author: JUSTICE LINN

text:
    ROBERT T. BALTUS, Plaintiff-Appellant, v. WEAVER DIVISION OF KIDDE AND COMPANY, INC., Defendant-Appellee.
    First District (4th Division)
    No. 1—89—0423
    Opinion filed June 7, 1990.

      Leo M. Bleiman, P.C., of Chicago (Laura Monahan-Jarvis, of counsel), for appellant.
    John W. Bell and Michael B. Gunzburg, both of Johnson, Cusack & Bell, Ltd., of Chicago (Thomas H. Pegan, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Robert T. Baltus, appeals from the order granting summary judgment in favor of defendant, Weaver Division of Kidde & Company, Inc. (Weaver). Plaintiff had filed a two-count complaint alleging theories of strict products liability and negligent manufacture and design of a transmission jack. He was injured when a transmission slipped off the jack and fell on his right hand. The strict liability action was dismissed, leaving the negligence count. Plaintiff failed to disclose any expert witness, pursuant to Supreme Court Rule 220 (107 Ill. 2d R. 220), and defendant moved for summary judgment on the basis that plaintiff was unable to prove his case as a matter of law.

On appeal, Baltus contends that he was improperly barred from giving his own expert testimony as to Weaver’s allegedly negligent manufacture and design of the jack. According to Baltus, his years of working with transmission jacks as an auto mechanic qualified him to give an expert opinion; that he gave such opinion during his deposition; and that it was for the jury to decide whether Weaver breached its applicable standard of care by failing to reasonably anticipate that the jack in question would be dangerously modified and by failing to warn against use of the jack without certain safety features.

Weaver counters that Baltus failed to rebut its motion and expert’s affidavit with competent evidence; that Baltus was incompetent to render expert opinions; and that the product was destroyed and cannot be tested or examined.

We affirm.

Background

According to the record, Baltus was injured at his place of employment, Ed Murphy Buick, when a transmission fell onto his right hand and forearm. The accident occurred on January 21,1983.

On January 17, 1984, Baltus filed a two-count complaint against Weaver. Count I alleges in pertinent part that Weaver had the duty “to exercise ordinary care in the design, manufacture, sale and installation of its transmission jack machines,” including the one involved in the accident. The complaint states that in violation of this duty, the equipment was and became “in a defective and dangerous condition” and that Baltus’ injury was proximately caused by Weaver’s acts or omissions, as follows:

“(a) Carelessly and negligently failed to design its Model WA 140A transmission jack with appropriate safety guards and safety devices [;] (b) Carelessly and negligently failed to post warnings to the operators of the dangerous and defective condition of its machine [;] *** [and] (e) Were otherwise careless and negligent in the design, manufacture and installation of the transmission jack machine.”

Count II of the complaint sounded in strict liability, alleging that the unreasonably dangerous defects existed at the time the transmission jack left the control of Weaver. This count was dismissed, amended, and dismissed with prejudice because it was untimely under section 13—213(b) of the product liability statute. Ill. Rev. Stat. 1983, ch. 110, par. 13-213(b).

The parties undertook discovery, during which Baltus was ordered to disclose all expert witnesses and answer interrogatories relating to the qualifications and opinions of that expert. This Baltus failed to do. Instead, in response to Weaver’s motion to bar experts for failure to disclose pursuant to Supreme Court Rule 220, he took the position that he was competent to testify in his own behalf, not just as an occurrence witness, but also as an expert, based on his 20 years of experience using transmission jacks. The trial court granted the motion to bar experts.

Weaver subsequently moved for summary judgment against Baltus. In the motion, Weaver pointed out that the transmission jack involved in the occurrence had been manufactured in 1971, nearly 12 years before plaintiff’s injury. By affidavit, Weaver denied performing any alterations or modifications from the date of manufacture to the date of the occurrence. Weaver next cited Baltus’ deposition admissions that conceded that the jack was approximately 11 years old when he first began working at Ed Murphy Buick; that at the time of the occurrence, the jack was in a condition of disrepair and that the maintenance of the jack was not “up to par”; that at the time of the occurrence, one of the four “ears” or “clips” that hold the transmission in place was missing; that the foot pedal for operating the hydraulic pump was bent and the handles for adjusting the angle of the top platform were missing; that on prior occasions, Baltus had had difficulties in lowering the jack because the seals were very old; and that the mechanism for adjusting the top platform had been broken years prior to the occurrence, thereby allowing the platform to unintentionally tip.

In support of its motion for summary judgment, Weaver attached the affidavit of Mitchell Kaplan, a registered professional engineer with a background in mechanical engineering, who examined the jack in question on July 2, 1985. He stated his opinion that the jack was in a reasonably safe condition at the time it left the control of Weaver and that there were no dangerous or defective conditions existing therein at such time. He further gave his opinion that the jack was designed and manufactured in a reasonably safe manner.

