author: JUDGE WOODWARD JUSTICE DUNN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS WEST, Defendant-Appellant.
    Second District
    No. 2—90—0121
    Opinion filed August 19, 1992.
    Rehearing denied October 22,1992.

      DUNN, J., dissenting.
    G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Marilyn Martin, of Chicago, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan, and Kevin B. McCarthy, of Springfield (William L. Browers and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUDGE WOODWARD

delivered the opinion of the court:

Following a jury trial, the defendant, Thomas West, was convicted of two counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 16(c)(l)(i)) and was sentenced to serve a term of three years’ imprisonment in the Department of Corrections. Defendant appeals, raising the following issues: (1) whether the admission of the victim’s out-of-court statement was reversible error; (2) whether the defendant was proved guilty beyond a reasonable doubt; (3) whether the defendant was denied a fair trial due to certain evidentiary rulings by the trial court; (4) whether defendant was denied a fair trial by the prosecutor’s closing argument; and (5) whether defendant was denied the effective assistance of counsel.

MOTION TO SUPPRESS

Prior to trial, defendant filed a motion to suppress a written statement he gave to Officer Ralph Henriquez of the Waukegan police department. At the hearing held on the motion, Officer Henriquez testified that on August 30, 1989, at approximately 10:30 p.m., he interviewed the defendant at the Waukegan police department concerning allegations of certain actions between himself and his seven-year-old niece, S.W. After the defendant had been given Miranda warnings, he told Henriquez he would talk to him. Defendant then gave a statement, which Henriquez typed up and defendant signed. According to the statement, defendant admitted putting his arms around S.W. from behind and touching her private area; that he showed S.W. a poster with some women on it; and that he had pulled down his pants exposing himself to her and signaled to her to come over to him but that S.W. had then left the room. Henriquez denied ordering the defendant to sign the statement or promising him anything in return for his signature on the statement. Henriquez further testified that before signing the statement defendant told him that the statement was true and accurate.

On cross-examination, Henriquez testified that defendant was not in custody during the interview. He denied telling defendant that if he signed the statement Henriquez would help him get out of jail the next morning. Henriquez denied that defendant told him he had never touched S.W.

Defendant testified that he was locked in a cell at the Waukegan police department for two to three hours prior to his interview with Officer Henriquez. After Henriquez advised him of his rights, defendant agreed to talk to him. In response to Henriquez’ questions, defendant told him that he never touched S.W. According to defendant, Henriquez gave him a piece of paper to sign which defendant read. When he got to the part of the statement which said that he had touched S.W., defendant told Henriquez that the statement was not true. Henriquez then told him that if he signed the statement it would go easier on him in court and that he would probably be released the next morning. Defendant also testified that Henriquez told him that he had to sign the statement.

On cross-examination, defendant denied that Henriquez had threatened him but reiterated that Henriquez had told him that he had to sign the statement and that he would go easy on him in court.

The trial court found Officer Henriquez’ testimony to be the more credible and denied the motion to suppress.

THE TRIAL

Outside the presence of the jury, a hearing was held to establish the competency of seven-year-old S.W. Under questioning by the State, S.W. demonstrated that she could spell her name, knew where she attended school, what grade she was in, what her teacher’s name was and what subjects she studied. She could also recall past events and knew the difference between the truth and a lie. The trial court found that she was competent to testify.

FOR THE STATE

David W., S.W.’s father, testified that on the afternoon of August 30, 1989, he received a telephone call at work from his son, David, Jr. Over the objection of the defendant, but with a limiting instruction, David W. was permitted to testify that David, Jr., told him that defendant had “messed” with S.W. and had tried to fondle her in some way. The witness told David, Jr., to go with S.W. to his fiancee’s house, and he would meet them there. After talking to S.W., David W. returned to his house, obtained a knife and would have gone after defendant. However, he was stopped by his mother and sisters, and defendant ran out the back door. The police were called. S.W. identified a picture of a semi-nude woman that the police showed her.

On cross-examination, David W. testified that S.W. not only told him that defendant had exposed himself to her, but he had rubbed up against her behind. He further testified that he did not tell David Asma, the investigator from the public defender’s office, that defendant had rubbed up against S.W.

S.W. testified that she was in the basement of her home helping the defendant with his laundry. Defendant showed her a picture of a naked woman. Defendant then touched her behind. S.W. demonstrated this act by putting the pubic area of an adult male doll against the buttocks area of a small female doll. S.W. stated that defendant did not touch her anywhere else. According to S.W., defendant then went upstairs but returned to the basement and went inside a curtained area that he used as a bedroom. He called to S.W. to come into his bedroom, but she only went as far as the curtains. She saw defendant with his pants down exposing his “privates” to her. Defendant signaled her with his finger to come to him, but S.W. ran upstairs.

On cross-examination, S.W. testified that the prosecutors had told her what places on the dolls defendant had touched her. She did not know exactly where defendant was when he was behind her. She did not remember telling her Aunt Pat that the defendant had not touched her. She did remember telling her Aunt Bianca that defendant had just bumped her. She did not remember talking to David Asma.

On redirect examination, S.W. testified that the prosecutors had not told her what happened but that she had told them what had happened.

Out of the presence of the jury, a hearing was conducted to determine if S.W.’s out-of-court statement to Officer Henriquez was admissible pursuant to section 115 — 10 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10).

Henriquez testified that on August 30, 1989, at approximately 10 p.m., he questioned S.W. in the advocacy room of the Waukegan police department. S.W.’s father sat just outside of the room, and the door to the room was open. Henriquez asked S.W. to tell him what the defendant had done to her. She told him that defendant bumped his private part against her private part in back and demonstrated this with the use of male and female dolls. S.W. also told him that defendant put his hands around her placing his hands on her tummy. Defendant then lifted his hand and placed it on her private part. She identified her private part as the groin area on the female doll. S.W. then told Henriquez that defendant then gave her a book with naked ladies in it. She gave the book back to the defendant, who then went into his room. S.W. heard defendant call to her, at which time she saw defendant with his pants down and his private part out, motioning to her with his finger. S.W. stated that she walked to the curtain, and defendant motioned to her again with his finger. She told the defendant, “No way,” and tried to run upstairs. According to S.W., although defendant tried to grab her by the pants leg and pull her pants down, he was not able to, and she ran upstairs. S.W. also told him that defendant had never done anything like this to her before.

On cross-examination, Officer Henriquez testified that he questioned S.W. almost immediately after she arrived at the police department. The interview took place at 8 p.m. Henriquez explained that, as he held the dolls, he asked S.W. to point out the areas that defendant had touched her.

The trial court concluded that S.W.’s statement fulfilled the requirements of section 115 — 10 as far as time, content and circumstances surrounding it and allowed it into evidence. Prior to Henriquez’ testimony before the jury, the trial court instructed the jury as follows:

“You have before you evidence that [S.W.] made statements concerning the offenses charged in this case. It is for you to determine whether the statements were made and if so, what weight should be given to the statements. In making that determination, you should consider the age and maturity of [S.W.], the nature of the statements, and the circumstances under which they were made.”

Officer Henriquez then testified in accordance with his prior testimony given outside of the presence of the jury and with his testimony at the hearing on defendant’s motion to suppress.

On cross-examination, Officer Henriquez testified that at least one other police officer had spoken with S.W. prior to his interview with her. At the time he interviewed him, the defendant did not have an attorney with him. Henriquez did not tape-record or videotape his interview with the defendant. Defendant did not write out the statement; Henriquez typed it himself. Henriquez agreed that obtaining an inculpatory statement from a suspect made for a better case.

FOR THE DEFENSE

Patricia Hagler, defendant’s sister, testified that on August 30, 1989, she went to pick up S.W. at the home of Jasmine Wadsworth, her brother, David W.’s, girlfriend. In the presence of Jasmine and S.W.’s two brothers, Patricia asked S.W. if the defendant had touched her, and S.W. told her no. In a second conversation, S.W. denied that defendant had touched her. S.W. never told her that defendant had bumped her.

On cross-examination, Patricia testified that after she brought S.W. home, they did not have any further conversation. Patricia only asked S.W. if defendant had touched her, nothing more specific.

Bianca Jones, another of defendant’s sisters, testified that on August 30, 1989, after Patricia had brought S.W. home, she took S.W. aside and asked her what happened. S.W. told her that, while she was helping the defendant do his laundry, he bumped up against her. S.W. denied that defendant had molested or touched her. She examined S.W. but found no physical indication that S.W. had been molested. S.W. also told her that defendant had his pants down “a little bit.”

On cross-examination, Bianca testified that S.W. told her that defendant had bumped up against her with his “privacy.” According to Bianca, she knew that S.W. was referring to a man’s penis when she used the term “privacy.”

Polly W, defendant’s mother, testified that she was present when S.W. was questioned by David Asma, an investigator for the public defender’s office. All she heard S.W. say was that the defendant bumped her. S.W. did not tell Asma that defendant rubbed his “privacy” against her.

On cross-examination, Polly testified that S.W. told Asma that defendant bumped her behind while she was bending over at a dresser looking for some clothes.

David Asma, an investigator with the Lake County public defender’s office, testified that he spoke with S.W. in the presence of her father, David W. S.W. told him that while she was in the basement looking for clothes for school defendant came down and showed her a poster with three women on it. Defendant stood behind her. S.W. denied that defendant had touched her or that he had touched her private parts.

Asma further testified that David W. told him that he had received a telephone call at work from his children who told him that defendant had tried to mess with S.W. According to David W, S.W. had told him in essence that defendant had exposed himself to her. S.W. never told him that defendant had touched her.

Following closing arguments, the defendant was found guilty of two counts of aggravated criminal sexual abuse and sentenced as stated above. This appeal followed.

Defendant contends, first, that the admission of S.W.’s out-of-court statement to Officer Henriquez was reversible error. He maintains that the trial court’s ruling that the statement fulfilled the requirements of section 115 — 10 of the Code, without affirmative findings, was inadequate as a matter of law.

Section 115 — 10 provides in pertinent part as follows:

“(a) 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 of an out of court statement made by such child describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual act perpetrated upon a child.
(b) Such testimony shall only be admitted if:
(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and
(2) The child either:
(A) Testifies at the proceeding; or
* * *
(c) If a statement is admitted pursuant to this Section, the court shall instruct the jury that it is for the jury to determine the weight and credibility to be given the statement and that, in making the determination, it shall consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, and any other relevant factor.” (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10.)

