west side of Pulaski, and Williams confronted Tyler. Defendant said that after he heard a shot, he turned, saw Tyler fall, and then fled the area.

Thereafter, Assistant State’s Attorney Thomas Fecarotta again advised defendant of his Miranda rights and asked defendant whether he understood them. After defendant stated that he understood each of his rights, Fecarotta questioned him about his involvement in the shooting death of Tyler. Defendant did not appear to have any trouble understanding English, Fecarotta had no trouble understanding the defendant, and defendant never requested the services of an interpreter. At that time, defendant stated that he had agreed to participate with Williams in the robbery, and when they saw Tyler, he said that they could rob her and asked Williams whether he wanted to do it. Defendant stated further that he and Williams left the store together and walked behind Tyler. Thereafter, defendant crossed the street because he recognized Tyler and was afraid that she would recognize him. Defendant saw Williams confront Tyler and saw her swing a knife at him. He then saw Williams jump back and fire one shot at Tyler, and he saw Tyler fall to the ground. Defendant stated that he then walked across the street to the store, and Williams ran from the scene in the opposite direction.

After making his verbal statement, defendant agreed to have it recorded by a court reporter. Defendant was advised of his Miranda rights in the presence of the court reporter, and the statement was ultimately transcribed. Fecarotta then asked defendant to read the statement aloud. Defendant did so with no apparent difficulty. He then made a few minor changes, initialled each page, and signed the statement which was witnessed by Fecarotta and Lahm.

At trial, defendant denied any knowledge of or involvement in the shooting, stating that he left the store five minutes after Williams had and went home. Defendant also testified that he did not understand his Miranda warnings and so advised the police officers and the State’s Attorney. He stated further that he could not read very well, and although he initialed each page, he did not understand the written statement that he signed. Defendant also denied that he ever said he understood his Miranda warnings in the presence of a court reporter. Defendant’s mother testified that she tried unsuccessfully to visit her son while he was in custody on the day of the incident.

The stipulated testimony of Relia Jordan, a certified court reporter, indicated that defendant had previously testified at a bond reduction hearing that he was able to see his mother while he was in police custody on February 13,1983.

During rebuttal closing argument, the prosecutor made the following remarks:

“They are the ones that have gotten together and conspired and made up a conspiracy to convict, poor Michael — innocent, poor little Mr. Cook, because they all lied and Mr. Cook told the truth.
* * *
Then, they with their lawyer standing here, and sling mud at everybody.
* * *
They stand there and they throw mud at witnesses, everyone else is lying.
* * *
Patrick Williams that little vicious murderer, testified because he asked him to, because he is the one who got together with him, back three years ago and decided to do an armed robbery. The criminal pig, his witnesses, ladies and gentlemen, we don’t.”

The jury found defendant guilty of murder and of attempted armed robbery. Defendant filed a motion for a new trial which challenged only the propriety of the court’s response to a question from the jury during their deliberations.

In imposing sentence, the trial judge noted that defendant’s conduct caused Tyler’s death. The court also referred to Tyler’s age and to the fact that she had left a family. Defendant was sentenced to a 25-year term for murder and to a 10-year term for attempted armed robbery.

Defendant initially claims that the trial court erred in denying his motion to suppress evidence. Yet, defendant’s opening brief presents no facts, argument, or citations to relevant authorities in support of his position, asserting only that he has not yet received the transcript of the hearing on the motion to suppress. In addition, defendant has not filed a reply brief or sought leave to file a supplemental brief presenting argument or authority on this issue. Because defendant has not complied with Supreme Court Rule 341(e)(7) (107 Ill. 2d R. 341(e)(7)), we need not consider this issue. Thanopoulos v. Pickens (1980), 87 Ill. App. 3d 906, 409 N.E.2d 477.

We note, however, that even if defendant had properly presented this issue, examination of the motion to suppress and the record reveals that the trial court’s denial of the motion was proper.

In his motion to suppress, defendant first makes conclusory allegations that his statements to the police were obtained in violation of his privilege against self-incrimination and his right to counsel. He does not, however, present any facts or authority in support of these claims. Defendant asserts further that although he was in custody and had been charged, he did not understand the gravity of his custodial situation. Yet, the motion does not claim that defendant did not receive or understand his Miranda warnings.

Defendant’s motion to suppress alleges further that he is “slow and cannot read and does not understand and cannot understand basic articulable concepts in the English language unless spoken in ‘black English’ or spoken by persons with verbal facility in black English.” Again, the motion does not assert that defendant did not receive or understand his Miranda warnings and does not indicate that he requested or was refused the services of an interpreter (see Ill. Rev. Stat. 1983, ch. 38, par. 165 — 11). Subnormal mentality does not automatically make a statement involuntary as long as the accused is capable of understanding the meaning and effect of the statement. People v. Hester (1968), 39 Ill. 2d 489, 500, 237 N.E.2d 466, 474.

Examination of the transcript of defendant’s testimony at trial and at the earlier bond reduction hearing reflects that he was able to understand the questions put to him although they were not spoken in “black English” and that he was able to communicate effectively and to give clear and intelligible answers to the questions posed. Consequently, it does not appear that defendant’s statements to the police should have been suppressed based upon his mentality or alleged inability to understand the English language.

The credibility of the witnesses regarding the voluntariness of a statement is to be determined by the trial court, and that determination will not be overturned unless it is contrary to the manifest weight of the evidence. (People v. Weger (1962), 25 Ill. 2d 370, 374, 185 N.E.2d 183, 186; In re Bizzle (1976), 36 Ill. App. 3d 321, 325, 343 N.E.2d 633, 637.) After the hearing on defendant’s motion to suppress in the instant case, the trial court concluded that there was no reason to believe that defendant’s statements to the police were involuntary and, accordingly, denied the motion.

This conclusion is more than amply supported by the evidence in the record. Defendant’s testimony at trial that he did not understand his Miranda warnings and that he so advised the police officers and State’s Attorney was directly controverted by the testimony of Lahm and Fecarotta, who testified that defendant was advised of his Miranda rights on at least three different occasions during his interrogation and prior to signing the written statement. According to Lahm and Fecarotta, defendant stated that he understood each of his rights as they were read to him, and thereafter defendant voluntarily made verbal statements which were recorded by a court reporter who later transcribed her notes into a written statement. After reading the statement aloud, defendant made a few minor changes and then voluntarily signed the written statement and initialed each page. This testimony was corroborated by the stipulated testimony of Blanca Lara, the court reporter who recorded and transcribed defendant’s statements. Therefore, the trial court’s finding that defendant’s statements were voluntary and admissible was not against the manifest weight of the evidence.

Defendant’s motion also asserts that his mother was not permitted to be present during his custodial interrogation. Yet, this circumstance clearly does not amount to a violation of defendant’s constitutional rights because he was 17 years old at the time of the offense and was eligible to be tried as an adult (People v. Del Vecchio (1989), 129 Ill. 2d-265, 544 N.E.2d 312). Consequently, defendant was not entitled to have his mother present during the interrogation. Even where the accused is a juvenile, the failure to have a parent or guardian present during questioning does not necessarily render statements made at that time inadmissible. (People v. Steptore (1972), 51 Ill. 2d 208, 215, 281 N.E.2d 642, 645; People v. Zepeda (1970), 47 Ill. 2d 23, 28, 265 N.E.2d 647, 649; In re Bizzle, 36 Ill. App. 3d at 326, 343 N.E.2d at 638.) In addition, this claim was refuted by the introduction at trial of defendant’s prior testimony at a bond reduction hearing at which he stated that his mother was with him in the back seat of the squad car and was with him at the police station. See Hester, 39 Ill. 2d at 499, 237 N.E.2d at 473.

Finally, defendant’s motion to suppress asserts that he was deprived of effective assistance of counsel where his former attorney at the bond reduction hearing allowed him to testify and to be subjected to extensive cross-examination with respect to his possible defenses. The record reflects, however, that none of this evidence was admitted against defendant at trial. Consequently, this claim does not provide a basis to grant defendant a new trial.

Defendant next contends that his sentences were based upon improper factors because it was improper for the sentencing court to consider the death of the victim as an aggravating factor where the death was implicit in the offense. People v. Martin (1988), 119 Ill. 2d 453, 459-60, 519 N.E.2d 884, 887; People v. Saldivar (1986), 113 Ill. 2d 256, 267-68, 497 N.E.2d 1138, 1144; People v. Conover (1981), 84 Ill. 2d 400, 404, 419 N.E.2d 906, 908-09.

At the sentencing hearing, the trial judge stated, inter alia:

“The [cjourt has to take into consideration the other matters in aggravation and mitigation, which are set forth by the [statute, there is no question in the [cjourt’s mind that your conduct, although you were not the shooter, certainly caused serious physical harm, and in fact, death to an elderly person. ***
* * *
I recall in this case there was an innocent and elderly lady, a mother, a grandmother, *** and it is certainly unfair to her and to her family that she is dead, *** the evidence certainly points to the fact that you were as much involved, if not more so involved, than the juvenile.”

Contrary to defendant’s claim, we are not persuaded that these comments indicate that the trial judge considered improper factors in aggravation. Rather, we hold that the trial judge’s comments, when taken in their entirety, reflect the court’s finding that defendant was responsible for the shooting of Tyler and was as culpable as the juvenile co-offender whom he had solicited for the crime.