Additionally, Weaver’s motion for summary judgment argued that by Baltus’ admission, the jack was in a poor state of repair and maintenance and that the manufacturer cannot be held liable where the intervention of a third party’s alteration of the product causes injury-

In response, Baltus attacked Mitchell’s affidavit for addressing only the strict products liability concerns that he claimed were not in issue, such as the condition of the device when it left the manufacturer’s control. Baltus argued that Mitchell’s affidavit failed to address the manufacturer’s failure to warn against removing safety devices or the manufacturer’s anticipation that such removal or modifications would occur. Baltus also denied the relevance of the statement that he was unable to offer expert testimony as to the dangerous and defective condition of the machine at the time it left Weaver’s control. Finally, Baltus cited his 20 years’ experience as a transmission mechanic, arguing that he was competent to testify concerning the “condition of the machine before and during his use of it, to establish the custom and usage of such devices, leaving for the jury the question of proximate cause.” In conclusion, Baltus contended that the removal or alteration of the transmission jack clips and the removal of the safety strap were reasonably foreseeable, material alterations of the jack which raised a fact question for the jury.

In reply, Weaver analogized the standard of care requirement in the pending case to that of a medical malpractice action, in that the burden is on plaintiff to come forward with evidence tending to show that the engineers who designed the jack failed to exercise the degree of care and skill of a reasonably competent engineer under the same or similar circumstances.

After oral argument on the motion, the trial court granted defendant’s motion for summary judgment. From the judge’s comments it is clear that he believed that Baltus would need expert testimony that the type of modifications allegedly made in the pending case were foreseeable and actionable. The judge stated that plaintiff would have to show that the product in question was “negligently manufactured at the time it was manufactured according to what was common in the industry or what was known in the industry, and [he would] need an expert to testify to that.” The judge noted that Baltus would need someone to say that the jack was defective because the removal of the clips should have been anticipated by the manufacturer

“and that would have to include testimony as to what other manufacturers were doing and what alternatives were available to the manufacturer, exactly how the modification was done and what should have been done to guard against that modification. *** In a products liability case at the summary judgment stage the Plaintiff must produce sufficient evidence to establish the elements necessary to state forth a prima facie case of negligence [citation]. In this case the Plaintiff’s expert has been barred from testimony at trial. Moreover, the Plaintiff has not offered any results of the examination of the jack. Without an examination of the product to determine if the problem was a result of a manufacturing defect, the Plaintiff could not prove directly or inferentially a claim based in negligence or in strict liability [citation]. Plaintiff is required to come forward with some evidence which would create a question of fact as to the condition of the product when it left Defendant’s control [citation]. Plaintiff has not offered such information, and therefore, the Defendant’s motion should be granted.” (Emphasis added.)

Opinion

On motion for summary judgment the dispositive question is whether the pleadings, depositions, and admissions in the record, together with any affidavits, show that there is no genuine issue as to a material fact, entitling the moving party to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005(c); Rivera v. Mahogany Corp. (1986), 145 Ill. App. 3d 213, 494 N.E.2d 660.) Such remedy must be cautiously granted so that a party’s right to trial is not usurped in the presence of material, conflicting evidentiary facts and inferences. (Montes v. Hawkins (1984), 126 Ill. App. 3d 419, 423, 466 N.E.2d 1271, 1274.) The party opposing summary judgment must marshal evidentiary facts to defeat judgment, and, in cases in which expert opinion is necessary to sustain allegations of the complaint, summary judgment is proper when the plaintiff has failed to present an expert opinion or indicate that such expert opinion would be forthcoming. E.g., Piquette v. Midtown Anesthesia Associates (1989), 192 Ill. App. 3d 219, 548 N.E.2d 659 (evidence of a broken tooth cap following a laryngoscopy was insufficient evidence of negligence and expert testimony would be required to establish a deviation from the standard of care; expert testimony also required on issue of failure to warn); Gordon v. Nasr (1989), 182 Ill. App. 3d 964, 538 N.E.2d 843.

Baltus bases his appeal on the issue of his suitability to give expert testimony in support of his case, arguing that he was not required to disclose himself under Supreme Court Rule 220 because he was an occurrence witness and gave his opinion during his deposition. Alternatively, he contends that expert testimony is not needed in this case. Additionally, he argues that he raised a factual issue as to the foreseeability that the jack would be modified in the manner that it was and that injury would result.

Weaver maintains that the trial court correctly found in its favor on summary judgment since Baltus failed to make the necessary showing of evidentiary facts in support of his claim; failed to show that Weaver breached any duty; failed to present any evidence relating to the condition of the jack in issue; failed to rebut Weaver’s expert’s affidavit; and failed to preserve the product. Additionally, Weaver asserts that Baltus is incompetent to give expert opinion testimony as to the alleged flaws in the manufacture and design of the transmission jack.

These facts are undisputed, as evidenced by the record. Baltus has no personal knowledge of the condition of the transmission jack when it left Weaver. There are no facts to establish that the machine was in other than in good condition when it left Weaver, as far as its general operating ability. Weaver’s unrebutted affidavit establishes that Weaver did not make any modifications or alterations to the jack since its sale approximately 12 years before the occurrence. The record contains a brochure of the model of transmission jack in issue, which contains several illustrations of the jack and its features, as well as special adaptors to use with the jack.