We note that the statute itself does not require that the trial court set forth any specific findings or determinations.

Recently, in People v. Rocha (1989), 191 Ill. App. 3d 529, this court dealt with the issue of the unavailability for purposes of section 115 — 10. In the course of that opinion, however, we also held that, in conducting the hearing to determine the reliability of the victim’s out-of-court statement, the evidence must show a particularized guarantee of trustworthiness. Rocha, 191 Ill. App. 3d at 541.

Even more recently, in People v. Coleman (1990), 205 Ill. App. 3d 567, the Appellate Court, Fourth District, set forth the test for determining the particularized guarantee of trustworthiness as found in Idaho v. Wright (1990), 497 U.S. 805, 111 L. Ed. 2d 638, 110 S. Ct. 3139. The court stated as follows:

“The Court concluded that the ‘ “particularized guarantees of trustworthiness” must be shown from the totality of the circumstances, but we think the relevant circumstances include only those that surround the making of the statement and that render the declarant particularly worthy of belief.’ [Citation.] This test is based on the belief that evidence admissible under this exception must be, just as it is for firmly rooted hearsay exceptions, ‘so trustworthy that adversarial testing would add little to its reliability.’ [Citation.] The Court specifically held that this determination is to be made without the use of other evidence which may corroborate the statement. [Citation.]
The Court identified a number of factors which relate to whether hearsay statements made by child witnesses in child sex-abuse cases are reliable. These include spontaneity and consistent repetition, mental state of declarant, use of terminology unexpected of a child of similar age, and lack of motive to fabricate. [Citation.] However, the Court further explained:
‘These factors are, of course, not exclusive, and courts have considerable leeway in their consideration of appropriate factors. We therefore decline to endorse a mechanical test for determining “particularized guarantees of trustworthiness” under the Clause. Rather, the unifying principle is that these factors relate to whether the child declarant was particularly likely to be telling the truth when the statement was made.’ ” Coleman, 205 Ill. App. 3d at 581-82, quoting Wright, 497 U.S. at 822, 111 L. Ed. 2d at 656, 100 S. Ct. at 3150.

After determining, in accordance with Rocha, that the child witness was unavailable, the Coleman court noted that while the trial court had conducted a hearing outside the presence of the jury pursuant to section 115—10(b)(l) and had found the statement admissible reciting the statutory language, Wright had now given greater definition to the required hearing and the finding necessary to allow admission of the evidence. The case was remanded, inter alia, for the trial court to conduct a second hearing and make a determination in accordance with Wright.

We have a similar situation in the case before us. The trial court conducted the requisite hearing outside the presence of the jury and, reciting the statutory language, determined that S.W.’s statement to Officer Henriquez was admissible. Without more, it is impossible to determine what factors led the trial court to conclude that S.W. was more likely to be telling the truth when she made the statement to Officer Henriquez.

The fact S.W. did, in fact, testify in this case does not lessen the need to establish the reliability of her out-of-court statement. According to S.W.’s out-of-court statement to Officer Henriquez, defendant rubbed S.W.’s groin area with his hand. However, S.W. testified only to defendant’s touching her behind. Further, the statute requires the hearing before the out-of-court statement can be introduced whether the victim testifies or is unavailable. (Ill. Rev. Stat. 1989, ch. 38, pars. 115 — 10(b)(l), (2)(A), (2)(B).) We are aware that in People v. Roy (1990), 201 Ill. App. 3d 166, the court determined that the failure to hold the section 115 — 10(b)(l) hearing was not plain error. However, in Roy, the defendant received a bench trial and failed to object to the fact that no such hearing was held.

The State cites this court’s opinion in People v. Edwards (1992), 224 Ill. App. 3d 1017, as supportive of the trial court’s determination in this case. In Edwards, the defendant objected to the admission of certain hearsay statements pursuant to section 115 — 10. He argued that the circumstances surrounding the making of the statements failed to show sufficient safeguards of reliability. Unlike the case at bar, the trial court in Edwards gave its reasons for finding the statements reliable. This court reviewed the guidelines set forth in Wright for determining reliability and concluded that the statements met those guidelines. A review of the trial court’s comments satisfied this court that the trial court had carefully considered the reliability issue.

Unlike the trial court in Edwards, the trial court in the case at bar merely recited the language of the statute in admitting Officer Henriquez’ testimony as to S.W.’s statement to him. There is no indication that the trial court considered the guidelines set forth in Wright for determining the reliability of the hearsay statements in this case. Contrary to the State’s argument, this court’s opinion in Edwards makes it clear that the record must reflect that the safeguards of reliability have been met before such hearsay testimony may be admitted into evidence pursuant to section 115 — 10.

We conclude therefore that this cause must be remanded for the purpose of having the trial court state on the record the specific factors which led to its determination that the safeguards of reliability of S.W.’s hearsay statement have been met.

Next, defendant contends that he was not found guilty beyond a reasonable doubt. Defendant was charged with two counts of aggravated sexual abuse. A person commits aggravated sexual abuse if he was 17 years of age or over and commits an act of sexual conduct with a victim who was under 13 years of age when the act was committed. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 16(c)(l)(i)-) An act of sexual conduct is defined as any intentional touching or fondling by the victim or the accused, either directly or through clothing, of the sex organs, anus or breast of the victim or the accused or any part of the body of a child under 13 years of age, for the purpose of sexual gratification or arousal of the victim or the accused. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 12(e).) Defendant here was charged in the indictment with rubbing S.W.’s pubic area with his hand and knowingly rubbing S.W.’s buttocks with his penis.

Defendant contends that S.W.’s testimony was ambiguous, unclear, required extensive leading questions by the prosecutor and was badly impeached by her prior statements. Defendant concludes that S.W.’s testimony was insufficient as a matter of law to support his conviction.

The resolution of factual disputes and the assessment of the credibility of the witnesses are for the trier of fact. (Roy, 201 Ill. App. 3d at 185.) The reviewing court will not reverse a conviction unless the evidence is so unsatisfactory or improbable that a reasonable doubt of defendant’s guilt remains. (201 Ill. App. 3d at 185.) However, in cases involving sex offenses the reviewing court has a special duty to scrutinize closely, the evidence. People v. Nicholl (1991), 210 Ill. App. 3d 1001, 1012.

Before the jury, S.W. testified that defendant showed her a “naked picture,” that he touched her on her behind with his leg which she demonstrated using the dolls and having the pubic area of the male doll rub up against the buttocks area of the female doll. She also testified that defendant exposed “the area between his legs” to her. On cross-examination, S.W. stated that the prosecutor told her where the places were on the doll that defendant had touched her. She did not remember telling her aunts that defendant had not touched her, but she did tell her Aunt Bianca that defendant had just bumped her. The evidence of defendant’s rubbing S.W.’s pubic area came from the testimony of Officer Henriquez’ testimony as to S.W.’s out-of-court statement to him. While defendant’s sisters testified that S.W. told them that defendant did not touch her, his mother testified that S.W. told David Asma that defendant bumped her.

The resolution of this issue revolves around the credibility of the witnesses which is reserved to the trier of fact. (.Nicholl, 210 Ill. App. at 1013.) S.W’s testimony as to being bumped by the defendant was consistent. It was for the jury in this case to determine if S.W.’s out-of-court statement was sufficient to find the defendant guilty of rubbing her pubic area in light of her failure to testify to such incident and the testimony of the other witnesses who stated that S.W. denied that defendant touched her. We cannot say that, when reviewing the evidence in the light most favorable to the State, no rational trier of fact would have found the defendant guilty beyond a reasonable doubt.

Next, defendant contends that the trial court committed evidentiary errors which require that the defendant receive a new trial. Specifically, defendant argues that the trial court erroneously allowed David W. to testify as to the contents of his son’s conversation with S.W.; that the trial court erroneously permitted the prosecutor to cross-examine Bianca Jones as to what S.W. meant by the term “privacy”; and that the trial court erred in limiting the defendant’s questioning of Bianca as to S.W.’s proclivity toward exaggeration.

We agree with the defendant that David W.’s testimony concerning the content of his telephone conversation with his son was inadmissible hearsay. (See People v. Fuelner (1982), 104 Ill. App. 3d 340 (doctor’s testimony that the victim’s mother told him the victim had been raped held inadmissible hearsay).) In People v. Escobar (1979), 77 Ill. App. 3d 169, a witness testified that he gave a bullet shell to the police because he had been told shells had been found in the defendant’s car. Although the State argued that the testimony was introduced not as hearsay but to explain why the witness brought the shell to the police, the reviewing court concluded that the danger that the jury would misuse the evidence was so much greater than the value of detailing why the witness thought the shells were important that the testimony should have been excluded. Escobar, 77 Ill. App. 3d at 177.

The admission of hearsay testimony does not automatically warrant reversal. (People v. White (1985), 134 Ill. App. 3d 262, 283.) The admission of hearsay evidence is harmless error where there is no reasonable probability that the jury would have acquitted the defendant if the hearsay evidence had been excluded. (White, 134 Ill App. 3d at 283.) Prior to the testimony, the jury was instructed that the testimony was not to be considered proof that S.W. had been molested but only as a motivation for David W.’s conduct following the conversation. We are of the opinion that, given the evidence in this case together with the admonition to the jury, the defendant’s conviction in this case was not due to the admission of this particular hearsay testimony.

Defendant argues that the trial court erred in permitting Bianca Jones to testify as to what S.W. meant when she referred to a “man’s privacy.” In People v. Linkogle (1977), 54 Ill. App. 3d 830, the victim’s mother was permitted to testify that when the victim stated that the defendant had “wiggled his thing,” the victim meant an up and down motion on his penis. The reviewing court determined that the mother’s testimony was reversible error stating as follows:

“As a general rule, testimony as to the witness’ opinion is not admissible into evidence. The testimony of the witness must be confined to statements of fact of which the witness has personal knowledge. [Citation.] In some instances, of course, nonexpert opinion evidence is allowed. Nevertheless, a witness may not state his opinion or conclusion concerning an out-of-court statement, but is required to recite the statement as nearly as possible. [Citations.] Even more importantly, where the statement has been made in the presence of the jury, a second witness who testifies to what was meant by the first witness is usurping the function of the jury. It is the province of the jury to make inferences from and interpret the statements of the witnesses, having had an opportunity to hear the testimony and observe the demeanor of each witness. As a result, we believe the trial court committed reversible error by allowing Mrs. Hurlay to testify as to what Beth meant when she testified.” Linkogle, 54 Ill. App. 3d at 833.