Murder is punishable by a term of not less than 20 and not more than 40 years’ imprisonment (Ill. Rev. Stat. 1983, ch. 38, pars. 9 — 1(a)(1), 1005 — 8—1(1)), and attempted armed robbery is punishable by a term of not less than four and not more than 15 years’ imprisonment (Ill. Rev. Stat. 1983, ch. 38, pars. 8 — 4(c)(2), 1005 — 8—1(4)). Defendant was sentenced to a term of 25 years for murder and a term of 10 years for attempted armed robbery. Thus, defendant’s sentences were well within the statutory limits.

Moreover, we find that defendant was not entitled to the minimum sentences where he had solicited a juvenile’s participation in the crime and had convinced the juvenile to carry the weapon in case they were apprehended by the police. Upon review of the entire record before us, we conclude that defendant’s sentences were not excessive and that the court relied on proper factors in imposing the sentences.

Defendant also asserts that his sentences were excessive and grossly disparate to the penalty imposed upon his juvenile co-offender. This argument is without merit.

Defendant, who was 17 years old at the time of the offense, received sentences of 25 years for murder and 10 years for attempted armed robbery. Fourteen-year-old Williams pleaded guilty to the charges against him and was adjudicated delinquent in juvenile court. Williams ultimately served 2lk years in a youth center for the Department of Corrections, Juvenile Division. Yet, it is inappropriate to compare the penalty imposed upon Williams to that received by defendant because the juvenile division under which Williams was adjudicated is separate and distinct from the adult system in which defendant was tried, convicted, and sentenced.

When determining whether commitment to the Department of Corrections is necessary, a juvenile court must consider many factors, including the best interests of the minor. (Ill. Rev. Stat. 1983, ch. 37, pars. 705 — 1, 705 — 2, 705 — 10.) Consequently, a juvenile court is never required to commit a minor to the Department of Corrections, and a minor may serve no time in juvenile detention, regardless of the offense committed.

A criminal court does not operate under similar constraints or guidelines when sentencing an adult offender. Rather, the court is required to impose a sentence within the range of appropriate penalties set forth by the legislature.

Consequently, there will almost certainly be a disparity between the penalty imposed upon a juvenile offender and that imposed upon an adult offender, even where they have committed the same offense. Despite the existence of such disparity, a criminal court is required to sentence an adult offender within the range of penalties set out by the legislature, and such sentence should not be set aside merely because a juvenile offender received a more lenient penalty. It must be noted that none of the authorities relied upon by defendant involved a juvenile offender or required that an adult offender’s sentence be vacated because it was excessive and disparate to the penalty imposed upon a juvenile offender.

Defendant asserts further that the severity of his sentences was not justified because he participated in the offense to a lesser extent than Williams. We find this argument to be unpersuasive. The trial court’s comments during sentencing clearly reflect that the court did not believe that defendant was less culpable than Williams. The court noted that defendant had solicited Williams to obtain the weapon, engaged Williams to commit the robbery, and directed him to carry the gun specifically because he was a juvenile and would receive a more lenient penalty if apprehended. Contrary to defendant’s claim, the trial court found that defendant’s participation in the offense was equal to or greater than that of Williams (cf. People v. Bennett (1980), 90 Ill. App. 3d 64, 412 N.E.2d 1001; People v. Hall (1973), 17 Ill. App. 3d 1, 307 N.E.2d 664), and defendant’s sentences will not be vacated on this basis.

Finally, defendant alleges that he was deprived of a fair trial because remarks made by the prosecutor during closing argument were improper.

Initially, it must be noted that defendant did not raise this issue in his motion for a new trial and objected to only some of the allegedly improper comments at trial. Absent plain error, failure to raise an issue at trial and in a post-trial motion constitutes waiver of the issue on appeal. (People v. Turner (1989), 128 Ill. 2d 540, 555, 539 N.E.2d 1196, 1202; People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1131-32, cert. denied (1988), 188 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 247.) The plain error exception will be applied only when the evidence is closely balanced or if the error is of such a magnitude that the accused is denied a fair and impartial trial. (Turner, 128 Ill. 2d at 555, 539 N.E.2d at 1202.) Plain error will not be found where, as here, the evidence against the defendant is overwhelming and the allegedly improper remarks did not deprive him of a fair trial. Consequently, defendant has waived this issue by failing to object at trial and by failing to include it in his motion for a new trial. Turner, 128 Ill. 2d 540, 539 N.E.2d 1196; Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124.

Even if defendant had properly preserved this issue for appeal, it does not appear that the remarks of the prosecutor warrant a new trial.

As the State points out in its brief, the remark “criminal pig” makes no sense in the context of the prosecutor’s other statements, and more likely appears to be a typographical error which should have read “the criminal ‘picks’ his witnesses, ladies and gentlemen, we don’t.” In addition, the prosecutor’s comments regarding defendant’s “mudslinging” were in response to defense counsel’s disparagement of the State’s witnesses. Specifically, defense counsel accused Williams and McBride of fabricating testimony. Thus, the prosecutor’s comments were intended to rebut these accusations by defense counsel.

Even where remarks are improper, they will not be considered reversible error unless they constitute a material factor in the defendant’s conviction or result in substantial prejudice to the accused. (People v. Terry (1984), 99 Ill. 2d 508, 517, 460 N.E.2d 746, 750; People v. Satchell (1981), 94 Ill. App. 3d 422, 428-29, 418 N.E.2d 1063, 1068; People v. Nodal (1980), 89 Ill. App. 3d 538, 541, 411 N.E.2d 1087, 1089-90.) Improper remarks may be considered harmless error if there is overwhelming evidence of defendant’s guilt. (People v. Franklin (1981), 93 Ill. App. 3d 986, 994, 418 N.E.2d 155, 160-61.) The evidence against defendant in the instant case was overwhelming, and it cannot be said that the prosecutor’s remarks resulted in substantial prejudice or constituted a material factor in his conviction. Accordingly, the prosecutor’s comments did not prejudice defendant or operate to deprive him of a fair trial.

For the foregoing reasons, the judgments of the circuit court of Cook County are affirmed.

Affirmed.

McNAMARA and RAKOWSKI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE RAKOWSKI

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN VALKO, Defendant-Appellant.
    First District (6th Division)
    No. 1-87-2855
    Opinion filed July 6, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Scott J. Frankel and James H. Reddy, Assistant Public Defenders, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Joseph Brent, and Tyra H. Taylor, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

Following a jury trial, defendant Steven Valko was found guilty of three counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(b)(1)) and three counts of intimidation (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 6). He was sentenced to concurrent terms of seven years on each count of aggravated criminal sexual assault and four years on each count of intimidation.

On appeal, he contends: (1) reversible error occurred when the complainant’s mother testified about details regarding the complaint which her son told her six months after the alleged offense; (2) reversible error occurred when the complainant’s mother testified that she believed her son when he told her about the alleged offense; (3) reversible error occurred when the State went beyond the evidence in closing and suggested why C. would not testify; and (4) that the State failed to prove defendant guilty beyond a reasonable doubt. We affirm in part and reverse in part.

The facts are these: Valko was convicted of aggravated criminal sexual assault on M., a nine-year-old boy, for three separate assaults: forcing M. to perform fellatio on him around Thanksgiving, 1984; forcing M. and M.’s 10-year-old uncle C. both to perform fellatio on him on New Year’s Eve, 1984-85; and attempting penal-anal penetration on M. during January 1985. Valko was also sentenced for intimidation based on threatening statements made in connection with these episodes. In addition to the acts for which Valko was convicted, M. testified about episodes involving three-way oral sex between him, Valko, and C.; digital penetration of M. by Valko; and a video-taping by Valko during which he had C. perform anal sex on M.

In the opening statement at trial, the prosecutor said that the boy C. would not testify because “[h]e and his parents have decided they do not want him to relive the events of those days.”

M.’s mother, the first witness, testified that she learned of the incidents on July 18, 1985. M. told her that he had been afraid to tell his mother sooner because she lived without a man in the house to protect her from being beaten up.

M. then recounted his story “in bits and pieces.” According to M.’s mother, the boy was shaking and crying as he talked. He said that the night after Thanksgiving he had stayed at Valko’s house and slept in the same bed with Valko and a boy named D. On that occasion, Valko grabbed M.’s head and forced him to have oral sex. According to M.’s mother, M. stated that he swallowed “the stuff that came out.” Over the New Year’s Eve holiday, M. stayed at Valko’s home again and Valko forced M. and C. to have oral sex with each other while Valko watched. On another occasion, M.’s mother testified, M. complained that Valko crawled on top of him and “tried to put his penis in my butt hole.” Finally, M.’s mother testified that her son told her about being forced to have anal sex in front of the video camera and an incident in the basement where Valko wanted M. and C. to have oral sex with him.

During M.’s mother’s testimony, the defense objected twice to the narrative form of her answers to State questions. The judge overruled these objections. The defense also objected once when she stated that Valko “grabbed” one of the boys involved by the arm on the grounds that she had not actually witnessed the act. The judge overruled this objection on the grounds that M’s mother was describing the act reported to her by M. The defense registered a continuing hearsay objection but did not object to the explicit detail used in M.’s mother’s testimony.

On cross-examination, the defense asked M.’s mother if her son ever lied to her and she said “yes.” On redirect, the State asked if her son had ever lied about anything as important as the matter before the court. When she said “no,” the prosecutor asked her if she believed her son in this matter. She said that she did.