The machine has four “U”-shaped “clips” or “ears,” as the parties have referred to them, which the brochure terms “adjustable supports.” These supports are attached to a platform or table of the jack and are what the transmissions rest on or in when they are being repaired. There are four shown, one at each corner of the table. Another illustration shows a “safety chain adjustment” and in bold face type there is a warning to use the safety chain with all adaptors. The table of the jack rotates or tilts for better positioning. In addition, there is a foot pedal that lowers or raises the table. This table is to be centered under the transmission, and the adjustable supports are to be positioned and secured. The table is then raised and tilted or moved as necessary, “until the supports firmly contact the transmission.” In the fully lowered position “the unit itself makes a convenient work table for many service operations, or it can be used in transporting the transmission to another work area in the shop.”

Baltus admitted in his deposition that the transmission jack was in a state of disrepair and that he first began using it approximately 11 years after its manufacture. He described parts that were broken off or missing and the fact that there was a leak of hydraulic fluid.

In his complaint, Baltus alleges in conclusory fashion that Weaver failed to use ordinary care in manufacturing the device because Weaver “carelessly and negligently failed to design its Model WA 140A transmission jack with appropriate safety guards and safety devices” and “failed to post warnings to the operators of the dangerous and defective condition of its machine.” He does not specify what safety guards or devices were necessary to render the machine reasonably safe. Nor does he explain in what manner it was unreasonably dangerous for failure to function in the manner reasonably to be expected in light of its nature and function. The record contains no further specifics on this point, except Baltus’ opinion that the four adjustable supports should have been permanently affixed to the table of the transmission jack, rather than being removable.

I

To determine whether Baltus has established sufficient evidentiary facts on each element of his claim to withstand the motion for summary judgment, we must determine what those elements are and whether or not expert testimony is necessary to sustain the allegations.

DUTY, BREACH OF DUTY, AND PROXIMATE CAUSE OF INJURY

In products liability actions, a manufacturer has a nondelegable duty to produce a product that is reasonably safe. (Phillips v. United States Waco Corp. (1987), 163 Ill. App. 3d 410, 516 N.E.2d 670.) As the Phillips court stated, the distinction between claims in strict liability and negligence lies in the fault concept; in strict liability, the focus is on the defective condition of the product, regardless of fault, but in negligence, defendant’s fault is additionally in issue. See Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 117-18, 454 N.E.2d 197, 203.

The duty to manufacture a “reasonably” safe product does not require the safest design possible (Kerns v. Engelke (1979), 76 Ill. 2d 154, 390 N.E.2d 859), nor one incapable of causing injury. (Hunt v. Blasius (1978), 74 Ill. 2d 203, 211, 384 N.E.2d 368, 372 (Sign post manufacturer had no legal duty to design posts with “break-away” feature, although such design was available, because risk of injury involved in motorist’s collision with sign post was normal risk of collision with stationary object and there was no evidence that post subjected drivers to unreasonable or unexpected risks).) The issue of whether a product is unreasonably dangerous depends on the facts, normally an issue for the jury. Nevertheless, our supreme court has held that a plaintiff “must present pertinent evidence, such as an alternative design which is economical, practical and effective, to the fact finder, who determines whether the complained-of condition was an unreasonably dangerous defect.” (Kerns v. Engelke (1979), 76 Ill. 2d 154, 162-63, 390 N.E.2d 859, 863.) Kerns quoted with approval Sutkowski v. Universal Marion Corp. (1972), 5 Ill. App. 3d 313, 319, 281 N.E.2d 749, 753, “ ‘In the development of product’s [sic] liability principles design alternatives are appropriately considered whether reasonable care is the basis of liability or where liability is predicated upon strict tort liability. [Citation.] In both cases it appears that policy considerations are involved which shift the emphasis from the defendant manufacturer’s conduct to the character of the product. Such change in emphasis furnishes additional reasons for permitting evidence of alternative designs in a strict tort liability case.’ ” Kerns, 76 Ill. 2d 154, 163, 390 N.E.2d 859, 863.

We believe that to recover from Weaver for negligent manufacture of the jack, based on defective design alone, Baltus must establish that Weaver deviated from the standard of care that other manufacturers of transmission jacks followed at the time the machine was designed, or some evidence that Weaver knew or should have known, in the exercise of ordinary care, that its product was unreasonably dangerous and failed to warn of its dangerous propensity. (Anderson v. Hyster Co. (1979), 74 Ill. 2d 364, 385 N.E.2d 690 (That a product is not reasonably safe because of design defect may be shown by availability and feasibility of alternative designs at time of manufacture, or that design fails to conform to industry standards, or that it fails to meet design criteria of government regulations).) As for the failure to warn issue, see Woodill v. Parke-Davis & Co. (1980), 79 Ill. 2d 26, 402 N.E.2d 194 (failure to warn in strict liability requires evidence of defendant’s knowledge of dangerous propensity, based on the objective standard of knowledge in the industry; negligence focuses on the particular defendant’s knowledge).