While we agree with the defendant that it was error to allow Bianca to testify as to what S.W. meant when she referred to “privacy,” it is not reversible error under the facts of this case. Prior to Bianca’s testimony, S.W. had already demonstrated using the dolls that defendant had bumped her buttocks with his pubic area. She also testified that defendant exposed his “privates” to her by which she testified she meant the area between his legs. During the cross-examination of Bianca, the following colloquy took place:

“Q. And when [S.W.] talks about a man’s privacy, she is referring to his penis; isn’t she?
A. Yes.
MR. APPELBAUM (defense counsel): Objection.
THE COURT: Sustained.
BY MR. CHANCEY (prosecutor):
Q. Well, do you know what she means when she refers to a man’s privacy?
A. Yes, but I also asked her. Yes.
Q. She told you that it was his privacy that bumped up?
A. Yes.
Q. It was against her backside?
A. Yes.
Q. Do you know when she talks about a man’s privacy she is referring to his penis?
A. Yes.”

The record reveals that while the defendant’s initial objection to what S.W. meant by “privacy” was sustained, defendant failed to object when the question was asked a second time. The preservation of error requires that an objection be made to the complained-of testimony as well as preserving it in a post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 186.) Further, unlike the victim in Linkogle, S.W. had already identified what area of defendant’s body she was referring to both in testimony and by way of demonstration with the dolls. Bianca Jones’ testimony in that regard was mere surplusage.

Finally, defendant argues that it was error for the trial court to limit his questioning of Bianca Jones as to S.W.’s proclivity for exaggeration. After the trial court sustained the State’s objection, defense counsel did not make an offer of proof and did not attempt to pursue that line of questioning.

As we have previously stated, credibility is a key issue in this case. Whether S.W. was prone to exaggerate things, possessed a vivid imagination or even on occasion told lies would be of vital importance to the jury whose duty it was in this case to sort out the truth. (See People v. Morgan (1977), 69 Ill. 2d 200 (defendant’s conviction reversed where victim’s credibility and veracity were seriously brought in question by her teacher’s testimony that the victim had given her a different version of the incident and by indications that the victim had the propensity to fabricate stories).) There being no physical evidence to substantiate defendant’s touching or bumping of S.W., her credibility becomes the main focus even in light of the defendant’s confession. See People v. Lambert (1984), 104 Ill. 2d 375 (defendant’s confession not sufficiently corroborated by independent evidence).

The failure of defense counsel to provide an offer of proof does not waive this issue as it would have been clear to the trial court that the testimony sought was to go to S.W.’s credibility. (People v. Christen (1980), 82 Ill. App. 3d 192, 196.) The trial court may have expected defense counsel to rephrase his question, but instead defense counsel abandoned this line of questioning. (Christen, 82 Ill. App. 3d at 196-97.) Given the importance of S.W.’s credibility to the resolution of defendant’s guilt or innocence in this case, we conclude that defendant must receive a new trial.

Next, defendant contends that he did not receive a fair trial due to certain statements made by the prosecutor during closing argument, specifically that to S.W. touching and bumping were not the same thing; that S.W.’s statements to her aunts and grandmother may have been unconsciously influenced by their concern for the defendant; and the suggestion on rebuttal that David Asma’s testimony concerning the statements of S.W. and Polly W. was influenced by the fact he worked for the public defender’s office.

A defendant is entitled to a trial free from improper prosecutorial argument, but a conviction will only be reversed if such remarks were material to the conviction and resulted in substantial prejudice (People v. Witted (1979), 79 Ill. App. 3d 156, 165; People v. Franklin (1976), 42 Ill. App. 3d 408, 415), and each case must be decided on its own facts. (People v. Bigsby (1977), 52 Ill. App. 3d 277, 281.) Generally, a prosecutor is allowed great latitude in making a closing argument. (People v. Jordan (1990), 205 Ill. App. 3d 116, 122.) However, a prosecutor may not, inter alia, make arguments not based upon the evidence. (Witted, 79 Ill. App. 3d at 165-66.) The entire context in which a prosecutor offers statements as well as defendant’s closing argument must be considered. People v. Phillips (1989), 127 Ill. 2d 499, 524.

Defendant failed to object to the portions of the State’s arguments of which he now complains. Therefore, they are waived. (Phillips, 127 Ill. 2d at 526.) Moreover, the jury was instructed that the closing arguments were not evidence. Finally, we are satisfied that the complained-of remarks did not sink to the level of the remarks which caused reversal in the cases relied on by the defendant. People v. Emerson (1983), 97 Ill. 2d 487 (prosecutor’s remarks suggested that defense counsel had created defenses and had suborned perjury); People v. Starks (1983), 116 Ill. App. 3d 384 (prosecutor asserted defense counsel engaged in trickery or misrepresentation to gain an acquittal); People v. Escobar (1979), 77 Ill. App. 3d 169 (prosecutor’s introduction of “new evidence” during rebuttal portion of closing arguments reversible error).

We conclude that the prosecutor’s comments during closing argument did not deprive the defendant of a fair trial.

Finally, defendant contends that he received ineffective assistance of counsel. Defendant argues that defense counsel did not offer evidence at trial of the circumstances of defendant’s confession; that he failed to make an offer of proof during Bianca Jones’ testimony; failed to object to the prosecutor’s improper comments during closing arguments; and that his cross-examination of David W. led to the introduction of S.W.’s hearsay statement that defendant had exposed himself and rubbed up against her behind.

We have previously determined that defense counsel’s failure to make an offer of proof did not waive the issue as to Bianca Jones’ testimony. Despite defense counsel’s failure to object, we reviewed the complained-of statements made during closing argument and concluded that they did not deprive the defendant of a fair trial.

Defendant did not testify at trial thus rendering impossible any effort to show the circumstances of his confession from his point of view. The trial court denied defendant’s motion to suppress the confession because he found Officer Henriquez’ testimony more credible than that of the defendant. Defense counsel did cross-examine Officer Henriquez at trial which revealed that Henriquez did not tape-record or videotape the confession; that he, not the defendant, wrote out the statement which defendant signed; and that his case against the defendant would be better if he had an inculpatory statement from the defendant. Moreover, there is a strong presumption that the challenged actions of trial counsel were the product of sound trial strategy and not incompetence. (People v. Steidl (1991), 142 Ill. 2d 204, 241.) The recounting of the circumstances of the defendant’s confession would only serve to remind the jury that defendant had confessed, and defense counsel’s choice not to bring up defendant’s confession is certainly defensible as trial strategy. Finally, while defense counsel’s cross-examination of David W. did elicit that S.W. told him that defendant bumped her, that evidence was testified to by defense witnesses, as well as by the State’s witnesses. Therefore, we are of the opinion that none of these alleged instances of incompetency or their cumulative effect led to the defendant’s conviction. People v. Albanese (1984), 104 Ill. 2d 504, 525.

In light of the conclusions we reach in this case, defendant’s conviction is reversed, and this cause is remanded for a new trial. In the event the State wishes again to introduce S.W.’s hearsay statement to Officer Henriquez, a new hearing under section 115 — 10 need not be held. However, as we previously stated above, the trial court shall state on the record the specific factors which led to its determination that the safeguards of reliability of S.W.’s hearsay statement have been met.

The judgment of the circuit court is reversed, and the cause is remanded with directions.

Reversed and remanded with directions.

McLAREN, J., concurs.

JUSTICE DUNN,

dissenting:

I respectfully dissent because I disagree with the majority’s resolution of two issues. First of all, I believe that, by failing to make an offer of proof, defendant waived the issue of whether the trial court erred by sustaining the State’s objection when defense counsel asked Bianca Jones if she had ever known S.W. to exaggerate the truth to her.

In general, an offer of proof must be made in order to preserve the issue of wrongful exclusion of evidence for review. (People v. Cobb (1989), 186 Ill. App. 3d 898, 905.) If the testimony to be elicited is obviously relevant and material, no offer of proof is required. (Cobb, 186 Ill. App. 3d at 905.) A detailed and specific offer of proof is required, however, if it is not clear what the testimony of the witness will be or what basis the witness will have for so testifying. 186 Ill. App. 3d at 905.

In Cobb, this court held that, because the defendant failed to make a specific, detailed offer of proof, he waived the issue of whether the trial court erred by excluding a police officer’s testimony as to a certain matter. (186 Ill. App. 3d at 905-06.) In so holding, this court noted that it could not determine from the record exactly what the substance of the officer’s testimony would have been or the basis of that testimony. (186 Ill. App. 3d at 905.) We further stated that it was conceivable that the officer’s testimony could have been based on what others had told him and would have therefore been inadmissible hearsay. (186 Ill. App. 3d at 905-06.) It was thus impossible to determine from the record whether the exclusion of the testimony constituted reversible error. 186 Ill. App. 3d at 906.

The same is true in the case at bar. This court has no way of knowing how Bianca Jones would have responded to the question at issue here. Thus, it is impossible to determine whether defendant was prejudiced by the trial court’s ruling. (See People v. Moreno (1983), 116 Ill. App. 3d 1, 6.) It is also possible, as it was in Cobb, that the basis for the testimony could have been a conversation with another person. Jones may have testified that S.W. told her something and she found out from someone else that it was not true. This would have constituted inadmissible hearsay. Because defendant’s failure to make an offer of proof makes it impossible to determine whether reversible error occurred, I would hold that he has waived the issue of whether the trial court erred by sustaining the objection to the question his attorney asked Bianca Jones.

I also disagree with the majority’s conclusion that a remand is necessary for the purpose of having the trial court articulate specific factors which led to its conclusion that S.W.’s hearsay statement to Officer Henriquez should be admitted into evidence under section 115 — 10 of the Code (Ill. Rev. Stat. 1991, ch. 38, par. 115 — 10). Under section 115 — 10(b)(l), such a statement is admissible if the trial court “finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability.” (Ill. Rev. Stat. 1991, ch. 38, par. 115— 10(b)(l).) The trial court did make such a finding in this case. The statute does not require trial judges to articulate specific reasons in support of such findings.