M. testified that on Thanksgiving, 1984, he spent the night at Valko’s home. He, Valko, and the boy D. slept in the same bed with Valko in the middle. Other children were asleep elsewhere in the house and Valko’s wife was at work. During the night, Valko held M.’s head and forced him to have oral sex until “something splurted [sic] into my mouth. *** I spit it on the sheets.” M. also stated that he heard D. snoring while the sex act occurred.

The next incident described by M. occurred on New Year’s Eve, 1984-85. M. and C. went down to Valko’s basement to get party things. Valko came to the basement and told both boys to kneel on the couch. Valko had the boys take turns performing fellatio on him. Valko did not ejaculate, and when the boys got tired and quit after a few minutes, Valko yelled at them. Then all three went upstairs. That night Valko slept with C. and M. but did not demand further sex acts.

M. further testified that a third incident occurred sometime within the next month or so. Valko, C. and M. were in the attic and C. started to talk about triangles. Valko suggested that they form a human triangle on the bed, take off their underwear, and perform oral sex on each other. During this act, Valko asked the boys to switch places. When it was over, he told M. that “something would happen” to him and his mother if the boy told anyone about the sex acts.

M. reported a fourth episode after he and C. had taken a shower. Valko suggested that they make a movie with his video camera. He had C. perform anal sex on M. Valko told both boys to smile even though M. claimed the act hurt. According to M., Valko also asked him to perform anal sex on C. but he did not.

During the same month, M. and Valko were alone in the attic when Valko reached over to M. and “stuck his finger down my pants and in my butt.” Later that night C. and M. were trying to sleep in the attic. M. testified that “I do not know exactly what Steve was trying to do, but I think he was trying to stick his penis in my butt.” M. was wearing clothes at the time. He did not remember if Valko was wearing clothes. The prosecutor asked “can you describe what he did?” and M. replied “no.”

M. also testified, once again, that Valko told him “something would happen” to him and his mother if he told anyone about the sex acts. M. stated that he was told this “a couple” of times.

M. described all acts except the last one in detail, gave detailed descriptions of the surroundings, and maintained the same details through cross-examination. He also demonstrated the first three acts using anatomically correct dolls.

M.’s grandmother testified for the State and during her testimony was declared a hostile witness. She is the mother of both C. and M.’s mother. Her husband, C.W., is the father of C. and the uncle of Steve Valko. According to her testimony, she received a phone call from her daughter in July 1985, reporting that M. had been molested by Valko. Then M.’s grandmother and her husband spoke to Valko on the phone. M.’s grandmother reported that she accused Valko of having sex with M. She testified that Valko said “Let me talk. I’m sorry.” Then, “I’m sorry. Let me talk. Let me explain. Can I explain?” M.’s grandmother stated that she did not let Valko talk because she saw no reason to let Valko explain anything.

M’s grandmother testified further that the defendant never admitted his guilt to her, although he did ask for M.’s mother’s phone number so he could call and talk to her. M.’s grandmother also stated, however, that she told her daughter and police detective Raymond Krull that Valko had admitted guilt. Furthermore, she told Assistant State’s Attorney Kathy Quattrocchi that M. and C. were “telling the truth about what happened.”

M.’s mother was recalled as an impeachment witness. She testified that her mother had told her that Valko admitted the assaults and promised to make it up to her and her son.

C.W. (who is the husband of M.’s grandmother, the father of C., and uncle of Valko) testified as a hostile witness for the State. He described a brief conversation with Valko after M.’s mother called to tell about the alleged child molesting. C.W. testified that he called Valko and asked, “Steve, what’s this bull I hear with you, [C.], and [M.]?” According to C.W., Valko said, “Well, I’m sorry for anything I have done.” Then C.W. handed the phone to his wife.

Later, he started to testify that he had let his son decide whether to come to court or not. The judge sustained objections to a line of questions about why C. did not appear in court.

Police detective Raymond Krull testified that he talked to C.W. about the conversation between C.W. and Valko. Krull stated that C.W. told him he had asked Valko directly about having sex with M. and C., and Valko had admitted this.

Valko’s wife and others corroborated some of the details of M.’s testimony, including the physical descriptions of places where the acts allegedly occurred and the fact that the various children involved had stayed with Valko during the times in question. The boy D. testified that he slept with Valko and M. after Thanksgiving, but he was not aware of any sex acts performed during the night.

Defendant Valko testified on his own behalf. He denied performing any sexual acts with C. or M. He claimed that he had caught M. performing fellatio upon C., but he did not report this to either boy’s parents.

In closing, the State reviewed testimony of witnesses, including C.’s parents. The prosecutor stated that M.’s grandmother and C.W. seemed more concerned about protecting Valko than protecting M. or C. He suggested why C. had not testified:

“Maybe [C.] doesn’t want to come to Court ladies and gentlemen. Because maybe he feels sorry for this guy. Maybe he liked what this guy was doing to him and these parents don’t care as much about their grandson. I don’t know. I don’t know. I’ve never talked to [C.] ladies and gentlemen. I’ve never even seen [C.] because, you know, his parents wouldn’t let him come down here.”

At the end of this statement, the defense objected. The objection was overruled.

I

Valko argues that reversible error occurred.when M.’s mother testified in excessive detail about the complaint which M. made to her six months after the alleged offenses occurred. Valko argues that the statute which permits this hearsay evidence to corroborate a child’s testimony also strictly limits the detail allowed in the hearsay.

In order to preserve an issue for appeal, a defendant must both make a contemporaneous objection and include it in his post-trial motions. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124.) Since the defense did not make a timely objection to the detail in M.’s mother’s testimony at trial, the State argues that the issue is waived for appeal.

Under Supreme Court Rule 615(a) (107 Ill. 2d R. 615(a)), however, “[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” Courts may consider plain error “where the record clearly shows *** an alleged error affecting substantial rights.” (People v. Young (1989), 128 Ill. 2d 1, 46, 538 N.E.2d 461.) This rule serves the dual purposes of “correcting serious injustices” and preserving “the integrity and reputation of the judicial process.” (Young, 128 Ill. 2d at 46.) Therefore, the rule applies only “when the question of guilt is close and the evidence in question might have significantly affected the outcome of the case [citations], or where the error alleged is so substantial as to reflect on the fairness or impartiality of the trial regardless of how closely balanced the evidence is [citations].” People v. Sanders (1983), 99 Ill. 2d 262, 273, 457 N.E.2d 1241.

To apply the plain-error exception to the waiver rule, courts should first determine if the record plainly shows that an error affecting substantial rights was committed. (People v. Precup (1978), 73 Ill. 2d 7, 17, 382 N.E.2d 227.) This criterion is met in criminal cases when “the evidence is closely balanced or the error is of such magnitude that the commission thereof denies the accused a fair and impartial trial or sentencing hearing. [Citations].” Young, 128 Ill. 2d at 47.

Thus, a reviewing court must first examine the record to find the strengths and weaknesses of evidence against the defendant, because “if the evidence is close, there is a possibility that an innocent person may have been convicted due to some error which is obvious from the record, but not properly preserved.” People v. Carlson (1980), 79 Ill. 2d 564, 576, 402 N.E.2d 233.

Second, the court must look for “those errors of such magnitude that the commission thereof” precludes a fair trial. (Carlson, 79 Ill. 2d at 577.) Such errors occur, for example, when the jury instructions fail to distinguish between intent to kill and other intents which a defendant might have had (People v. Roberts (1979), 75 Ill. 2d 1, 14-15, 387 N.E.2d 331), when instructions fail to distinguish between elements for an insanity acquittal and a mental-illness conviction (People v. Fields (1988), 170 Ill. App. 3d 1, 9-10, 523 N.E.2d 1196), or when credibility is an issue and the defendant’s credibility is contrasted with the credibility and reputation of the State’s Attorney’s office (People v. Sexton (1987), 162 Ill. App. 3d 607, 615, 515 N.E.2d 1359).

We will consider the error here because, for one of the charges, the evidence is close and, therefore, Valko’s substantial rights may be involved.

The statute governing the admissibility of the testimony at issue in section 115 — 10(2) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 10(2)), which provides:

“In a prosecution for a sexual act perpetrated upon a child under the age of 13, *** the following evidence shall be admitted as an exception to the hearsay rule:
* **
(2) testimony by the person to whom the child complained that such complaint was made in order to corroborate the child’s testimony.”

This statute allows prosecutors to introduce hearsay testimony about the fact that the victim complained, but does not allow details of the victim’s complaint. (People v. Jackson (1987), 165 Ill. App. 3d 665, 682, 520 N.E.2d 640; People v. Salas (1985), 138 Ill. App. 3d 48, 54, 485 N.E.2d 596.) The testimony can only include enough detail “to effectively corroborate the fact that a complaint was made and identify the incident as the one before the court.” (People v. Branch (1987), 158 Ill. App. 3d 338, 341, 511 N.E.2d 872.) The testimony should not, however, include details about how the defendant seduced or coerced the victim or performed the sexual acts (see, e.g., Salas, 138 Ill. App. 3d at 51; Jackson, 165 Ill. App. 3d at 669-70) or the identity of the defendant (Jackson, 165 Ill. App. 3d at 680).