In both strict liability and negligence actions, the threshold question of unreasonably dangerous design is not whether the product could have been made safer, but whether it is dangerous because it fails to perform in the manner reasonably to be expected in light of its nature and intended function. (E.g., Hunt v. Blasius (1978), 74 Ill. 2d 203, 384 N.E.2d 368.) Foreseeability of injury alone does not define a manufacturer’s duty; strict liability for an unreasonably dangerous product applies “only when the product is ‘dangerous to an extent beyond that which would be contemplated by the ordinary [person] ***, with the ordinary knowledge common to the community as to its characteristics.’ (Emphasis added.)” (Hunt v. Blasius, 74 Ill. 2d at 211-12, 384 N.E.2d at 372, quoting Restatement (Second) of Torts, §402A, comment i (1965).) In Foster v. Devilbiss Co. (1988), 174 Ill. App. 3d 359, 529 N.E.2d 581, the court allowed the jury to consider whether the removal of safety devices from a paint spray gun was reasonably foreseeable. Plaintiff’s expert, however, testified that the gun itself was unreasonably dangerous without certain safety devices. He also gave the factual basis for that opinion. Moreover, “[i]n determining whether a product is unreasonably dangerous, the focus should be placed on the product itself and not the availability of any additional safety devices.” (Fuller v. Fend-All Co. (1979), 70 Ill. App. 3d 634, 638, 388 N.E.2d 964, 967) (holding that safety glasses lacking side safety shields were not unreasonably dangerous, although disputed facts regarding manufacturer’s knowledge of problem gave rise to fact issue on breach of duty to warn).

Since negligence does not permit liability without fault, it is not enough to say that there may have been a better way to design the jack, without giving evidence of a standard of care by which to measure Weaver’s design and without showing a deviation from that standard by evidence of record.

Leaving aside the question of expert testimony for the moment, we note that even if Baltus created a genuine issue of material fact as to breach of the applicable standard of care, he must also establish an evidentiary base for the proximate cause element of his claim in order to survive the motion for summary judgment. We will not presume a causal link between the alleged design defect (the removability of the adjustable supports and/or absence of warnings) and Baltus’ injury.

In Phillips v. United States Waco Corp., the appellate court affirmed summary judgment in favor of a scaffold manufacturer who had been sued under theories of strict liability and negligent manufacture. There the injured plaintiff claimed that the scaffold he had been standing on broke apart, causing him to fall. He said that one of the ends came loose, the pin came out. He did not, however, examine the scaffold, nor was it preserved for examination by the experts. He also admitted that the scaffold might have been wired together by his co-workers to hold it together. Plaintiff retained an expert witness who examined a representative scaffold and stated his opinion that it was defectively designed in that no horizontal cross bracing was provided to prevent “racking.” (Racking refers to the process by which a rectangle distorts into a parallelogram, leading to instability.) In contrast, defendant manufacturer’s expert, a mechanical engineer, stated in an affidavit that no accident would have occurred if the plaintiff had used a properly constructed and assembled scaffold. He also gave several possible causes for plaintiff’s accident.

Although both sides had retained experts, and although they were in disagreement as to the cause of the accident and the safety of the scaffold, the trial court nevertheless granted summary judgment in favor of defendant.

The appellate court affirmed the trial court, holding that plaintiff “was required to present some evidence concerning the absence of abnormal use and the condition of the product when it left the defendant’s control and/or fault of the defendant in producing an unreasonably dangerous product [citation]. While the exact cause of the injury need not be proven, plaintiff must establish a credible basis for a reasonable inference that a condition of the product proximately caused the injury and for elimination of reasonable secondary causes [citation]. No inference of defectiveness arises from the mere fact that an injury occurred.” (Emphasis added.) Phillips, 163 Ill. App. 3d at 416-17, 516 N.E.2d at 674.

The Phillips court further noted that while a prima facie case may be conclusively established from circumstantial evidence, “that evidence must have a reasonable probative basis, for the jury will not be permitted to engage in speculation.” (Emphasis added.) (163 Ill. App. 3d at 417, 516 N.E.2d at 674.) The court held that the record demonstrated that plaintiff “did not produce evidentiary facts to support his case and that, hence, the circuit court correctly entered summary judgment in favor of the defendant.” 163 Ill. App. 3d at 417, 516 N.E.2d at 674.

In the pending case, plaintiff concededly cannot set forth a specific defect in the product itself, nor can he produce the actual transmission jack that caused his injury. His entire case hinges on his own, bare opinion that the manufacturer breached a duty to him by failing to permanently affix the adjustable supports to the table of the jack or, in the alternative, failing to post warnings that the supports and the safety strap should not be removed. Like the Phillips plaintiff, Baltus admits that the 12-year-old device in question had sustained damage unrelated to the alleged design defect. Indeed, the decrepit state of the jack came out in his own deposition testimony. One such admission was that the mechanism for adjusting the top platform had been broken for years beforehand, allowing it to unintentionally tip.