The majority concludes that a remand is necessary to ensure that the trial court’s admission of S.W.’s hearsay statement was consistent with the United States Supreme Court’s opinion in Idaho v. Wright (1990), 497 U.S. 805, 111 L. Ed. 2d 638, 110 S. Ct. 3139, which was issued after the trial in this case. The standard in section 115 — 10, which requires “sufficient safeguards of reliability” based upon the “time, content, and circumstances of the statement,” is in my view effectively the same as the Wright standard of “particularized guarantees of trustworthiness” based solely upon the circumstances surrounding the statement (Wright, 497 U.S. at 822, 111 L. Ed. 2d at 656, 110 S. Ct. at 3149). Section 115 — 10, like the court’s opinion in Wright, requires trial courts to focus solely upon the circumstances surrounding the statement and to determine whether those circumstances make it particularly likely that the declarant was telling the truth when she made the statement. Because the Illinois standard applied here was essentially the same as the one set forth in Wright, I do not believe it is necessary to remand the case in order to ensure compliance with Wright.

A trial court’s finding after a section 115 — 10(b)(l) hearing should only be overturned on appeal if it was contrary to the manifest weight of the evidence. (People v. Deavers (1991), 220 Ill. App. 3d 1057, 1068.) In the case at bar, S.W. had no motive to fabricate, and she did not use terminology that would be unexpected of a child her age. (See Wright, 497 U.S. at 821-22, 111 L. Ed. 2d at 656, 110 S. Ct. at 3150.) Furthermore, although Officer Henriquez did question S.W., he testified that the questions were open-ended rather than leading. (See People v. Edwards (1992), 224 Ill. App. 3d 1017, 1029.) Finally, the statement was made only a few hours after the alleged incident. In light of these factors, the trial court’s decision to admit testimony about the statement was not against the manifest weight of the evidence and should have been affirmed.

For the above reasons, I would affirm defendant’s conviction. I, therefore, respectfully dissent.


source: Caselaw Access Project

author: JUSTICE LORENZ JUSTICE GORDON,

license: Public Domain

text:
    RONALD MARSHALL, Plaintiff-Appellee, v. TAYLOR-WHARTON COMPANY, Defendant-Appellant.
    First District (5th Division)
    No. 1—90—0210
    Opinion filed June 30, 1992.
    Rehearing denied September 30, 1992.

      GORDON, J., specially concurring.
    Arnstein & Lehr, of Chicago, for appellant.
    Bernard Nevoral and David L. Cwik, both of Bernard Nevoral & Associates, of Chicago (Jamis T. Ferrini, of Clausen, Miller, Gorman, Caffrey & Witous, P.C., of counsel), for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff, Ronald Marshall, filed suit alleging that defendant, Taylor-Wharton Company, defectively manufactured and designed a tractor-trailer which rolled over causing plaintiff severe injuries. After trial, the jury awarded plaintiff an $8.2 million verdict. Defendant appealed. We consider: (1) whether, in light of Supreme Court Rule 220(b) (134 Ill. 2d R. 220(b)), the trial court erred denying defendant’s motion to continue the trial date to at least 60 days after defendant completed the discovery of plaintiff’s last-minute substitute expert; and (2) whether, in light of Supreme Court Rule 220(d) (134 Ill. 2d R. 220(d)), the testimony of plaintiff’s expert at trial went beyond the fair scope of the facts known or opinions disclosed during the discovery proceedings.

We reverse and remand for a new trial.

Relevant to our disposition are the following facts as disclosed by the record. On September 12, 1978, plaintiff sustained injuries while driving a tractor-trailer truck owned by his employer, Chemtron, Inc. The trailer portion of the truck contained 66 tubes used to transport hydrogen gas. The tubes were 24 feet long, spaced apart with special pads, and were connected to bulkheads protruding from plates connected to the end walls of the trailer.

While in the midst of a left turn at an intersection, plaintiff swerved to avoid an ambulance which approached from behind. The trailer rolled over dragging the tractor with it. The accident rendered the plaintiff a quadriplegic.

On August 18, 1980, plaintiff filed his complaint naming as defendants: Taylor-Wharton Company, the manufacturer of the trailer; International Harvester Company, the manufacturer of the truck; and Hickey-Vandenberg Ambulance, Inc., the ambulance company that arrived on the scene. Taylor-Wharton and Hickey-Vandenberg joined Chemtron as a third-party defendant. Plaintiff settled with HickeyVandenberg and International Harvester prior to trial. Chemtron was dismissed pursuant to an agreement concerning workers’ compensation.

Plaintiff’s case did not go to trial until July 11, 1989, nine years after the complaint was filed. The progress of the case was typified by the following. On December 17, 1984, the court ordered that all discovery be closed on April 11, 1985. On October 25, 1985, the court assigned the case for pretrial hearings. Pretrial hearings were then scheduled and continued on three separate occasions. On February 24, 1987, the court ordered that the case be returned to the trial call. On October 27, 1987, plaintiff filed a motion to advance the case to trial. That motion was transferred and then continued to December 18, 1987. On April 18, 1989, the court entered an order assigning the case for trial to Judge Levin. On that same day, plaintiff moved for a change of venue and two days later the case was assigned to Presiding Judge Cawley.

Also on April 18, 1989, plaintiff notified defendant by letter that his expert witness, Dr. Jack Clemens, would be unable to testify because of an eye ailment. The record reflects that plaintiff had disclosed Dr. Clemens in 1987 and defendant had deposed Dr. Clemens first on February 27, 1989, and again on April 10, 1989, just 10 days prior to the receipt of plaintiff’s letter. Neither Dr. Clemens nor plaintiff’s counsel mentioned the eye ailment at the depositions. At any rate, in early May, plaintiff retained Dr. Ronald Ruhl, a consulting engineer and adjunct professor at the University of Illinois, as a substitute expert. Dr. Ruhl began working on the case on May 24 after receiving Dr. Clemens’ file.

On May 23 defendant moved the court to bar the testimony of Dr. Ruhl pursuant to Supreme Court Rule 220(b) (134 Ill. 2d R. 220(b)). This hearing was not transcribed. The court denied the motion and ordered the following: that Dr. Ruhl be presented for deposition within two weeks; that defendant answer plaintiff’s Rule 220 interrogatories and supplemental production request within seven days of the taking of the deposition; and that defendant produce its own expert, Dr. Uzgiris, for Dr. Ruhl within three days thereafter. Trial was tentatively set for June 12.

Defendant proceeded to depose Dr. Ruhl twice, first on June 8 and again on June 22. Defendant’s expert, Dr. Uzgiris, was in attendance during both depositions. Dr. Ruhl had reviewed all of Dr. Clemens’ work and read plaintiff’s deposition testimony prior to the depositions.

At the June 8 deposition, Dr. Ruhl testified that he had not yet made his own calculations or measurements. He based his testimony on the deposition testimony of plaintiff and on information given to him by plaintiff's counsel. Dr. Ruhl remarked that plaintiff’s deposition testimony provided “very reasonable numbers.” It was Dr. Ruhl’s opinion that the “torsional rigidity” and the “tube banding system” of the trailer caused the trailer to be unreasonably dangerous. At the end of the deposition, plaintiff’s counsel stated, “just for the record, Dr. Ruhl has indicated he would like to do certain things, and we are going to ask him to do whatever he’d like to do. So at some point when he finishes his calculations we will let you know that and go further.” Three days later, defendant received 26 pages of Dr. Ruhl’s calculations.

Before Dr. Ruhl’s (second) June 22 deposition, the parties convened for several hearings before the court. On June 14 plaintiff argued numerous motions in limine. Plaintiff moved to bar, in part, evidence that defendant had not already produced pursuant to plaintiff’s supplemental discovery requests. Plaintiff argued that discovery had been going on for several years and that any new evidence that defendant might produce would constitute unfair surprise to plaintiff.

Also on June 14 defendant filed (but did not argue) a memorandum in support of its May 23 motion to bar the testimony of Dr. Ruhl pursuant to Rule 220. The memorandum stated that after reviewing Dr. Ruhl’s deposition and the 26 pages of calculations there was evidence of a substantial shift in the theories between Dr. Ruhl and Dr. Clemens. In fact, Dr. Ruhl had criticized portions of Dr. Clemens’ theory. Defendant argued that Dr. Clemens’ eye ailment was “merely a pretext to allow plaintiff the opportunity to create a new theory of liability on the eve of trial.”

On the following Monday, June 16, the court held a hearing in which the parties and the court argued extensively over the merits of defendant’s motion to bar Dr. Ruhl. First, plaintiff produced Dr. Clemens to testify about the legitimacy of his eye ailment. Dr. Clemens testified that he had numerous operations on both of his eyes “some years back” and at subsequent intervals “had completely lost vision in both eyes.” His eye problems had persisted. He would likely have additional operations in the future. If Dr. Clemens testified at trial, he believed he would have great difficulty reading from the necessary documents.

Defendant did not cross-examine Dr. Clemens. Instead, defendant argued that, based on the shift in the theories and the complexity of Dr. Ruhl’s 26 pages of calculations, Dr. Ruhl should be barred. During the hearing, plaintiff’s counsel chastised defendant’s expert who, as an engineer, was supposed to be able to understand the calculations. The court denied the request to bar Dr. Ruhl stating:

“No, I will give you another alternative. I’ll give you time for your expert to get ready. You’re telling me you’re disadvantaged. I want the record to be clear about this. You’re saying on the eve of trial — now, we can call today the eve of trial or we can call three or four weeks ago the eve of trial — I already ruled that Ruhl could substitute for Clemens due to the problem Clemens has, so that’s not today. I also stated *** that if we got a new expert with new theories *** and you were at a disadvantage, I indicated that I would not force you at that point to go to trial. And now what you’re showing me is that Ruhl didn’t parrot Clemens. That’s all you’re showing, right? I already said that Ruhl could testify. I have no doubt in my mind Ruhl can testify in the case. I am not going to bar Ruhl from testifying. It’s merely you are disadvantaged? *** And if that’s the case, I’ll give you the time.”