If a witness does testify about the victim’s complaint in impermissible detail, the issue to be determined is whether the detail constituted reversible error. Generally, “[t]he admission of unnecessary or impermissible detail, such as the identification of the defendant, will be deemed to be harmless when substantially corroborated by the testimony of the child victim or any other pertinent evidence and the child victim is present in court and available for cross-examination.” People v. Server (1986), 148 Ill. App. 3d 888, 900, 499 N.E.2d 1019; see, e.g., Branch, 158 Ill. App. 3d at 341 (the impermissible details were substantially corroborated by the testimony of the victim or by medical evidence); People v. Lindsey (1986), 148 Ill. App. 3d 751, 761, 499 N.E.2d 715 (facts were “strongly established by competent testimony” of the victim); In re A.M.C. (1986), 148 Ill. App. 3d 775, 782, 500 N.E.2d 104 (the victim had consistent demeanor and physical symptoms at the time of the complaint, testified in court with convincing detail about the acts, and demonstrated the acts with an anatomically correct doll).

Defendant relies on Salas, in which the court found the error was not harmless because there was no evidence corroborating the victim’s story except the improperly admitted details from the hearsay testimony. (Salas, 138 Ill. App. 3d at 54-55.) Valko contends that the trial court committed a Salas error and that the error is clearly prejudicial and, therefore, reversible. He argues that the only evidence against him was the testimony of M. The details recited by M.’s mother “improperly bolstered [M.’s] improbable claim.”

For the two counts involving oral sex, the facts make this case distinguishable from Salas. M. offered detailed testimony about three oral acts, then demonstrated them with anatomically correct dolls, and maintained his story with details through cross-examination. Additionally, the testimony of other people corroborated some facts like M.’s presence in the Valko home and his description of the basement and attic there. Finally, when C.W. phoned defendant and asked him about the “bull” between him, C. and M., defendant said he was “sorry for anything I have done.” And after C.W. handed the phone to his wife, Valko kept muttering that he was “sorry” and he could “explain.”

For the count of anal penetration, testimony in this case does resemble the error found in Salas. According to M.’s mother, M. told her that Valko “tried to put his penis in my butt hole.” But when M. testified, he stated that he did “not know exactly what Steve was trying to do, but I think he was trying to stick his penis in my butt.” When asked if Valko was wearing clothes, M. could not remember. When M. was asked if he could “describe what [Valko] did,” M. replied “no.”

For these reasons, we hold that the admission of details about M.’s comjplaint in his mother’s testimony was error. The admission of details about oral sex acts was harmless error, but the admission of testimony about anal sex was not harmless.

II

Valko claims next that reversible error occurred when M.’s mother testified that she believed her son M. when he told her about the alleged offenses.

The credibility of witnesses is a matter for the trier of fact to decide and, therefore, the prosecutor may not tell the jury his or her opinion of the veracity of witnesses. (People v. Townsend (1985), 136 Ill. App. 3d 385, 395, 483 N.E.2d 340.) If prosecutors do state an opinion about a witness’ credibility, however, any resulting prejudice can be offset by instructions telling the jury that they alone must judge the credibility of witnesses. Townsend, 136 Ill. App. 3d at 394-95.

Valko cites Townsend and argues, a fortiori, that it was improper for the State to ask M.’s mother whether she believed M. when he told her about being molested.

In this case, the defense cross-examined M.’s mother and asked her if M. ever lied. Thus, the State argues, the defense invited State questions on redirect about M.’s tendency to lie or tell the truth (relying on Alton v. Kitt (1982), 103 Ill. App. 3d 387, 399, 431 N.E.2d 417). The State then asked if M. had ever lied about anything as important as the child molesting charges and whether she believed him. His mother told the court that she believed that M. told the truth about important matters and had told the truth in this instance as well.

It appears here that defendant did open the door to questions about whether or not M. had a tendency to lie. The defense did not, however, invite specific questions about whether M.’s mother believed her son on the particular occasion when he told her Valko had molested him. Nonetheless, the trial court offset any prejudice resulting from this error by issuing instructions informing the jurors that they were the sole judges of the believability of the witnesses.

Therefore, the error was harmless.

III

Valko also contends that reversible error occurred because in closing the State made suggestions about why C. had not testified even though the prosecution never presented evidence on that point. On appeal, Valko contends that the State in effect argued nonfacts to the jury. Furthermore, these nonfacts would tend to support conviction.

Defendant waived the issue of the prosecutor’s comments because he failed to include the issue in his motion for a new trial. Enoch, 122 Ill. 2d at 186.

However, of the three sexual acts for which Valko was convicted, C. could have testified on only one. On that one charge, M. offered clear and convincing testimony during both direct and cross-examination. Furthermore, he demonstrated the act with anatomically correct dolls. Finally, the testimony of other people established the fact that M. and C. were with Valko at the time the alleged act occurred.

Since the evidence for this act is not close, we find no reason to examine the issue waived by defendant.

IV

Finally, Valko claims that the State failed to prove him guilty of criminal sexual assault beyond a reasonable doubt.

When an appeals court reviews the sufficiency of evidence, “ ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Young, 128 Ill. 2d at 49, quoting Jackson v. Virginia (1979), 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.) Then, “ ‘[ojnce a defendant has been found guilty of the crime charged, the fact finder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.’ ” (Emphasis in original.) (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, quoting Jackson, 443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789.) Further, discrepancies in the testimony of witnesses go to the issue of credibility, which must be judged by the trier of fact. People v. Thomas (1981), 96 Ill. App. 3d 443, 450, 421 N.E.2d 357.

Concerning the two counts of aggravated criminal sexual assault based on acts of oral sex, the record here shows clear, detailed, and consistent testimony by the victim both on direct and cross-examination. M. described how he spit out Valko’s semen after the Thanksgiving incident, how Valko got angry when he failed to ejaculate on New Year’s Eve, and how M. and C. and Valko formed a triangle for oral sex sometime in January. The victim supported his testimony by demonstrations with anatomically correct dolls. Other witnesses, including defendant’s wife and relatives of both victim and defendant, corroborated M.’s descriptions of the rooms where the acts of abuse occurred and the fact that M. was staying in Valko’s home at those times.

Concerning the single count of aggravated criminal sexual assault based on an act of penal penetration, M. testified that he did “not know exactly” what Valko was trying to do, but he thought Valko “was trying to stick his penis in my butt.” M. could not remember if Valko was wearing clothes at the time. M. himself was clothed at the time. When M. was asked if he could “describe what [Valko] did,” he said “no.”

Concerning the three counts of intimidation, M. testified that Valko threatened him, saying that “something would happen” to M. and his mother if M. told anyone about the sex acts. M. testified that this threat occurred “a couple” of times.

These facts allow a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find Valko guilty of the two counts of aggravated criminal sexual assault based on acts of oral sex. The facts do not, however, support a guilty finding for the act of penal-anal penetration.

For these reasons, we affirm the judgment of the circuit court of Cook County regarding defendant’s convictions for three counts of intimidation and two counts of aggravated criminal sexual assault and reverse regarding the conviction for one count of aggravated criminal sexual assault.

Judgment affirmed in part and reversed in part.

McNAMARA and EGAN, JJ., concur.


text:
    WILLIE ROSS et al., Plaintiffs-Appellants, v. THE DEPARTMENT OF EMPLOYMENT SECURITY, Sally A. Ward, Director, et al., DefendantsAppellees.
    First District (6th Division)
    No. 1-89-1211
    Opinion filed July 6, 1990.

      Martin J. Rubin, of Schwartz & Rubin, and David L. Gore, of Kleiman & Whitney, both of Chicago, Bernard Kleiman and Carl B. Frankel, both of United Steelworkers of America, of Pittsburgh, Pennsylvania, and Jeremiah A. Collins and Virginia A. Seitz, both of Washington D.C., for appellants.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Jennifer A. Keller, Assistant Attorney General, of Chicago, of counsel), for appellees State of Illinois, Department of Employment Security, and Sally A. Ward.
    Gessler, Flynn, Fleischmann, Hughes & Socol, of Chicago, and James T. Carney, of Pittsburgh, Pennsylvania (Luanne Ellison, of counsel), for other appellees.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

The subject of this appeal is an order entered by the circuit court of Cook County on administrative review affirming the decision of the Director of the Department of Employment Security (Department) that plaintiffs were ineligible to receive unemployment insurance benefits under section 604 of the Unemployment Insurance Act (111. Rev. Stat. 1985, ch. 48, par. 434). The issue on appeal is whether the circuit court erred in affirming the decision of the Department that plaintiffs were unemployed as a result of a labor dispute and, therefore, ineligible for benefits.

Plaintiffs were the production and maintenance employees of the South Works plant of USX Corporation in Chicago (formerly known as United States Steel). The plaintiffs were represented for the purpose of collective bargaining by the United States Steelworkers of America (union), and they were covered by a collective bargaining agreement that was due to expire on August 1, 1986. Evidence presented at the administrative hearing established that the union adopted a policy statement calling upon USX and other represented steel companies to engage in early collective bargaining. In January 1986, the union sent a copy of the policy statement with a letter to the executive officers and negotiators of the represented steel companies, including USX, but USX did not respond to the union’s letter. However, USX had made a proposal to the union in December 1985, to negotiate a new contract prior to the union’s negotiations with the other companies, but USX claimed that the union never responded to its proposal. USX further stated that it received the union’s policy statement and letter proposing early negotiations in January 1986, but that the union’s readiness for early negotiations was contingent on the respective steel companies’ agreement to join the union’s political campaign to secure additional governmental controls on imports. USX was not willing to negotiate on this basis, and it refused the union’s offer. The union then negotiated new collective bargaining agreements with the five other steel companies that it represented and did not prepare to negotiate a new contract with USX until the other contracts were completed.