The use of the jack and its poor condition at the time of the occurrence are relevant to the issue of proximate cause. While Baltus asserts that proximate cause is a question for the jury — an accurate statement when a genuine issue of material fact exists — he fails to set out an evidentiary basis tending to show that his injury was proximately caused by the alleged design defect. Excerpts in the record from his deposition indicate that at the time the transmission fell on his hand he was in the process of lifting it and had turned to look for his partner for help. He had taken one hand off of the transmission. We do not have the benefit of the full transcripts of the depositions and decline to speculate from these statements as to the causal link between the missing support and his injury. However, the simple statement that proximate cause is for the jury to decide does not substitute for an affirmative factual base from which to infer such proximate cause. We do not imply that Baltus must prove his case at the summary judgment stage; however, we must be able to discern a prima facie case from the facts of record. E.g., Ralston v. Casanova (1984), 129 Ill. App. 3d 1050, 1059-60, 473 N.E.2d 444, 451 (while prima facie case of strict liability possibly may be shown absent the defective product itself or absent expert testimony concerning a specific defect, “plaintiff must present some evidence to raise a material issue as to the absence of abnormal use and the elimination of reasonable secondary causes,” both to show the condition of the product when it left defendant’s control and to show that the alleged defect proximately caused the injury). See also Hare v. Foster G. McGaw Hospital (1989), 192 Ill. App. 3d 1031, 549 N.E.2d 778 (directed verdict for defendant doctor in medical negligence suit affirmed where plaintiff failed to produce evidence of proximate cause).

On the failure to give warnings, inadequate warnings in strict liability cases may be actionable if the product has a latent defect or a dangerous propensity of which a user would normally be unaware. Hence, in cases involving pharmaceuticals, warnings may be necessary to protect persons unfamiliar with side effects or other risks. (See, e.g., Woodill v. Parke-Davis & Co. (1980), 79 Ill. 2d 26, 402 N.E.2d 194.) However, there is no duty to warn where the product is not defectively designed or manufactured and the danger is an open and obvious propensity of the product. (Zidek v. General Motors Corp. (1978), 66 Ill. App. 3d 982, 384 N.E.2d 509.) Here, Baltus used the jack on a regular basis and expressed his knowledge that the supports should not be removed when the transmissions were resting on them. The risk of using fewer supports than included with the jack would therefore appear obvious; this is not a case of a latent defect or unexpected risk. Nor does Baltus explain how the presence of a warning against using the jack without its supports or without the safety strap would have rendered the jack safer or prevented his injury.

We believe that the above authorities support the grant of summary judgment in the pending case. We do not believe that Baltus has presented sufficient evidentiary facts, circumstantial or otherwise, to establish a prima facie case of negligent manufacture in order to defeat the motion for summary judgment.

II

Although our holding above well may be dispositive, we further address the issue of expert testimony because the parties disagree as to whether it is required and whether Baltus himself may give expert opinion testimony.

THE NEED FOR EXPERT TESTIMONY

Clearly, the parties and the trial court assumed the need for expert opinion as to the allegedly dangerous condition of the jack. Baltus did not disclose an expert witness, nor did he answer interrogatories designed to discover the basis of the expert opinion and the qualifications of the expert. Rather, he asserted his own competence to render an expert opinion as to the alleged design defect, based solely on his years of experience in buying and using transmission jacks in the repair of automobile transmissions. Before addressing the narrower question of his competence as an expert witness, however, we consider whether the case requires expert opinion at all.

Some negligence actions do not require expert testimony because they allege “ordinary” negligence, in the common experience and understanding of the jurors. An automobile collision caused by a driver’s failure to stop at a red light would hardly require expert opinion, although a complicated reconstruction of a collision in another case might call for such evidence. The specific facts and issues involved determine whether expert opinion testimony is necessary or desirable. See Lovelace v. Four Lakes Development Co. (1988), 170 Ill. App. 3d 378, 533 N.E.2d 386 (In negligence suit in which plaintiff fell on defendant’s outdoor ice rink, trial court properly excluded expert’s opinion based on the closure of other area ice rinks where skater did not establish that the conditions at the other rinks were comparable with the one at which she was injured and expert’s opinion was based on substantively inadmissible data which was not reasonably relied on).

Products liability actions, however, often involve specialized knowledge or expertise outside the layman’s knowledge. Manufacturing negligence resulting in an unreasonably dangerous product seems particularly appropriate for expert opinion. See, e.g., Pease v. Ace Hardware Home Center of Round Lake No. 252c (1986), 147 Ill. App. 3d 546, 498 N.E.2d 343 (expert testimony regarding design alternatives for constructing display rack and need for warnings was properly admitted to aid jury in deciding products liability action); Sutkowski v. Universal Marion Corp. (1972), 5 Ill. App. 3d 313, 281 N.E.2d 749 (expert witness’ testimony regarding design alternatives at time of manufacture should have been admitted and its exclusion was reversible error).

Varady v. Guardian Co. (1987), 153 Ill. App. 3d 1062, 506 N.E.2d 708, which Baltus cites in support of his position that expert opinion is not needed, does not aid him. In that strict liability action, plaintiff’s evidence established that during normal use of her aluminum crutches, the left crutch buckled or collapsed, causing her to fall. Defendant manufacturer’s expert testified that if the crutch collapsed under a downward load while being used in the manner intended, it would be because of a defect in the metal. Accordingly, the appellate court reversed the trial court’s entry of judgment notwithstanding the verdict in favor of defendant manufacturer. Unlike the situation in Varady, here there is no evidence of a defect in the jack itself (apart from the foreseeability of the removal of a support). In addition, there is substantial evidence that the jack was not being used in the manner intended.