Defendant conferred with his expert and then, in light of the 60-day requirement of Supreme Court Rule 220(b), requested a trial date subsequent to August 15. The court responded, “let me tell you, gentlemen, I am talking about 24 hours, 48 hours.” Defendant maintained that he had a right to at least a 60-day continuance:

“And now in the twelfth hour, we get his calculations, we get a new theory, and that is in complete violation of Rule 220. Rule 220 makes it mandatory that an expert has to be disclosed *** before 60 days, and we’re entitled to have his opinion. And for us, one day won’t do it, two days won’t do it, and respectfully, Your Honor, it would be error to allow this witness to come in and testify in this case at this juncture where there is a complete change. And what we respectfully request is a continuance so that we will be able to properly prepare to meet this testimony in light of Rule 220. And we are asking the court to set the case — to reset it for trial subsequent to August 15, and we’re entitled to it.”

The court recognized that defendant desired to preserve the record on this issue. However, the court had already arranged the courtroom for the special needs of the quadriplegic plaintiff. Therefore, the court denied defendant’s request for the 60-day continuance.

The court decided that it would take the case on a day-by-day basis. The court held a separate hearing to determine the degree to which the opinions of Dr. Ruhl and Dr. Clemens differed and concluded that there was a “sufficient shift” in the theories which entitled defendant to additional time. The court stated it would continue the case “keeping in light we’re trying to go ahead with a nine-year-old case.” The court then gave the parties two days to try to settle the case. In lieu of settlement, the court decided on a July 11 trial date which amounted to approximately a three-week continuance. Before the court adjourned, it asked defendant’s expert, Dr. Uzgiris, about the acceptability of the three-week continuance. Each time Dr. Uzgiris responded, “[It] makes sense.”

At the (second) June 22 deposition, Dr. Ruhl disclosed that parts of his testimony at trial would depend on the testimony of the witnesses at trial. Plaintiff’s counsel also stated:

“Just so we are clear on this, as the case develops I don’t know what the witnesses are going to say exactly, but based on what the witnesses testified, and I am going to offer or provide transcripts of their testimony to Professor Ruhl, and so that we don’t have another delay we will use visual aides to explain this highly technical terminology to the jury and we will use a computerized CAT system to visually explain *** what he is going to testify to today. So you are going to have a computerized animation of the trailer going over or the behavior of the trailer at the time of the accident.”

Dr. Ruhl explained that he needed specific testimony in order to implement the computerized animation: “I want to hear from [plaintiff] precisely what motion he input into the vehicle through the steering wheel; where he did it; and in what time frame.” According to Dr. Ruhl, plaintiff’s deposition testimony did not make sense from “an engineering standpoint.” Dr. Ruhl explained further: “At the time of [plaintiff’s] deposition, the issues that I raised were probably not being discussed to the extent that they should have been.” Dr. Ruhl needed more information in order to compute a variety of factors including the radius and articulation angle of the turn in the intersection. Finally, Dr. Ruhl stated that he intended to “update [his] analysis based on testimony.”

On June 30, the parties convened for another hearing before trial. Defendant disclosed two last-minute witnesses who had knowledge of the design, manufacture or sale of the trailer. Plaintiff complained that he was “snowballed with two witnesses on the eve of trial.” Defendant responded that these witnesses were necessary because Dr. Ruhl had changed and complicated the theory of the case. The court expressed its displeasure with these developments but ruled that one of defendant’s witnesses would be allowed to testify.

Before addressing the trial testimony, we note that plaintiff’s deposition transcripts were not made part of the record.

On July 13 and 14, plaintiff testified at trial. On direct examination plaintiff described the type of truck he was driving, the number of gears and corresponding speeds for operation, and the types of steering and braking mechanisms. Plaintiff then described his delivery assignment on the day of his injury including the route which brought him to the site of the accident. Plaintiff stated that the truck was in fifth gear as he approached the intersection; the traffic light was green; there were two automobiles in front of him; he shifted down to fourth gear in preparation for his left-hand turn; at that point he was travelling “about 18 or 20 miles an hour”; right before he made his turn he shifted down to third gear, which reduced his speed to approximately 10 miles an hour; he was still in third gear when he passed the cross-walk; when he heard the siren of the ambulance he “cut the wheel slightly to the right” in order to get out of the way. Plaintiff stated he could not tell if he went onto the sidewalk as well as the curb because “that was too fast, too fast of a thing.” Plaintiff summarized:

“I didn’t know if the ambulance would proceed south or if it would try to proceed east on 106th Street, but at approximately right here [indicating], I brushed the curb and went up and then I jerked the wheel back over to this way, straightened the trailer out, and at that point I felt the tug and everything went over. Now, that’s to the best of my recollection what happened.”

On cross-examination, plaintiff testified that the accident “took place in a matter of seconds.” He described the turn of the steering wheel as a “sudden, real jerk type turn.” On redirect, plaintiff stated that the three words he would use to describe the maneuvers of the wheel were “turn,” “pull,” and “jerk.” At various points in plaintiff’s testimony, plaintiff’s counsel read excerpts of plaintiff’s deposition testimony. These excerpts did not indicate that plaintiff’s trial testimony was more specific than plaintiff’s deposition testimony.

On July 17, three days later, Dr. Ruhl testified at trial. Dr. Ruhl stated that he relied on plaintiff’s trial testimony to prepare him for his analysis. In his opinion “the design of the trailer dynamics” was unreasonably dangerous. In sum, Dr. Ruhl believed that the design had three problems: (1) the springing system was too soft; (2) the frame was not stiff enough; and (3) the load itself lacked torsional rigidity, i.e., it did not work with the frame.

Defendant’s first Rule 220 objection to Dr. Ruhl’s testimony occurred when plaintiff’s counsel produced two sample plates (exhibits 79 and 80) which Dr. Ruhl intended to use to criticize the method to which the tubes were affixed to the bulkheads. Defendant stated that the exhibits had never been disclosed. Plaintiff’s counsel explained that “I didn’t tell them because I didn’t know this until Professor Ruhl brought it down.” Plaintiff argued further, relying on Foster v. Devilbiss Co. (1988), 174 Ill. App. 3d 359, 529 N.E.2d 581, that the exhibits were merely demonstrative evidence which did not require disclosure. Dr. Ruhl then attempted to use other sample plates (exhibits 80A and 80B) to show a design alternative on how the tubes could have been better affixed to improve torsional rigidity. Defendant objected because, although Dr. Ruhl had criticized in his deposition the manner in which the tubes were affixed, Dr. Ruhl never discussed any design alternative. Plaintiff’s counsel argued that defendant’s expert was present during Dr. Ruhl’s deposition and that it was defendant’s fault for not asking about any design alternatives. Defendant responded that Rule 220 imposed an affirmative duty to disclose the opinions as well as the bases for the opinions that will be used at trial. The trial court denied defendant’s objections.

Defendant objected again when plaintiff’s counsel attempted to introduce documents derived from the computer simulation of the accident. Although plaintiff’s counsel had previously indicated that he would use a computer simulation, defendant was supposed to have been able to look at the documents before trial. Defendant saw the documents for the first time as they were shown to the jury. Plaintiff’s counsel explained that the documents did not become available until the plaintiff had finished testifying. Defendant questioned why plaintiff’s counsel was not able to obtain the information from his own client prior to trial. The court stated: “We are past that. Do you want some time to see what they are giving you?” Defendant looked at the documents briefly in front of the jury before Dr. Ruhl’s testimony continued.

Dr. Ruhl next testified at length and in scientific detail concerning the factors leading up to the roll-over. Defendant objected again:

“This is all new. We were never informed as to the times he is testifying about now, and the degrees, 15 degrees, minus 5 degrees, minus 13 degrees. This is all new stuff. We are doing discovery during trial.”

Plaintiff’s counsel responded:

“It came from the witnesses at trial and from Ronald Marshall himself. *** And although we had depositions of the witnesses and we have depositions of Ronald Marshall, the final simulation could not be prepared certainly because I surely can’t use a discovery deposition as evidence, *** that I believe is an ill founded motion.
***
I can’t use a discovery deposition to have this man spend a fortune preparing a computer assisted schematic until the actual evidence comes in.”

Defendant again inquired why plaintiff’s counsel did not obtain the necessary information from his own client before trial. The court and counsel then engaged in a lengthy sidebar about the viability of defendant’s Rule 220 objections, whether Rule 220 recognized a distinction between an expert’s opinion and the facts supporting the opinion, the degree to which Dr. Ruhl’s testimony included specific undisclosed information, and how the parties would proceed with the case. The court overruled defendant’s objections on the ground that Dr. Ruhl’s testimony was based on plaintiff’s testimony. Defendant then informed the court that in order to avoid repeated sidebars it would reserve the right to make a “continuing objection” based on Rule 220.

The next day defendant moved for a mistrial based on Dr. Ruhl’s testimony. The court denied the motion. The record reflects a lengthy discussion ensued concerning defendant’s “continuing objection.” As Dr. Ruhl resumed his testimony using the computer simulation, defendant objected again several times. The court reserved ruling on the objections. Finally, plaintiff’s counsel attempted to introduce a computer simulated drawing entitled “Tilt of Trailer During Turns.” Defendant had never seen the drawing. Plaintiff argued that the drawing was only demonstrative. The court sustained the objection to this drawing.

Dr. Ruhl continued to testify by describing safe and feasible design alternatives to the design features of the trailer which rolled over. Defendant objected on the ground that Dr. Ruhl had never disclosed these design alternatives. The court sustained some of these objections but overruled others on the ground that defendant could not claim surprise.

This completed Dr. Ruhl’s direct examination. We will not, here, provide a recantation of Dr. Ruhl’s cross-examination.

After the presentation of all of the evidence, the jury found defendant liable and awarded plaintiff $8.2 million.

Defendant filed a post-trial motion arguing defendant was entitled to a new trial pursuant to violations of Rule 220. The trial court stated that neither party had wanted the case returned to the trial call. Therefore, the court held that Rule 220 did not apply because the parties had simply attempted to determine how much time was needed before the trial started.

Defendant filed this appeal.