On May 15, 1986, USX sent the union officials notice that it was terminating the existing labor agreement as of August 1, 1986, and that it wanted to negotiate a new contract. On May 20, 1986, the union sent its counter-termination notice. The notices were sent in compliance with the provisions of the existing contract that the parties give notice of their intent to terminate the contract within 60 days of its expiration date. If neither party sent a termination notice, the existing contract would continue. Negotiations for the new contract began on June 12, 1986, and ended in a stalemate on July 31, 1986. During that time, both sides made several proposals and counterproposals regarding wages, as well as other working conditions, but could not reach an agreement.

Around the time that negotiations for the new contract were beginning, the management of the South Works began forecasting that the plant would not be operating during the last week in July and the first week in August. Evidence was also presented that even if agreement on a new contract were reached, the plant would not be operating during this period. Plaintiffs and defendants presented different explanations for the cause of the shutdown. The plaintiffs claimed that it was due to a lack of orders and that negotiations for the new contract were in the early stages when the shutdown was planned. USX claimed that the shutdown was planned in the event that contract negotiations faltered and a strike occurred. The shutdown of the plant took place in several stages, but by July 31, 1986, the process had been completed, and the plant closed. At midnight of the same day the old contract expired, and the negotiations for a new contract ended.

Following the shutdown of the plant, plaintiffs sought unemployment insurance pursuant to the Unemployment Insurance Act (the Act). A claims adjudicator found plaintiffs ineligible for benefits under section 604 of the Act because their unemployment was due to a labor dispute. Plaintiffs appealed the determination, and a hearing was held before the representative of the Director of the Department. Following the hearing, the Director’s representative affirmed the decision of the claims adjudicator. The findings relevant to this appeal were:

“1. A labor dispute existed at the South Works Plant of USX Corporation between USX and USWA starting May 15, 1986.
2. There was a stoppage of work at the South Works [Plant] commencing July 23,1986.
3. The stoppage of work was caused by the labor dispute.
4. The unemployment of the claimant-appellants was caused by the said stoppage of work due to the labor dispute.”

The Director affirmed her representative’s decision, and plaintiffs filed a complaint for judicial review of the Department’s decision which the circuit court affirmed.

Plaintiffs contend that the circuit court on administrative review erred in holding that the initiation of collective bargaining constituted a labor dispute within the meaning of the Unemployment Insurance Act. Section 604 of the Act provides:

“Labor dispute. An individual shall be ineligible for benefits for any week with respect to which it is found that his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he is or was last employed.” (Ill. Rev. Stat. 1985, ch. 48, par. 434.)

The general purpose of the Act is to provide compensation for those who are involuntarily unemployed. (Walgreen Co. v. Murphy (1944), 386 Ill. 32, 36, 53 N.E.2d 390.) However, under section 604 of the Act, an individual is disqualified from receiving benefits where his unemployment is the. result of a labor dispute. (Buchholz v. Cummins (1955), 6 Ill. 2d 382, 388-89, 128 N.E.2d 900, 904; Central Foundry Division of General Motors Corp. v. Holland (1976), 36 Ill. App. 3d 998, 1002, 345 N.E.2d 143.) The legislative purpose underlying this disqualification was to establish a policy that the State would not, by the payment of compensation, favor one party to a dispute over the other party. (Buchholz, 6 Ill. 2d at 382-86.) In order to find a party ineligible for benefits, there must be a specific finding of work stoppage, a labor dispute and proximate causation between the labor dispute and the stoppage of work. (Central Foundry Division of General Motors Corp., 36 Ill. App. 3d at 1002.) A labor dispute is defined as a controversy concerning wages, hours, working conditions or terms of employment. (Local 7 — 611, Oil, Chemical & Atomic Workers International Union v. Department of Labor (1983), 96 Ill. 2d 94, 98, 449 N.E.2d 134; Local No. 658, Boot & Shoe Workers Union v. Brown Shoe Co. (1949), 403 Ill. 484, 489, 87 N.E.2d 625.) It may take the form of a strike, lookout or other form of work stoppage. (Local 7 — 611, Oil, Chemical & Atomic Workers International Union, 96 Ill. 2d at 100; Bankston Creek Collieries, Inc. v. Gordon (1948), 399 Ill. 291, 298-99, 77 N.E.2d 670.) The statute does not distinguish between the stoppage of work caused by the employer or the employee, provided it is due to a labor dispute. Furthermore, neither the unreasonableness of the demands nor the merits of the dispute are material to the determination of whether a labor dispute actually exists. Bankston Creek Collieries, Inc., 399 Ill. at 298-99.

In this case, the Director’s representative found that a labor dispute between USX and the union began on May 15, 1986, when USX notified the union of its intent to terminate the current collective bargaining agreement when the contract expired. The representative also found that there was a stoppage of work at the South Works plant as of July 23, 1986, and that the stoppage of work and unemployment of the plaintiffs were caused by the labor dispute. Based on these findings, plaintiffs were found ineligible for benefits under the Unemployment Insurance Act.

We conclude that the evidence supports the administrative agency’s finding that there was a stoppage of work at the plant on July 23, 1986, and that the stoppage of work was caused by a labor dispute. However, we do not find any evidence to support the determination that the labor dispute began on May 15, 1986. The only relevant event which occurred at that time was USX’s notice to the union that it was terminating the existing labor agreement when the contract expired on August 1, 1986. In the notice to the union, Bruce Johnston of USX also expressed management’s desire to negotiate in “good faith” for a new labor agreement.

The Department and USX argue that the finding of a labor dispute on May 15, 1986, was supported by the evidence because the notice of intent which USX sent to the union on the above date was an action by the employer which had a bearing upon a controversy regarding wages or conditions of employment. In support of their argument, the Department and USX rely on Bankston Creek Collieries, Inc. (399 Ill. at 298), which defines a labor dispute as any action by an employer or labor organization which has a bearing upon a controversy as to wages or conditions of employment. However, contrary to the argument of the Department and USX, we do not find that the above notice of termination was evidence of such a controversy.

Negotiations for the new labor agreement began on June 12, 1986. During the next four weeks, both sides made several proposals and counterproposals regarding changes in the contract provisions, but they could not reach an agreement, and the negotiations ended in a stalemate on July 31, 1986. Therefore, even though there was no evidence of a labor dispute on May 15, 1986, a labor dispute did exist once the negotiations for the new contract began.

Although the function of a court on administrative review is generally limited to determining whether the findings of the agency are against the manifest weight of the evidence, this rule is not rigid or inflexible and “where injustice might otherwise result, a reviewing court may consider questions of law not passed upon by an administrative agency. [Citations.] Application of such an exception *** accords with the principle that a reviewing court is concerned primarily with the result reached by the trial court ruling and not with the reasons that court gives for the result it reached.” Wadlington v. Mindes (1970), 45 Ill. 2d 447, 453, 259 N.E.2d 257.

Thus, applying the reasoning of Wadlington, we conclude that even though the evidence did not support the finding of a labor dispute on May 15, 1986, the evidence did support the existence of a labor dispute shortly after negotiations for the new contract began. Additionally, it was this controversy or labor dispute which resulted in the stoppage of work at the South Works plant on July 31, 1986, as well as the unemployment of the plaintiffs. For these reasons, we conclude that the determination of the administrative agency that plaintiffs were ineligible for benefits was proper.

Accordingly, the order of the circuit court on administrative review is affirmed.

Judgment affirmed.

LaPORTA, P.J., and McNAMARA, J., concur.


author: JUSTICE RIZZI

text:
    IRENE FISHER, Indiv. and as Adm’r of the Estate of Walter Fisher, Deceased, Plaintiff-Appellant, v. FRED SLAGER et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1-87-3066
    Opinion filed July 11, 1990.
    Rehearing denied August 14, 1990.
    Michael J. Radtke, of Goldberg & Goldberg, and David A. Novoselsky & Associates, both of Chicago (David A. Novoselsky and Kathleen M. Krist, of counsel), for appellant.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, John W. Dondanville, Michael A. Pollard, and Kathleen F. MacLennan, of counsel), for appellee M. Norton Flanagan.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (John G. Langhenry, Jr., Robert H. Smith, and Lynn D. Dowd, of counsel), for appellee Timothy Scarff.
    Johnson, Cusack & Bell, of Chicago (Thomas H. Fegan, Donald N. Hoppe, and Charles W. Planek, of counsel), for appellees Richard J. Fiedler, Kyung Koo, and Elgin Internal Medicine Associates, Inc.
    Lord, Bissell & Brook, of Chicago (Williams P. Dorr, Hugh C. Griffin, and Diane I. Jennings, of counsel), for appellees Douglas Anderson and Foster G. McGaw Hospital, Loyola University of Chicago.
    O’Connor & Schiff, of Chicago (Elliot R. Schiff and Neil D. O’Connor, of counsel), for appellee Sherman Hospital.
    Pretzel & Stouffer, of Chicago (Robert Marc Chemers, Paul L. Price, and Michael G. Bruton, of counsel), for appellees A. Beaumont Johnson II and James B. Mansfield.
    Wildman, Harrold, Allen & Dixon, of Chicago (John M. Stalmack, Ruth E. Van DeMark, and Gregory S. Norrod, of counsel), for appellee Fred Slager.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff, Irene Fisher, individually and as administrator of the estate of Walter Fisher, deceased (Fisher), brought wrongful death and survival actions against 11 defendants, including Dr. Fred Slager; Dr. M. Norton Flanagan; Foster G. McGaw Hospital, Loyola University of Chicago (Loyola); Dr. Douglas Anderson; Dr. Timothy Scarff; Sherman Hospital; Dr. Richard J. Fiedler; Dr. Kyung Koo; Elgin Internal Medicine Associates; Dr. A. Beaumont Johnson II; and Dr. James B. Mansfield. Plaintiff alleged that the defendants negligently treated Fisher from the time that he suffered a massive brain hemorrhage until his death from a brain abscess over 14 months later. Specifically, plaintiff alleged that the defendants negligently failed to diagnose and treat the brain abscess. After a six-week trial, a jury returned a verdict in favor of all defendants and against the plaintiff, and the trial court entered judgment on the verdict. Plaintiff’s post-trial motion was denied and this appeal ensued. On appeal, plaintiff contends that the trial court erred in giving the jury IPI No. 105.08 (Illinois Pattern Jury Instruction, Civil, No. 105.08 (2d ed. 1971)(IPI Civil 2d)) and that the defendants’ closing arguments were prejudicial. We affirm.