Baltus cites no other cases in support of his assertion that he need not offer expert evidence as to the unreasonably dangerous design of the jack. Nor do we find any logical merit to the suggestion that the “defect” is “obvious” and therefore within the jury’s common understanding and experience. It may appear “obvious” that a transmission platform with three instead of four supports may become “dangerous.” Likewise, it may seem “obvious” that the removability of some of the supports was “foreseeable.” The issue is not, however, whether the missing support rendered the jack dangerous. Nor is the issue whether the foreseeability that a support would be removed rendered its design dangerous; that simply begs the question. The issue is: Does the mere fact that the adjustable supports are removable render the jack unreasonably dangerous? Without expert testimony as to the fimction(s) of the transmission jack, design alternatives that were available to accomplish the same functions) in a safer manner, or at least some knowledge attributable to Weaver that its design was unreasonably dangerous, we cannot agree that the jury may simply speculate that it was in fact an unreasonably dangerous machine, due to its design. See Cornstubble v. Ford Motor Co. (1988), 178 Ill. App. 3d 20, 532 N.E.2d 884 (Plaintiff must prove not only that the product was not reasonably safe but that defendant knew or in the exercise of ordinary care should have known that the product was not reasonably safe).

For that reason we agree with defendant that product liability cases are analogous to those involving medical malpractice: Both types of cases involve specialized knowledge that bear directly on the standard of care in the community. While some instances of medical malpractice need no expert opinion that a doctor has fallen below the standard of care (such as a case in which an instrument is left in the patient after surgery), expert opinion usually is required to aid the jury in determining that the pertinent standard of care has been breached. E.g., Piquette v. Midtown Anesthesia Associates (1989), 192 Ill. App. 3d 219, 548 N.E.2d 659; Smith v. South Shore Hospital (1989), 187 Ill. App. 3d 847, 543 N.E.2d 868 (testimony by another doctor that he would have done something different is not sufficient to establish a prima facie case).

We do not imply that all cases of negligent manufacture or design require expert opinion as to the unreasonably dangerous condition of the product. For example, if a chair is designed to be easily collapsible, for portability, but has the tendency to collapse when someone sits on it, an expert in chair design may not be needed to help the jury decide that the design is unreasonably dangerous; it does not function in the manner expected and is in fact unsafe. Cf Collins v. Interroyal Corp. (1984), 126 Ill. App. 3d 244, 466 N.E.2d 1191 (expert testimony indicated that design of adjustable chair was unreasonably dangerous because self-tapping screw in leg had tendency to loosen and fall out during normal use, allowing chair leg to telescope and chair to collapse; evidence also indicated that chair design was later changed to include a nut and bolt assembly to keep screw in place and prevent telescoping).

In this case, however, the allegedly defective design is of a different order. In normal and intended use the four supports would be in place, as they are an integral part of the jack’s assembly. Unlike the safety devices attached to the paint spray gun in Devilbiss v. Foster, the supports are not, as such, safety devices that were added on to the jack to keep it from being unreasonably dangerous in its basic function. The transmission is held to the table of the jack by the supports, which apparently are adjustable to accommodate different size transmissions. Without expert testimony resting on a foundation of facts regarding this particular design, the jury would be left to speculate that it was unreasonably dangerous solely because the supports were removable. (To say that it was “foreseeable” that they would be removed assumes that the removability of the supports ipso facto renders the jack unreasonably dangerous as manufactured.) In fact, the record indicates that the jack may have been designed to have other uses, such as a worktable. (See Savage Manufacturing & Sales, Inc. v. Doser (1989), 184 Ill. App, 3d 405, 540 N.E.2d 402, appeal allowed (1989), 127 Ill. 2d 641, 545 N.E.2d 131 (Jury verdict in strict liability case against manufacturer reversed on appeal because multiuse press was not unreasonably dangerous for lack of safety guards at point of operation, when plaintiff’s own expert admitted that only a unifunctional press could have been equipped with such devices).) We conclude that Baltus cannot establish a breach of the standard of care in this case without expert testimony.

The final point for our consideration, therefore, is whether he is qualified to give expert testimony. There is no presumption that a witness is qualified to give an opinion and the offering party must show he possesses the necessary learning, skill, or experience. (Broussard v. Huffman Manufacturing Co. (1982), 108 Ill. App. 3d 356, 438 N.E.2d 1217.) Since Baltus put his competence as an expert in issue in his response to Weaver’s motion to bar experts for lack of disclosure, he had the burden of presenting himself as a qualified expert on the material issues. This he failed to do. His only recitation of qualifications was 20 years as an auto mechanic who used transmission jacks on a regular basis. That may give him expertise in their use, but it does not mean he has the knowledge, skills, and experience as a manufacturer or designer of the equipment. Collins v. Hyster Co. (1988), 174 Ill. App. 3d 972, 529 N.E.2d 303, appeal denied (1989), 124 Ill. 2d 554, 535 N.E.2d 913 (In forklift design case, witness with no knowledge of industry standards at the time of the manufacture of the product in question is unqualified to testify about any specifically alleged acts of negligence on the manufacturer’s part).