Opinion

We begin by stating that the trial court’s determination during the post-trial motion that Rule 220 did not apply is unsupported by the record. We have carefully searched the record and can find no evidence that the trial proceeded pursuant to an agreement between the parties or that defendant (or defendant’s expert) in any way waived Rule 220’s application. Defendant filed timely motions under under Rule 220 and continued to preserve the record throughout the trial proceedings.

Although it is not a dispositive issue in the instant case, we first address whether the trial court erred by not disqualifying Dr. Ruhl in light of his last-minute disclosure. There has been a conflict in the appellate case law over the degree to which a trial court may exercise discretion in choosing a sanction pursuant to a violation of Rule 220. Some cases hold that Rule 220 is tied to Rule 219, and therefore the trial court may exercise its normal discretion in selecting from the variety of sanctions available under Rule 219. (E.g., Kosinski v. Inland Steel Co. (1989), 192 Ill. App. 3d 1017, 549 N.E.2d 784.) These cases rely, in part on the following language in Rule 219(c):

“If a party, or any person at the instance of or in collusion with a party, unreasonably refuses to comply with any provision of part E of article II [which includes Rule 220] of the rules of this court *** or fails to comply with any order entered under these rules, the court, on motion, may enter, in addition to remedies elsewhere specifically provided, such orders as are just, including, among others, the following.” (134 Ill. 2d R. 219(c).)

The rule then lists six possible sanctions. Furthermore, the Committee Comments for Rule 219 provide: “Subparagraph (c) was amended in 1985 to make it clear that the sanctions provided for therein applied to violations of new Rules 220 and 222 ***.” 134 Ill. 2d R. 219, Committee Comments.

Other cases hold that Rule 220(b) itself provides only one sanction, disqualification. These cases rely on the explicit language of Rule 220(b): “Failure to make the disclosure required by this rule or to comply with the discovery contemplated herein will result in disqualification of the expert as a witness.” (134 Ill. 2d R. 220(b).) Therefore, these cases hold that a trial court’s discretion to enter a sanction other than disqualification is severely limited. E.g., Kosinski v. Inland Steel Co. (1989), 192 Ill. App. 3d 1017, 1029, 549 N.E.2d 784 (Jiganti, P.J., specially concurring); Phelps v. O’Malley (1987), 159 Ill. App. 3d 214, 511 N.E.2d 974.

We believe that both approaches are supported by reason. However, we believe the latter of the two approaches is the better. We agree with Justice Jiganti’s specially concurring opinion in Kosinski. There, Justice Jiganti points out that the the prospect of allowing the variety of sanctions under Rule 219(c), including last-minute depositions, would create the very evil sought to be remedied by Rule 220. In terms of defining this “severely limited discretion,” we agree with the court in Phelps, which provided that whenever a trial court determines that an expert witness has not been properly disclosed, the expert should be disbarred from testifying unless to do so would create a manifest injustice. In other words, the trial court should exercise discretion only in determining whether the facts show that disqualification of the expert would create “manifest injustice.”

Here, the record reflects that Dr. Clemens had a severe eye ailment. We will not challenge the severity of the ailment. We add parenthetically that Dr. Clemens, or any other properly disclosed expert, might have had other legitimate excuses for his inability to testify; a severe accident or even death are examples. In these types of situations, it would result in manifest injustice to require a trial court to automatically disqualify a substitute expert witness and thereby deprive a party from presenting expert testimony. Therefore, in light of Dr. Clemens’ severe eye ailment, we hold that the trial court did not abuse its limited discretion in choosing not to disqualify Dr. Ruhl.

We next address the 60-day requirement of Rule 220(b). Specifically, we must address whether the trial court erred denying defendant’s motion to continue the trial date to at least 60 days after defendant completed the discovery of Dr. Ruhl.

Again, we must discuss the role of the trial court’s discretion in applying this requirement. In fact, plaintiff here has argued that the language of Rule 220(b) does not contain any “clear directive” whether the 60-day requirement is mandatory or discretionary. In support thereof, plaintiff cites Illini Aviation, Inc. v. Walden (1987), 161 Ill. App. 3d 345, 514 N.E.2d 551, and Singh v. Air Illinois, Inc. (1988), 165 Ill. App. 3d 923, 520 N.E.2d 852. Plaintiff suggests that the 60-day requirement does not demand rigid, formalistic compliance.

We disagree with the plaintiff. We believe that the express language and clear purpose of Rule 220(b) mandates the completion of discovery no later than 60 days prior to trial. The language of Rule 220(b) is replete with “clear directives.” In addition, the Committee Comments to Rule 220(b) state:

“As a final precaution, however, in the event that the identity of the experts has not theretofore been disclosed, the rule provides that the trial court shall establish a specific schedule under which the experts for all parties must be disclosed, a schedule which insures that all discovery relating to such experts will be concluded not later than 60 days before the date on which the trial court reasonably anticipates that the case will go to trial. The committee is of the opinion that this provides a litigant with ample time within which to decide whether an opinion is sufficiently favorable to his position that he would want to use the person expressing it as a witness. In instances where opinions are not sought until a party approaches an imminent trial, a mandatory and exclusionary cutoff is provided.” (Emphasis added.) (134 Ill. 2d R. 220, Committee Comments.)

Furthermore, the first case cited by plaintiff, Illini Aviation, has been widely discredited. (See Barth v. Reagan (1990), 139 Ill. 2d 399, 564 N.E.2d 1196; Klingler Farms, Inc. v. Effingham Equity, Inc. (1988), 171 Ill. App. 3d 567, 525 N.E.2d 1172; Wehmeier v. U N R Industries, Inc. (1991), 213 Ill. App. 3d 6, 572 N.E.2d 320.) The second case cited by plaintiff, Singh, does not apply because the expert there had been timely disclosed.

We believe that where the 60-day requirement applies, a trial court has no discretion to grant a continuance of less than 60 days. We believe that this adheres to the Committee Comments’ depiction of the 60-day requirement as a “final precaution.” A party is automatically entitled to the protection of the 60-day requirement and does not have to show surprise or prejudice when making the request before the trial court. The court may, of course, exercise its discretion in granting a continuance of greater than 60 days if the facts or the complexities of the issues warrant. Further, if so inclined, a party may waive its right to the 60-day requirement.

In light of all the above, we hold the trial court’s continuance of less than 60 days in the instant case constituted, on its face, a violation of Rule 220(b).

Next, plaintiff argues that assuming Rule 220(b) was violated, defendant must still show on appeal that it was prejudiced in order to obtain a new trial. Plaintiff cites Burke v. 12 Rothschild’s Liquor Mart, Inc. (1991), 209 Ill. App. 3d 192, 568 N.E.2d 80. Other cases, including the Kosinski case we have relied upon above, have indicated that prejudice must be shown on appeal to merit a new trial. Therefore, we will address whether the defendant here was prejudiced. We note as a caveat, however, that assuming trial courts begin to schedule trial dates according to a mandatory application of the 60-day requirement, the number of cases that will be appealed on this issue in the future will become nil.

We find it interesting that plaintiff argues that defendant was not prejudiced by Dr. Ruhl’s last-minute disclosure. Plaintiff filed numerous motions in limine and later objected to the last-minute disclosure of defendant’s two witnesses based on the very fact that the trial had been going on for several years and any new evidence would prejudice plaintiff. We are inclined to believe this prejudice applied to defendant as well.

Plaintiff argues, citing again Burke and Kosinski, that defendant took two depositions of Dr. Ruhl which obviated any surprise or prejudice. However, numerous other courts have expressly held that a deposition taken prior to trial does not cure the surprise or prejudice. (Ashford v. Ziemann (1984), 99 Ill. 2d 353, 459 N.E.2d 940; Phelps v. O’Malley (1987), 159 Ill. App. 3d 214, 511 N.E.2d 974; Hatch v. Golden Rule Insurance Co. (1990), 204 Ill. App. 3d 790, 562 N.E.2d 623; McDonald’s Corp. v. Butler Co. (1987), 158 Ill. App. 3d 902, 511 N.E.2d 912.) Furthermore, the facts in Burke, Kosinski, and other cases cited by plaintiff are clearly distinguishable because none involved a shift in the experts’ theory. In fact, the court in Kosinski expressly cautioned that prejudice would have resulted had the facts presented a shift in the expert’s theory.

Here, the trial court made an express finding that Dr. Ruhl’s testimony constituted a shift in theory. We find this to be compelling evidence that defendant was prejudiced. Plaintiff reminds us, however, that defendant’s expert, Dr. Uzgiris, stated twice to the court that the three-week continuance “made sense.” Plaintiff suggests that defendant was prepared even in light of the shift in theory. We point out that Dr. Uzgiris made these responses only after the request for a continuance of over 60 days was denied by the court.

In addition, several other factors establish that defendant was prejudiced. For example: Dr. Ruhl’s depositions produced many pages of new calculations; by plaintiff’s own admission, Dr. Ruhl’s testimony was “highly technical”; and defendant was not able to investigate significant portions of Dr. Ruhl’s testimony because it was conditioned on plaintiff’s testimony at trial. Under these circumstances, we believe that defendant was not able to thoroughly prepare for trial. Therefore, the trial court’s failure to comply with the 60-day requirement of Rule 220(b) prejudiced defendant.

We understand that the trial court had reservations about continuing a nine-year-old case for another 60 days. We further understand that the trial court made special accommodations for the needs of the quadriplegic plaintiff. Certainly, we are aware of the ramifications that another trial will have on plaintiff. However, defendant was automatically entitled to the protection of the 60-day requirement and the trial court’s violation of the requirement resulted in prejudice to defendant. Therefore, defendant is entitled to a new trial.

We also address whether, in light of Rule 220(d), the testimony of Dr. Ruhl went beyond the fair scope of the facts known or opinions disclosed during the discovery proceedings. Rule 220(d) provides:

“To the extent that facts known or opinions held by an expert have been developed in discovery proceedings through interrogatories, depositions or requests to produce, his direct testimony at trial may not be inconsistent with nor go beyond the fair scope of the facts known or opinions disclosed in such discovery proceedings. However, he shall not be prevented from testifying as to facts or opinions on matters regarding which inquiry was not made in the discovery proceedings.” 134 Ill. 2d R. 220(d).