On April 9, 1981, Fisher suffered a massive brain hemorrhage which caused a severe stroke. He was admitted to Loyola for treatment. Dr. Timothy Scarff, a neurosurgeon, treated Fisher at Loyola from April 10, 1981, until Fisher’s transfer to Sherman Hospital on May 13, 1981. When Fisher was admitted to Loyola, he was in a deep coma, had significant weakness on his left side and responded poorly to painful stimuli. Based upon CAT scans taken on April 9 and 10, 1981, Dr. Scarff determined that Fisher had a large blood clot, occupying one-third to one-half of the right portion of his brain. The most likely cause of the clot was severe, uncontrolled hypertension. The clot pushed Fisher’s brain structures to the left, compromising neurological function. On April 10, 1981, given this life-threatening condition, Dr. Scarff treated Fisher by placing a catheter directly into the affected area to drain the fluid, relieve intracranial pressure and to monitor brain swelling.

Between April 10 and 18, 1981, Fisher developed bacterial pneumonia. The development of infection is a complication of implantation of a catheter, with an increased risk of infection when a catheter is in place for more than 8 to 10 days. Dr. Scarff removed the catheter, and on April 18, 1981, assisted by Dr. Douglas Anderson, performed a craniotomy to remove the blood clot.

On April 22, 1981, Fisher displayed signs of infection and cultures were taken. Dr. Scarff consulted with Dr. O’Keefe, an infectious disease specialist. Based on that consultation, Dr. Scarff prescribed intraventricular and intravenous antibiotic treatment which included ampicillin, gentamicin and clindamycin. It is undisputed that the infection was a natural complication of Fisher's condition and the treatment given, and not the result of negligence.

In Dr. Scarff’s opinion, seven days of antibiotic treatment would have been sufficient because the cultures of Fisher’s cerebral spinal fluid on April 29, 1981, indicated that the infecting organism was gone. In accordance with Dr. O’Keefe’s opinion, however, Dr. Scarff ordered the administration of antibiotics for two weeks. Fisher received antibiotic treatment until May 10, 1981. After April 29, Fisher’s cerebral fluid was monitored on a daily basis and all of the cultures were negative for the presence of infectious organisms.

In Dr. Scarff’s opinion, Fisher did not have cerebritis (infection of the brain tissue), fulminating ventriculitis (a virulent infection of the fluid in the ventricles of the brain) or a brain abscess (an encapsulated pocket of infection) while a patient at Loyola or at the time of his discharge. According to Dr. Scarff, given the type of bacterial infection, it would have been impossible for Fisher to have had an ongoing infection and still produce cultures which were negative for the presence of infectious organisms.

Dr. Anderson similarly testified that the infection was successfully treated and that Fisher did not have ventriculitis, cerebritis, or a brain abscess on May 13, 1981, when he was transferred from Loyola to Sherman Hospital at the request of the Fisher family. Both Dr. Anderson and Dr. Scarff explained that if ventriculitis had been present and untreated at that time, Fisher would have suffered neurological deterioration and death within a few days or weeks.

According to Dr. Scarff, after the craniotomy, CAT scans taken on April 21 and 24 revealed a reduction in swelling in Fisher’s brain. An April 29, 1981, CAT scan was normal for a post-operative patient, and indicated a resolving blood clot, an improvement in the shifting of the brain structures and the healing process. Given Fisher’s post-operative condition, no further CAT scans were taken at Loyola after April 29, 1981. On May 13, 1981, Fisher was transferred to Sherman Hospital.

At Sherman Hospital, Dr. Beaumont Johnson II, a neurosurgeon, assumed responsibility for Fisher’s neurological care. Upon his admission to Sherman Hospital, Dr. Richard J. Fiedler examined Fisher, as his attending physician. Dr. Fiedler was an internist with Elgin Internal Medical Associates, as were Dr. Fred Slager and Dr. Kyung Koo, who also participated in Fisher’s care.

Prior to Fisher’s admission, Dr. Fiedler spoke with Dr. Johnson and Dr. James B. Mansfield for neurosurgical consultations. At the time of admission, Fisher continued to suffer from hypertension, paralysis of his left side and received blood pressure medication and nutrition through hyperalimentation. Dr. Johnson reviewed the April 29, 1981, CAT scan and was satisfied with Fisher’s stage of recovery.

On May 14, 1981, a sputum culture was taken and revealed the presence of proteus morabilis and pseudomonas. Dr. Fiedler prescribed an antibiotic, Keflex, and ordered additional cultures on May 16, 1981. A cerebral spinal fluid culture revealed the presence of proteus morabilis. Dr. Koo ordered Fisher transferred to the intensive care unit on May 20, 1981, because of his pulmonary and other problems. A CAT scan was also ordered. By May 28, 1981, the pulmonary infection or pneumonia had stabilized.

CAT scans performed on May 20, 1981, and June 10, 1981, disclosed abnormalities which Dr. Mansfield and Dr. Johnson interpreted as evidence of a resolving hematoma. Dr. Heenahan, a radiologist, interpreted the CAT scans and rendered a diagnosis of a brain abscess or a resolving hematoma. Initially, Dr. Mansfield believed that either condition was a possibility. As of June 13, 1981, however, Dr. Mansfield concluded that Fisher did not have a brain abscess because the lesion was decreasing in size and a brain abscess would have increased in size. From May 20, 1981, until June 10, 1981, the lesion decreased from 76 millimeters to 56 millimeters and the shifting of brain structures decreased from 12 to 8 millimeters. Dr. Johnson concurred that the condition was a resolving hematoma since the lesion was shrinking.

Dr. Mansfield testified that clinical improvements expected to occur during a resolving hematoma included a level of consciousness, responsiveness and improved speech. Fisher displayed continued improvement from May 31, 1981, until his discharge on July 7, 1981. On May 31, 1981, Fisher opened his eyes but was essentially semicomatose. Fisher became more alert, was able to nod his head and move his right side, and had increased muscle tone, such that he could sit in a chair by June 17, 1981. From June to September,. Fisher’s speech improved such that he progressed from speaking only a few words to engaging in excellent conversation.

Based upon this clinical improvement, which was inconsistent with the presence of an abscess, Dr. Mansfield decided not to aspirate the contents of Fisher’s lesion to determine if the contents comprised an abscess. Aspiration would involve the insertion of a needle through healthy brain tissue in order to reach the lesion.

Prior to Fisher’s July 1981 discharge from Sherman Hospital, Dr. Flanagan, a board-certified physiatrist who rehabilitated patients, recommended continued, intensive therapy. The family refused to admit Fisher to a rehabilitation facility and selected an out-patient, home-therapy plan. Dr. Flanagan did not control the plan, although Sherman Hospital’s therapy staff was utilized.

On August 22, 1981, the Fisher family reported to Dr. Flanagan that Fisher’s functional abilities had not improved since his discharge. Dr. Flanagan again recommended that Fisher be admitted to an inpatient therapy group. Fisher continued with the out-patient plan and missed 50% of his therapy appointments due to his elevated blood pressure. Dr. Flanagan supervised Fisher’s out-patient therapy and assessed his progress until April 1982.

Fisher developed a reddened area around the scar from the craniotomy and drainage from that area. Dr. Johnson ordered a culture of the draining fluid, which showed the presence of poteus morabilis. Dr. Johnson recommended that the scalp wound be revised within the week and that, if necessary, the flap of bone which was removed to do the craniotomy be replaced with a plastic or metal plate. Mrs. Fisher did not want the surgical revision performed and consulted with Dr. Scarff for a second opinion on September 12, 1981.

Dr. Scarff ordered skull X rays, and based on those X rays determined that neither the skull nor the bone flap was infected. The radiology report stated that there was no evidence of infection at the surgical site. According to Dr. Scarff, the bone flap was positioned where it had been after surgery. Had there been an abscess present, the bone flap would have been pushed out by the inflammation. Dr. Scarff advised Fisher to return to Dr. Johnson and follow his recommendations and that it was appropriate to treat the area with antibiotics. The scalp revision that had been advised by Dr. Johnson was never performed. Fisher went to Dr. Fiedler, who treated Fisher’s head injury with antibiotics.

In September and October 1981, Fisher experienced seizures and the seizures recurred after the family discontinued administering his seizure medication because it made him drowsy. The medication was changed and there were no further significant seizures.