Moreover, he would be unable to give his personal opinion as to the safety of the device as designed, an ultimate issue, if he were not qualified as an expert. (See, e.g., Davis v. International Harvester Co. (1988), 167 Ill. App. 3d 814, 521 N.E.2d 1282, appeal denied (1988), 122 Ill. 2d 572, 530 N.E.2d 242 (Occurrence witness, an experienced truck driver, was not qualified as an expert to give an opinion regarding the safety of a semitrailer cab’s design in a products liability suit against the manufacturer where the witness had no special education or expertise that qualified him as an expert for evaluating vehicle safety); cf. Hardware State Bank v. Cotner (1973), 55 Ill. 2d 240, 302 N.E.2d 257 (Agricultural engineering professor was a qualified expert witness who could testify regarding the need for safety devices on a farm implement because of his knowledge of the availability and adaptability of safety shields for the implement). See also Broussard v. Huffman Manufacturing Co. (1982), 108 Ill. App. 3d 356, 438 N.E.2d 1217 (In products liability action against gasoline can manufacturer, witness who had a degree.in civil engineering but no mechanical engineering and who had never designed gasoline cans, nor been involved in their manufacture, was unqualified to render expert opinion regarding defects in the design and manufacture of the cans).) The standard to which the manufacturer is held is that degree of knowledge and skill of an expert (Fuller v. Fend-All Co. (1979), 70 Ill. App. 3d 634, 639, 388 N.E.2d 964, 968); therefore, one challenging such design as being unreasonably dangerous should be qualified as an expert also, unless the design is so obviously defective that it is within the common understanding of non-experts. Since we have concluded that the defect alleged in the pending case is not so obvious as to be within the common understanding of nonexperts, we also conclude that plaintiff’s personal opinion is not sufficient as that of an expert. We cannot presume a breach of duty in negligent manufacture based on the conclusory statement that the supports should not be removed, or removable, for any reason.

In Loy v. Firestone Tire & Rubber Co. (1988), 168 Ill. App. 3d 503, 522 N.E.2d 848, the trial court granted summary judgment in favor of a manufacturer of a ratchet wrench when the wrench itself was unavailable; there was no expert testimony that it was defective; there was evidence of abnormal use; and there was no inference of the presence or absence of a defect when it left the manufacturer. Similarly, in this case there is no competent evidence in support of the assertion that the machine as designed is unreasonably dangerous. Mere speculation is inadequate. Baltus’ burden in resisting summary judgment is to muster evidentiary facts in support of a prima facie case, to justify submitting the matter to a jury. We conclude that he has failed to do so.

Affirmed.

JOHNSON and JIGANTI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE MURRAY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD SMITH, Defendant-Appellant.
    First District (5th Division)
    No. 1—86—3240
    Opinion filed June 8, 1990.

      Michael J. Pelletier and Patricia Unsinn, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Jane E. Loeb, and William Marback, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MURRAY

delivered the opinion of the court:

Edward Smith (defendant) and Sandra Gicla (codefendant) were indicted on 159 counts, charging them with criminal sexual assault, aggravated criminal sexual assault, kidnapping, aggravated kidnapping, aggravated battery, unlawful restraint, armed robbery and armed violence. They were tried jointly before a jury on 10 of these counts, including seven counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12—14), one count of aggravated kidnapping (Ill. Rev. Stat. 1985, ch. 38, par. 10—2), one count of armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18—2), and one count of armed violence (Ill. Rev. Stat. 1985, ch. 38, par. 33A—2) and were both found guilty on these charges. Defendant was sentenced to the maximum extended term of 60 years’ imprisonment for his aggravated criminal sexual assault conviction and a concurrent term of 30 years’ imprisonment for his armed robbery conviction.

Codefendant Gicla was sentenced to 24 years’ imprisonment for her aggravated criminal sexual assault conviction and a concurrent term of 10 years’ imprisonment for her armed robbery conviction. The trial court entered no sentence on the armed violence and aggravated kidnapping convictions, having found them to have merged. Defendant Smith now appeals from his convictions and sentence. Co-defendant Gicla takes no part in this appeal.

The facts of the case are as follows.

Defendant and codefendant were arrested at about 7:30 p.m. on March 4, 1985, when the car they were driving was stopped by police because it was a stolen vehicle. Because they fit a general description of alleged perpetrators who were wanted in connection with two sexual assaults that occurred in September 1984, their arrest was made known to Sergeant Thomas O’Connor, who was involved in the ongoing investigation of the sex crimes. O’Connor arrived at District 8 police station, where defendant and codefendant were being held, at about 1 a.m. on March 5, 1985. He met briefly with defendant at this time, although their conversation concerned only the stolen motor vehicle charge.

At about 1 p.m. on March 5, 1985, both defendant and codefendant were transferred to Area 3 Violent Crimes Headquarters, located at 3900 South California Avenue in Chicago. There, at about 1:30 p.m., O’Connor met with defendant briefly and, after advising defendant of his rights under Miranda, notified him that he was a suspect in connection with two sexual assaults and that he would be placed in a lineup later that day. At about 7 p.m. that evening lineups were conducted and viewed by the two sexual assault victims. Both victims positively identified defendant, as well as codefendant, who participated in another lineup at about the same time.