In the instant case, there are many aspects of Dr. Ruhl’s testimony which bear upon the scope limitation of Rule 220(d). We first focus on plaintiff’s contention that Dr. Ruhl needed “more specific testimony” from the plaintiff at trial in order to complete his opinions. We cannot accept this contention for a variety of reasons. We believe defendant raised a legitimate question as to why plaintiff’s counsel could not obtain the necessary information from his own client. This case had been pending for nine years. It defies reason to believe that plaintiff’s counsel could not obtain the information available from his own client during this nine-year period. Also, there is no merit to the suggestion: “At the time of [plaintiff’s] deposition, the issues that [Dr. Ruhl] raised were probably not being discussed to the extent that they should have been.” Defendant took plaintiff’s deposition before Dr. Ruhl’s last-minute disclosure; defendant cannot be disadvantaged for failing to predict that Dr. Ruhl would need more information to “compute a variety of factors.” In addition, the record simply does not support plaintiff’s contention. We have analyzed plaintiff’s testimony at trial and those portions of plaintiff’s deposition testimony excerpted into the record. Even applying a liberal standard, we can find no appreciable degree of specificity to plaintiff’s trial testimony. The quotes set forth in our statement of facts demonstrate this point. The record simply belies the contention that Dr. Ruhl needed “more specific” testimony to complete his opinion.' In sum, we see no reason why Dr. Ruhl could not have disclosed all of his trial testimony prior to trial.

Specific portions of Dr. Ruhl’s testimony which exceeded the scope of his discovery disclosures included the lengthy and scientifically detailed testimony concerning the factors leading up to the rollover. During this time, plaintiff also introduced documents derived from the computer simulation. Defendant objected:

“This is all new. We were never informed as to the times he is testifying about now, and the degrees, 15 degrees, minus 5 degrees, minus 13 degrees. This is all new stuff. We are doing discovery during trial.”

The record shows that plaintiff did not dispute that this evidence was beyond the scope of Dr. Ruhl’s discovery; rather, plaintiff attempted to justify the admission of the evidence on other grounds:

“Although we had depositions of the witnesses and we have depositions of Ronald Marshall, the final simulation could not be prepared certainly because I surely can’t use a discovery deposition as evidence. *** I can’t use a discovery deposition to have this man spend a fortune preparing a computer assisted schematic until the actual evidence comes in.”

We believe that this justification stands contrary to the fundamental purpose of pretrial discovery and Rule 220. The whole purpose of the scope limitation of Rule 220(d) is to allow parties to prepare for trial based on the disclosures made during discovery. Furthermore, defendant here was entitled to the protection of Rule 220(d) regardless of the cost to plaintiff.

Another specific portion of Dr. Ruhl’s testimony which exceeded the scope of his discovery disclosures included the discussion of design alternatives and the corresponding use of exhibits. Again, plaintiff did not dispute that this evidence was new. Plaintiff argued that the exhibits were merely demonstrative evidence which, under Foster v. Devilbiss Co. (1988), 174 Ill. App. 3d 359, 529 N.E.2d 581, did not fall under the application of Rule 220. We do not believe it is necessary for us to comment on Foster. We do note, however, that these exhibits and other pieces of “demonstrative evidence” used by plaintiff came dangerously close to expert reconstruction evidence.

At any rate, it is clear that Dr. Ruhl’s testimony concerning the design alternatives fell under the application of Rule 220(d). In this regard, plaintiff argued that it was defendant’s fault for not inquiring about the design alternatives during Dr. Ruhl’s depositions. Apparently, plaintiff relied on the language in Rule 220(d): “However, he shall not be prevented from testifying as to facts or opinions on matters regarding which inquiry was not made in the discovery proceedings.” 134 Ill. 2d R. 220(d).

We believe that plaintiff mistakenly relied on this language in this case. Dr. Ruhl’s depositions, taken on the eve of trial, provided a shift in theory, pages of new calculations, and reserved other portions of testimony until after the start of trial. In other words, because of plaintiff’s last-minute substitution of experts, defendant lacked a proper opportunity to make the “inquiries” that plaintiff now relies on. Furthermore, defendant correctly asserted that plaintiff had an affirmative duty to supplement the expert testimony that would be used at trial. In fact, it was especially incumbent upon plaintiff to supplement Dr. Ruhl’s testimony because it constituted a shift in theory. As the Committee Comments state:

“In order to prevent an undisclosed shift in theory or belief the rule requires that a party seasonably submit a modified report or supplemental answers taking into account shifts in the expert’s views.” (134 Ill. 2d R. 220, Committee Comments.)

Furthermore, the Committee Comments state that the “inquiry” language relied upon by plaintiff should “have only limited application in light of the requirement that a party continuously supplement discovery concerning the opinions of such witnesses.” 134 Ill. 2d R. 220, Committee Comments.

In view of the violations of Rule 220(d), we believe the unfairness to defendant was patent. Based on the limited scope of Dr. Ruhl’s discovery disclosures, defendant was practically precluded from preparing a thorough response to Dr. Ruhl’s trial testimony. Certainly, Dr. Ruhl’s trial testimony provided a significant part of plaintiff’s case. As Justice Rizzi has stated: “The day has come when many if not most major cases are decided solely on the basis of the opinions of expert witnesses. The trial bar must therefore be assured that opinions given by expert witnesses in discovery depositions will not be altered, amplified or changed at trial.” (Uhr v. Lutheran General Hospital (1992), 226 Ill. App. 3d 236, 278 (Rizzi, J., dissenting).) It follows that the defendant here is entitled to a new trial.

We believe it is worth pointing out that the violations of both Rules 220(b) and 220(d) compounded the unfairness to defendant. In fact, had the trial court enforced the 60-day requirement of Rule 220(b) many of the problems under Rule 220(d) could have been avoided. Instead, the parties were clearly conducting discovery during trial and much of Dr. Ruhl’s testimony unfairly exceeded the scope of his pretrial discovery. Therefore, we reverse and remand this case for a new trial.

Defendant raised several other issues on appeal which do not require our attention in light of our granting a new trial. In regard to the evidentiary issues concerning the trailer’s safety and handling characteristics, we remind defendant that the trial court has broad discretion on these matters. However, we do not intend to preclude defendant from arguing these evidentiary questions again at the new trial.

Reversed and remanded for a new trial.

MURRAY, J., concurs.

JUSTICE GORDON,

specially concurring:

I am in full agreement that the failure of the court to bar the expert or in the alternative, extend the date of trial, constitutes an abuse of discretion, requiring reversal, a determination which I find to be well warranted under the facts as presented. (See Ashford v. Ziemann (1984), 99 Ill. 2d 353, 459 N.E.2d 940 (six factors to be considered in determining abuse of discretion under Rule 219(c) (134 Ill. 2d R. 219(c)) include surprise to adverse party, prejudicial effect, diligence, nature of testimony, timeliness of objection and good faith of preferring party).) These “Ashford” factors were considered by our supreme court to be appropriate to Rule 220 (134 Ill. 2d R. 220) violations in Barth v. Reagan (1990), 139 Ill. 2d 399, 564 N.E.2d 1196.

I am not persuaded, however, that there is a manifestly greater need to rigidify the range of the trial judge’s discretion in sanctioning the failure to make a timely disclosure of an expert under Rule 220 than there is with respect to other aspects of discovery of equal significance or gravity which are embraced under Rule 219(c). Our supreme court in Barth v. Reagan (1990), 139 Ill. 2d 399, 564 N.E.2d 1196, has expressly abstained from addressing the divergence between the cases maintaining linkage between Rules 220 and 219(c) and those which would eliminate the discretionary latitude which such linkage provides stating, “While plaintiff correctly notes the conflict on this issue among the appellate districts, we refuse to address an issue which the record indicates will lead to exactly the same result whether the trial judge had exercised discretion under Rule 220 or not.” Barth, 139 Ill. 2d at 420.

I am, however, persuaded that in no event should the court be denied necessary latitude of discretion to accommodate to a technical but otherwise harmless failure to comply with the provisions of Rule 220. Such inflexibility would lead to unnecessary and sometimes catastrophic hardship to the litigants. To rely upon the application of a harmless error standard would not suffice because it would impose a burden on a trial judge to breach a mandatory rule to achieve a more just result. Accordingly, the matter must be left as it is currently, within the sound “discretion” of the trial judge. See Kosinski v. Inland Steel Co. (1989), 192 Ill. App. 3d 1017.


author: JUSTICE McCUSKEY

text:
    JAMES BINGHAM et al., d/b/a Winner’s Circle and Winner’s Circle Speed and Custom, et al., Plaintiffs-Appellants, v. INTER-TRACK PARTNERS, Defendant-Appellee.
    Third District
    No. 3—91—0790
    Opinion filed September 8, 1992.

      James T. Bradley, of Joliet, for appellants.
    Michael J. Martin, of Dunn, Martin & Miller, Ltd., of Joliet, for appellee.
   JUSTICE McCUSKEY

delivered the opinion of the court:

Plaintiffs James and Linda Bingham are the sole shareholders of plaintiff Winner’s Circle Speed and Custom, Inc. Plaintiffs appeal from a judgment in favor of defendant, Inter-Track Partners, in an action to prevent defendant from using the trade name “Winner’s Circle.”

Plaintiffs contend that the trial court erred when it: (1) found plaintiffs’ mark was invalid; (2) found that no likelihood of confusion existed between the parties’ marks; and (3) refused to award attorney fees for willful infringement of plaintiffs’ mark.

We find that the plaintiffs have established: (1) a protectable trade name; (2) that a likelihood of confusion does exist between the parties’ marks; and (3) that the defendant’s infringement was willful, and therefore, plaintiffs are entitled to reasonable attorney fees and costs.

Accordingly, we reverse the judgment of the trial court. We find that the plaintiffs are entitled to injunctive relief to protect their trade name. Therefore, we remand this cause to the trial court so that a proper determination can be made of the appropriate geographical area where the defendant will be enjoined from using the names “The Winner’s Circle” or “Winner’s Circle.”

The record shows that plaintiffs sell auto racing, performance and sports car equipment under the trade names “Winner’s Circle” and “Winner’s Circle Speed and Custom.” Plaintiffs operate retail stores in Galesburg, Bradley, and Joliet, Illinois. Plaintiffs have continuously used the “Winner’s Circle” trade names since they began doing business in Joliet on May 1, 1971. Plaintiffs have recently achieved annual sales of approximately $2.5 million.