From September 1981 through May 1982, Fisher received a variety of medications and antibiotics under Dr. Fiedler’s supervision. Fisher suffered from a number of serious disease processes, including kidney disease, diabetes and hypertension. On June 5, 1982, Fisher became unresponsive and Dr. Fiedler instructed the family to bring him to the hospital. Fisher was unresponsive to pain and his blood pressure was elevated to 198 over 110. Dr. Fiedler consulted a neurosurgeon and an infectious disease specialist, and ordered a CAT scan, which revealed the presence of a brain abscess.

June 5, 1982, Dr. Chung performed surgery to drain the abscess. A culture revealed the presence of two bacteria, staph aureas and proteus morabilis. Again, on June 19, 1982, Dr. Chung operated to drain the abscess. Fisher died on June 22, 1982, of cardiac arrest caused by the brain abscess. Dr. Chung’s surgical report stated, and plaintiff’s expert witness, Dr. Robert Geller, agreed, that Fisher did not suffer from an infection of the bone flap.

Dr. Geller opined that each of the doctors who were named as defendants deviated from the standard of care in failing to diagnose the presence of a brain abscess prior to June 5, 1982. Yet, Dr. Geller could not determine whether Fisher had clinical signs of symptoms of a brain abscess during his initial hospitalization at Sherman Hospital and conceded that the abscess could have developed later from an infection in Fisher’s urine, lung, or skin which had been carried to his brain via his blood stream.

Plaintiff’s other expert witness, Dr. Alan Levin, testified that the CAT scan taken at Loyola on April 29, 1981, did not reveal an abscess. According to Dr. Levin, as late as May 20, 1981, the presence of a brain abscess could not have been diagnosed from the CAT scan alone, but the doctors would have to have been able to “look into the future” at that point to diagnose the brain abscess. Dr. Levin acknowledged that Fisher did not have any of the classic symptoms of brain abscess, such as vomiting and headaches, until shortly before he was readmitted to Sherman Hospital on June 5,1982.

Defendants’ experts, Dr. Michael Jerva, chief of neurosurgery at Mercy Hospital, Dr. Hector James, a pediatric neurosurgeon, Dr. Glenn Dobben, a neuroradiologist, Dr. Richard Stalzer, a specialist in internal medicine, and Dr. Stuart Levin, an infectious disease specialist, testified that the management and treatment of Fisher’s medical condition was within the standard of care and did not cause or contribute to his death in any manner. Specifically, they testified that the timing and number of scans taken were appropriate and within the standard of care, and that Fisher’s transfer to and discharge from Sherman Hospital were appropriate. Additionally, the antibiotics selected, the dosage and method of administration, as well as the management of his care in 1982 were all within the proper standard of care.

In summary, defendant’s experts opined that Fisher did not have a brain abscess until shortly before he arrived at Sherman Hospital on June 5, 1982, and that the drainage from the scalp wound was not a symptom of a brain abscess. Their opinions were based in part on the fact that it was not possible for a brain abscess to remain in a patient for a year without manifestation of clinical signs or symptoms because a brain abscess is a very rapidly progressing condition which, if left untreated, would result in death in a matter of days or weeks.

We first address plaintiff’s contentions in the trial court and on appeal relating to the trial court giving the jury IPI Civil 2d No. 105.08. The instruction states;

“A patient is required to follow [the doctor’s] reasonable advice as to treatment. In addition, he must follow the doctor’s postoperative treatment [and] instructions. A doctor is not liable for the consequences of a patient’s failure to do so. A patient’s failure to receive treatment or follow instructions does not absolve the doctor from the results of any earlier malpractice. It only absolves him from any injury caused by the patient’s not accepting reasonable treatment or following instructions.”

At the conference on instructions, plaintiff made only the following objection when IPI Civil 2d No. 105.08 was tendered:

“I don’t believe that the evidence supports the giving of that instruction. I think that plaintiff-Fisher did follow all instructions that were given.”

The trial judge overruled plaintiff’s objection and stated, “I think that there is testimony in the record concerning the advice of Dr. Johnson and the lack of the followup by the patient, so that issue is something for the jury to consider.”

The record clearly supports the trial court’s conclusion. There is evidence that Fisher failed to undergo a scalp revision as advised by Dr. Johnson. There is also evidence that prior to Fisher’s hospital discharge on July 7, 1981, Dr. Flanagan recommended continued intensive therapy as an in-patient. Fisher, however, was not admitted in a rehabilitation facility but, instead, he began a home-therapy plan which was managed on an out-patient basis. There is evidence that the home-therapy plan utilized between August 8, 1981, and August 22, 1981, was not the best mode of rehabilitation. On August 22, 1981, Fisher’s family returned to see Dr. Flanagan because they believed that Fisher’s functional abilities had not improved since his discharge. Dr. Flanagan again recommended that Fisher be admitted to an inpatient therapy program, but this advice was not followed. Instead, Fisher continued with an out-patient program. The out-patient plan required treatment no fewer than three days a week and ideally five days a week. Fisher, however, missed approximately 50% of his therapy appointments. A physical therapist who treated Fisher testified that missing approximately 50% of the therapy treatments can interrupt the continuity of treatment and hinder the patient’s progress. A medical expert witness testified that missing approximately 50% of the prescribed therapy treatments was not in the patient’s best interest.

Under the circumstances, we conclude that at the conference on instructions, the trial court properly overruled the plaintiff’s objection that IPI Civil 2d No. 105.08 should not have been given to the jury because there was no evidence to support the giving of the instruction. There clearly was sufficient evidence to support the instruction.

On appeal, plaintiff argues that there was no evidence that Fisher’s failure to undergo a scalp revision or his failure to follow the medically advised rehabilitation program was a proximate cause of Fisher’s death and that, therefore, IPI Civil 2d No. 105.08 should not have been given to the jury. We disagree.

Plaintiff’s argument ignores the fact that this case is not merely a wrongful death action. It is also a survival action, for which the plaintiff asked the jury to award substantial damages because “during the last year of his life” Fisher’s physical abilities did not improve and because he did not “achieve his potential” and because he suffered pain. We believe that there was sufficient evidence from which the jury could have found, had it reached the issue, that the damages claimed in the survival action resulted in whole or part from Fisher’s rejection of Dr. Johnson’s advise and Fisher’s failure to follow the medically advised rehabilitation plan which was prescribed for him. We therefore conclude that the plaintiff’s argument that IPI Civil 2d No. 105.08 should not have been given to the jury because there was no evidence that either of the above propositions was a proximate cause of Fisher’s death is untenable. Both propositions relate to the damages sought and legitimate factual issues in the survival action.

In her post-trial motion, plaintiff contended that giving the jury IPI Civil 2d No. 105.08 was improper because “[tjhere was no instruction as to comparative fault tendered to the jury in the issue instruction.” Plaintiff did not identify which specific so-called comparative fault instruction should have been given to the jury. In her brief on appeal, however, plaintiff argues that since IPI Civil 2d No. 105.08 is a damage-reducing instruction, the trial court should have given the jury IPI Civil 2d No. 45.07 (3d ed. 1990) in conjunction with IPI Civil 2d No. 105.08. IPI Civil 3d No. 45.07 reads as follows:

We further find the following:
First: Without taking into consideration the question of reduction of damages due to the negligence of the plaintiff [if any], we find that the total amount of damages suffered by the plaintiff as a proximate result of the occurrence in question is $_[.] [, itemized as follows:]
Second: Assuming that 100% represents the total combined negligence of all persons whose negligence proximately contributed to the plaintiff’s [injury] [or] [damage], including the plaintiff[,] [and] the defendants we have found liable,] [and all other persons], we find that the percentage of such negligence attributable solely to the plaintiff is_percent (%).
Third: After reducing the total damages sustained by the plaintiff by the percentage of negligence attributable solely to the plaintiff, we assess the plaintiff’s recoverable damages in the sum of $__
[Signature Lines]”

The manifest fault in plaintiff’s argument is that the plaintiff herself tendered the general verdict forms that were given to the jury, and she never tendered IPI Civil 3d No. 45.07, or any comparative negligence issue instruction, to the trial court. She therefore can not now be heard to complain that the trial court should have given the jury IPI Civil 3d No. 45.07 or a comparative negligence issue instruction. Auton v. Logan Landfill, Inc. (1984), 105 Ill. 2d 537, 550, 475 N.E.2d 817, 821; McKinney v. Coca Cola Bottling Co. (1988), 170 Ill. App. 3d 362, 363, 524 N.E.2d 657, 658; 107 Ill. 2d R. 366 (b)(2)(i).

Moreover, plaintiff concedes that IPI Civil 2d No. 105.08 is solely a damage-reducing instruction and IPI Civil 3d No. 45.07 is a damage-reducing verdict form as opposed to a general verdict form. Since the jury found all 11 defendants not liable, the giving of IPI Civil 2d No. 105.08 and the failure to give IPI Civil 3d No. 45.07 would only be a nugatory error, if it were error. This is made plain by the fact that the jury was given IPI Civil 3d 36.01. The IPI Civil 3d No. 36.01 instruction that was given to the jury reads as follows:

“If you decide for one or more of the defendants on the question of liability, you will have no occasion to consider the question of damages as to that defendant or those defendants.”

Under the circumstances, the jury in this case had no occasion to consider reducing the plaintiff’s damages as provided in IPI Civil 2d No. 105.08, or in reducing the plaintiff’s damages as provided in IPI Civil 3d No. 45.07. It follows that plaintiff’s argument that she is entitled to a new trial because the jury was given IPI Civil 2d No. 105.08 and because the jury was not given IPI Civil 3d No. 45.07 has no valid basis.

We next address plaintiff’s contention that defendants’ closing arguments were so highly prejudicial that plaintiff was denied a fair trial. The closing arguments in the case lasted IV2 days and comprised 294 pages of the transcript. A total of 49 objections were made by plaintiff’s attorney during the course of defendants’ closing arguments and 40 of the objections were sustained. In most instances where the objections were sustained, the trial court instructed the jury to disregard the remarks to which the objections were made. Plaintiff did not make a motion for a mistrial during or after closing arguments. The request for a new trial based on the closing arguments was made for the first time in plaintiffs post-trial motion.

Some of the typical statements in the closing arguments about which plaintiff complains include the following:

“(1) [Defendant exercised good, reasonable judgment;
(2) The facts and the evidence show that his hypertension on April 9, 1981 was not under control. In fact, it was so out of control that it literally blew away 30 percent of the right side of his brain;
(3) That the catastrophic stroke ***;
(4) This is a patient who, just a few weeks before, missed therapy because he was downtown with the family visiting the lawyer;
(5) Dr. Robert Geller, I’d like to speak on him for a minute. Before I get started on those two experts, I’d like to apologize to you for anything I might have done in cross-examination of Geller or Levin. Sometimes the exuberance of defense counsel, and when I see a witness stretching out beyond where they should be and trying to fool the jury, it bothers me;
(6) Dr. Geller belongs on staff at Freeport Hospital, a 125 bed hospital. *** He is on the consulting staff at a small hospital 125 miles north of Milwaukee on Lake Winnebago, Theda Clark Hospital. Nowhere in his travels between Freeport and Mishicot or Neenah does he belong on any other staff at any hospitals in Milwaukee or anywhere in between there. His wife starts law school, and he wishes to volunteer to become a medical expert;
(7) He [Dr. Geller] goes to attorneys, he said once on cross-examination, they didn’t come to him, no matter the merits of the case, no matter the worthiness of the case, no matter the medical issues, and asserts himself ***:
(8) And if you get past the hospitalization, and thanks to Tim Scarff he did, your chances of living five years, you have a 90 percent of chance that you aren’t going to make it to five years. And Dr. Bitran, who testified in a deposition on behalf of Mr. Fisher, agrees;
(9) The clerk of the circuit court does not review allegations of a complaint to question the complaint’s validity;
(10) I am not sure still, I know you weren’t sure, what the criticisms of Sherman Hospital were;
(11) Dr. Dobben is right if he’s telling you the truth, then any physician in this room, any defendant who’s found liable, guilty, however you want to put it, for the death, of Walter Fisher, will be unjustly convicted ***;
(12) We can talk more about Dr. Geller in terms of qualifications in talking about this case; but he knew when he got involved in this case that he had a theory to work backwards with and that is a man died of a brain abscess and let’s find out who and why and perhaps how many we can condemn for that death ***.”

Defendants argue that many of the statements about which the plaintiff complains were proper and not objectionable, and that the others were neither singularly nor cumulatively prejudicial.

After scrupulously reviewing all of the statements about which complaints were made in the closing arguments in the context in which the statements were made, we conclude that the trial court did not abuse its discretion in ruling on the objections or in- denying the plaintiff’s post-trial motion with respect to the closing arguments.

The record reflects that this case involved a long and difficult trial that was hard fought on both sides by very aggressive and competent counsel. The trial court should be commended for controlling the combativeness of all counsel and giving the parties exactly what they were entitled to receive — a fair trial.

Affirmed.

WHITE and FREEMAN, JJ., concur.


author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ZORAN MARANOVIC, Defendant-Appellant.
    First District (4th Division)
    No. 1-87-2603
    Opinion filed July 12, 1990.

      Randolph N. Stone, Public Defender, of Chicago (James H. Reddy, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Paul Gliatta, and Stanislaus Gonsalves, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, Zoran Maranovic, was charged with the offense of delivering less than 30 grams of a substance containing cocaine, a Class X felony. Plea negotiations led to the reduction of the charge to a Class 2 felony. Defendant entered a guilty plea and was sentenced to three years in the Illinois Department of Corrections. Defendant did not appeal his conviction or file a motion to vacate the judgment and for leave to withdraw his guilty plea. Rather, he filed a petition which sought to withdraw his plea under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1983, ch. 38, par. 122 — 1 et seq.), and alleged that the guilty plea was involuntary because he was not advised of the possibility of deportation as a result of pleading guilty to a felony. Following the hearing, the trial court denied the petition. Defendant now appeals from that decision.

We reverse.

During the post conviction hearing, defendant’s trial attorney, Salvatore Marzullo, testified that he did not advise defendant about the possible consequences of deportation which could have occurred as a result of entering a guilty plea. Marzullo also testified that defendant did not inform him that he was an alien. He believed that defendant was from Yugoslavia, but did not inquire into defendant’s legal status in this country. The arrest report, written after defendant’s arrest, indicated that defendant’s place of birth was Yugoslavia. Marzullo testified that he reviewed the report before advising defendant to enter a guilty plea. Marzullo further stated that occasionally he found it necessary for him to use an interpreter to communicate with defendant. Cross-examination of Marzullo also revealed that he acted as the trial attorney in People v. Padilla (1986), 151 Ill. App. 3d 297, a factually similar case involving the identical issue presented here.

Defendant testified on his own behalf and stated that he informed Marzullo of his alien status. Defendant also stated that Marzullo did not advise him concerning the consequences of a conviction for delivering controlled substances. Defendant stated that he would not have pleaded guilty if he had been aware of the consequences. Defendant did not learn that he was going to be deported until after entering the guilty plea.

After hearing the evidence, the trial judge denied defendant’s petition and specifically stated that his decision was based on the credibility of the witnesses.

On appeal, defendant argues that he was denied his sixth amendment right to counsel when his attorney advised him to enter a guilty plea, but failed to counsel defendant concerning the possible immigration consequences of such a plea. The State argues that defendant’s post-conviction petition was properly denied since defendant’s trial attorney was under no obligation to inform defendant of the possible immigration implications of a guilty plea when he was unaware of defendant’s alien status.

To determine whether Marzullo’s representation of defendant was ineffective, we must determine whether defendant’s guilty plea was a voluntary, intelligent and informed choice. (People v. Huante (1990), 194 Ill. App. 3d 159, 161.) The Supreme Court has adopted a two-part test for this determination in the case of Strickland v. Washington (1984), 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064. The defendant must first demonstrate that his attorney’s representation fell below an objective standard of reasonableness and, secondly, that there is a reasonable probability that the result of the proceedings would have been different but for the attorney’s unprofessional errors. (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) The second element may be satisfied by a showing that but for trial counsel’s unprofessional conduct, defendant would have insisted upon going to trial rather than pleading guilty. (Huante, 194 Ill. App. 3d at 162.) The Strickland test was expressly adopted by our supreme court in People v. Albanese (1984), 104 Ill. 2d 504, 526-27.

In People v. Padilla (1986), 151 Ill. App. 3d 297, this court found that a trial attorney who knows that his client is an alien must advise him of the deportation consequences of a guilty plea in a criminal proceeding. In the plurality decision of People v. Huante (1990), 194 Ill. App. 3d 159, the majority opinion extended the Padilla standard and found that trial counsel either knew or should have known that defendant was an alien and therefore was required to advise defendant of the deportation consequences of a guilty plea. Although the State urges us to adopt the dissenting opinion in Huante, we must agree with the majority. The determination of whether the failure to investigate potential deportation consequences constitutes ineffective assistance of counsel turns upon whether the trial attorney had sufficient information to form a reasonable belief that defendant was in fact an alien. Huante, 194 Ill. App. 3d at 164.

In the present case, the trial attorney testified that there was no discussion with defendant concerning his alien status or immigration consequences of a guilty plea. The trial court denied defendant’s petition based on the credibility of the witnesses, notwithstanding the trial attorney’s testimony that he reviewed an arrest report that declared defendant’s place of birth to be Yugoslavia and on some occasions an interpreter was required to communicate with defendant. Since the trial attorney involved in this case was also the defense attorney in People v. Padilla (1986), 151 Ill. App. 3d 297, 298, he was aware that a plea of guilty to a charge of possession of controlled substances could result in deportation. Furthermore, defendant testified that he would not have pleaded guilty to the charge had he known a guilty plea would have resulted in deportation; he indicated that he would have gone to trial. We believe the facts of this case indicate that the trial attorney had sufficient information to form a reasonable belief that the defendant was, in fact, an alien.

Here, just as in Huante, the trial attorney had sufficient information, before defendant pleaded guilty, to question defendant’s alien status; yet, he chose, albeit erroneously, to assume that defendant was not of alien status. Trial counsel’s representation fell below an objective standard of reasonableness when he failed to ascertain the immigration status of defendant in a case where a conviction could result in deportation. Furthermore, there is no doubt that the trial attorney’s unprofessional errors affected the outcome of the proceedings. Therefore, both elements of the Strickland test have been satisfied.

Accordingly, we reverse the judgment of the circuit court and remand the cause with directions to vacate defendant’s guilty plea and grant him a new trial.

Reversed and remanded with directions.

McMORROW, P.J., and JIGANTI, J., concur.