In April 1990, defendant obtained a certificate of registration from the Illinois Secretary of State for the mark “The Winner’s Circle.” In October 1990, defendant opened an off-track betting parlor and restaurant in Joliet named “The Winner’s Circle.” Just prior to defendant’s grand opening, plaintiffs brought their action for injunctive relief.

Plaintiffs’ three-count amended complaint sought to enjoin defendant, under principles of common law trade name infringement, from using the trade names “The Winner’s Circle” or “Winner’s Circle.” Plaintiffs’ amended complaint also sought cancellation of defendant’s Illinois service mark registration and an award of attorney fees for willful infringement under section 2 of the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1989, ch. 121½, par. 312).

Following a bench trial, the trial court entered judgment for defendant. The trial court found no evidence that the defendant: (1) was likely to expand into plaintiffs’ business; (2) portrayed its business as plaintiffs’ business; or (3) intended to deprive plaintiffs of their customers or obtain a competitive edge.

The trial court further found that the services offered by the parties were completely different, and that the likelihood of confusion between the businesses’ marks was slight. The trial court determined that the plaintiffs had failed to prove the name “Winner’s Circle” was so identified with their business that it entitled them to exclusive use of the name. The trial court also found no evidence of willful infringement and therefore denied plaintiffs’ request for attorney fees. Based upon these findings, the trial court denied plaintiffs’ request for injunctive relief.

The resolution of plaintiffs’ action for trade name infringement involves a two-step analysis. The court must first determine if the plaintiffs’ mark is a valid mark. Next, the court must determine if the alleged infringer’s use of a similar mark creates a “likelihood of confusion” on the part of the consuming public. Thompson v. Spring-Green Lawn Care Corp. (1984), 126 Ill. App. 3d 99, 105, 466 N.E.2d 1004,1010.

Whether a trade name is valid and, therefore, protectable, depends upon its placement in a range of classifications. (Miller Brewing Co. v. G. Heileman Brewing Co. (7th Cir. 1977), 561 F.2d 75, 79.) Here, the parties agree that the validity of the “Winner’s Circle” mark turns upon whether it can be classified as a “suggestive” term.

“ ‘If [a mark] stands for an idea which requires some operation of the imagination to connect it with the goods, it is suggestive.’ ” (Union Carbide Corp. v. Ever-Ready Inc. (1976), 531 F.2d 366, 379, quoting A. Seidel, S. Dalroff, & E. Gonda, Trademark Law and Practice §4.06, at 77 (1963).) A suggestive term suggests rather than describes an ingredient or characteristic of the goods and requires the observer or listener to use his imagination and perception to determine the nature of the goods. (Miller, 561 F.2d at 79.) Suggestive terms merely hint at the product or the result of using the product and yet, viewed in the abstract, do not readily lead to an identification of the product area. Thompson, 126 Ill. App. 3d at 107-OS, 466 N.E.2d at 1011-12, citing Olds, Protecting Trademarks & Trade Names, in Intellectual Property Law for the General Business Counselor ch. 8, §8.15 (Ill. Inst, for Cont. Legal Educ. 1978).

Applying this analysis to the mark at issue, we find that plaintiffs’ trade name is “suggestive” and, therefore, subject to protection. “Winner’s Circle” is not simply descriptive of plaintiffs’ goods and services. The name “Winner’s Circle” requires the operation of a person’s imagination to connect it with plaintiffs’ goods and services. Consumers must associate “winning,” or a place for winners, with plaintiffs’ racing, speed, performance and custom automotive equipment.

The exclusive right to use a suggestive term as a trade name vests in the party who first used the term in a particular market. (Thompson, 126 Ill. App. 3d at 109, 466 N.E.2d at 1012-13.) State registration of a trade name does not establish any substantive rights which would not otherwise exist. Mars, Inc. v. Curtiss Candy Co. (1972), 8 Ill. App. 3d 338, 343, 290 N.E.2d 701, 704.

Here, the exclusive right to use the mark clearly belongs to plaintiffs. The evidence shows that the plaintiffs have continuously used the “Winner’s Circle” mark since 1971. Based upon Thompson, the plaintiffs are entitled to protection if the evidence indicates a likelihood of confusion on the part of the consuming public due to defendant’s use of a similar mark. (Thompson, 126 Ill. App. 3d at 109-10, 466 N.E.2d at 1013.) Evidence of infringement of a valid trademark is found where the evidence indicates a likelihood of confusion, deception or mistake by ordinary purchasers. Thompson, 126 Ill. App. 3d at 110, 466 N.E.2d at 1013.

In determining whether likelihood of confusion exists, courts typically consider such factors as: (1) the similarity of the marks in appearance and suggestion; (2) the area and manner of current use; (3) the degree of care likely to be exercised by customers; (4) the strength of the complainant’s mark; and (5) actual confusion. (Thompson, 126 Ill. App. 3d at 110-11, 466 N.E.2d at 1014.) It is not necessary to resolve all factors in favor of plaintiffs to sustain their claim of infringement.

Evidence of actual confusion is not necessary to support injunctive relief, although such evidence weighs in favor of injunctive relief, (Cullen Electric Co. v. Cullen (1991), 218 Ill. App. 3d 726, 735, 578 N.E.2d 1058, 1064.) A latecomer owes a duty to take affirmative precautions sufficient to make confusion in the use of similar service marks improbable. Thompson, 126 Ill. App. 3d at 111, 466 N.E.2d at 1014.

From our review of the record, we find that the trial court was presented with substantial evidence of actual confusion. The record shows that both parties received telephone calls, freight shipments, and United States mail deliveries intended for the other. Testimony indicated that telephone directory assistance operators confused the two businesses, despite efforts by telephone company supervisors to alleviate the problem. The trial court heard evidence of misdirected bills and an unemployment compensation claim intended for defendant which was filed against plaintiffs. Customers interested in defendant’s betting parlor began visiting plaintiffs’ store even before defendant opened its facility. Plaintiffs received a number of inquiries from their customers questioning whether plaintiffs had relocated, expanded their business, or allowed the use of their name by defendant’s betting parlor. In short, confusion among the consuming public occurred even prior to defendant’s opening its doors, and evidence of such confusion was presented through the time of trial.

We conclude that based upon the similarity of the marks and defendant’s attempted concurrent use of the mark in the Joliet area that a likelihood of confusion will indefinitely exist between the businesses. Plaintiffs’ establishment and use of a valid trade name prior to defendant’s use affords plaintiffs the right to enjoin the defendant from using a mark likely to confuse or mislead the public.

Plaintiffs’ prayer for relief requested that defendant be permanently enjoined from using “The Winner’s Circle” or “Winner’s Circle” trade names within a protected “trade area.” However, plaintiffs presented insufficient evidence to determine the parameters of this trade area. Therefore, we remand the cause for a proper determination of the boundaries of plaintiffs’ “zone of protection.” See, e.g., Brewer v. Egyptian Sports, Inc. (1984), 122 Ill. App. 3d 1022, 462 N.E.2d 520.

Plaintiffs also requested cancellation of defendant’s Illinois registration of the service mark “The Winner’s Circle.” Pursuant to statute, the Secretary of State is required to cancel any registration where the circuit court finds, inter alia, that the registrant is not the owner of the mark, that the registration was granted contrary to the Act, or that the registration was obtained fraudulently. (Ill. Rev. Stat. 1989, ch. 140, par. 16(A)(4).) Plaintiffs do not allege that any of these factors are present, but apparently desire that we order cancellation “on any ground” (Ill. Rev. Stat. 1989, ch. 140, par. 16(A)(5)). We decline to do so.

Defendant obtained registration of the mark based upon its first use at its Chicago location on September 8, 1987. The record shows that defendant was not aware of plaintiffs’ mark until the summer of 1990. Based upon the evidence, we cannot say that defendant’s mark was obtained fraudulently or contrary to the trademark act.

Plaintiffs contend that the trial court erred in refusing to enjoin defendant’s use of the “Winner’s Circle” trade name as a violation of the Uniform Deceptive Trade Practices Act and in refusing to award attorney fees under the Act. We agree. Prior to a consideration of fees, we first conclude that the trial court erred in refusing to enter an injunction in favor of plaintiffs. Again applying the foregoing analysis, we find that injunctive relief is warranted when a party’s trade practice creates a likelihood of confusion or misunderstanding (Ill. Rev. Stat. 1989, ch. 121½, pars. 312(2), (3), (12), 313).

The Act allows costs and attorney fees to be assessed in favor of a plaintiff if the court finds that the defendant willfully engaged in a deceptive trade practice. (Ill. Rev. Stat. 1989, ch. 121½, par. 313.) The trial court, however, found “no evidence of bad faith intent by defendant to benefit from [plaintiffs’] goodwill and reputation *** and therefore insufficient proof of willful infringement justifying an award of attorneys fees [was presented].” However, we find that the trial court’s determination was against the manifest weight of the evidence.

Sufficient evidence was presented to show that defendant had actual knowledge of plaintiffs’ prior use of the “Winner’s Circle” trade name and nonetheless disregarded plaintiffs’ common law rights in the name. In a cease and desist letter dated May 25, 1990, plaintiffs notified defendant of their established trade name and their intent to protect it. This letter placed defendant on notice of plaintiffs’ long-standing prior use of “Winner’s Circle.” Despite this warning, defendant proceeded to implement and promote “The Winner’s Circle” in connection with the October 1990 opening of the Joliet betting parlor. Defendant further admitted that it was aware of plaintiffs’ mark prior to promoting its business. We find that the defendant made a reasoned, deliberate business decision to proceed with “The Winner’s Circle” despite plaintiffs’ protest.

Plaintiffs presented sufficient evidence in the trial court of reasonable attorney fees and costs of $36,443.59. Also, plaintiffs have requested that we allow $7,500 as reasonable attorney fees for their appeal. We find both amounts to be reasonable. Therefore, we award plaintiffs attorney fees and costs of $43,943.59.

In summary, we reverse the judgment of the circuit court of Will County and order an award of plaintiffs’ attorney fees of $43,943.59. We remand for a determination by the trial court of the area of protection for plaintiffs’ use of the “Winner’s Circle” trade names. We decline to order cancellation of defendant’s Illinois service registration.

Reversed and remanded.

GORMAN and HAASE, JJ., concur.