After the lineups, at about 8:30 p.m., O’Connor met with defendant once again. He reapprised defendant of his rights and then informed him that he had been positively identified in the lineup. He also notified defendant that an assistant State’s Attorney had been summoned and that charges would, in all probability, be filed upon his arrival. Following this, defendant made inculpatory statements, admitting involvement in the sexual assaults. He then asked to speak with codefendant, and when allowed to do so, encouraged her to admit her involvement in the crimes. Codefendant then made admissions consistent with defendants statements.

Later that same night, at about 10 p.m., Assistant State’s Attorney Babbitt arrived at the station. Defendant and codefendant repeated their admissions to Babbitt after he, too, advised them of their rights. However, they refused to sign the statements which were reduced to writing by Babbitt.

Prior to trial, defendant made a motion to suppress his post-arrest statements and an evidentiary hearing was held. At this hearing defendant attempted to show that his statements had been made involuntarily and after he had requested an attorney. After hearing evidence the trial court denied defendant’s motion and found his statements to be admissible.

The case proceeded to trial, at which time J.S., the victim of a sexual assault, testified that at about 7:30 p.m. on September 18, 1984, she left her Chicago apartment to walk to a bar located two blocks away so that she could sign up for a women’s pool league. As she walked down 43rd Street near the intersection of California, she noticed a man walking in a hurried fashion, coming from an alleyway just ahead of her. When she got to this alleyway, she saw that a white, compact-sized car was parked there with its motor running. A woman was standing near the rear passenger side of the vehicle. The woman approached her and asked if she would check to see if the directional signals on the vehicle operated properly. Initially J.S. agreed, but she became suspicious when the woman did not immediately move toward the car and appeared to be looking over J.S.’s shoulder. For this reason J.S. turned to leave and, as she did so, she saw that the man, whom she had seen earlier crossing the street from the alleyway, was “charging” toward her. J.S. tried to run but the man grabbed her shoulders and propelled her into the alleyway, pinned her against the wall of a building, and held a knife to her throat. J.S. identified the man as defendant and the woman as codefendant Gicla.

J.S. threw her purse to the ground and told defendant to take it. He replied that he didn’t want her money, he wanted her. Defendant threatened to kill J.S. if she screamed, but encouraged her to scream, stating that he would enjoy cutting her into “teeny pieces.” He also reprimanded her for looking at him and then tore her eyeglasses off. Codefendant then held the front seat of the car forward while defendant forced J.S. into the back seat of the car. Once in the back seat, J.S. was blindfolded, all her clothing removed and her hands tied behind her back with her bra.

Although blindfolded, J.S. could discern shapes and so she was aware that defendant was driving the vehicle. She also recalled that they made several stops, the first one at what seemed to be a liquor store. Codefendant got out and soon after returned with something in a paper bag. While codefendant was inside the store defendant “played” with the knife on J.S.’s bare back as she lay nude on the back seat of the car. After codefendant returned, they drove on. Co-defendant then rummaged through J.S.’s purse while defendant asked J.S. several questions, including her name and whether she had a boyfriend.

The second stop seemed to be inside an enclosed area, perhaps a garage. Codefendant stayed with J.S. while defendant exited the car. J.S. asked if they intended to kill her and codefendant told her to “just do what he says because he gets really crazy.” At the third stop she was informed that they were switching vehicles. She was then taken out of the car she had been in and moved to the backseat of a different, larger automobile with velour seats.

From the sounds she heard, J.S. believed the next stop was at a park. Defendant stopped the vehicle and both he and codefendant got into the backseat with her. Defendant opened a bottle of gin, took a drink and then passed the bottle to codefendant, who also took a drink. Defendant once again “played” with his knife on J.S.’s body and then forced her to perform fellatio on him and cunnilingus on co-defendant. After this defendant poured the remainder of the bottle of gin down J.S.’s throat, threatening to kill her if she spilled “one drop.” Although J.S. could recall that they drove for sometime after that, she could remember nothing more of that evening.

J.S. awoke the next day on the floor of an unfamiliar apartment. She was still blindfolded and both her arms and legs were tied. Her arms were numb, her lips felt puffy and the inside of her mouth felt scratched and cut. One of her arms had a cut on it and both her vagina and rectum were “extremely sore.” When defendant noticed that she had awakened he came to her and, once again, ran his knife across her body. J.S. asked him to untie her arms and legs and he finally did so. Defendant told her that codefendant was not present and then forced her to have vaginal intercourse with him.

The telephone rang and following a conversation over the telephone, defendant told J.S. that he needed some information from her. In a subsequent telephone call, defendant relayed this information, stating “Here [are] the stats on the bitch, check her out.” Defendant insinuated that codefendant worked for, or had contacts in, the police department and that they would know if she contacted the police if she was released.

When codefendant returned to the apartment, J.S. was forced to kneel on the floor and have vaginal intercourse in this position. She was told that two other men were having intercourse with her, but J.S. believed, upon reflection, that this was not true and that it was, in fact, defendant who was performing the sexual acts upon her. She was also forced to perform oral sex on both defendant and codefendant at this time. Later, codefendant and defendant went through J.S.’s purse and asked her about each name in her address book.

Codefendant left the apartment again, at defendant’s direction, to purchase more liquor and some food. In her absence defendant watched television and drank alcohol, although he also had J.S. perform fellatio on him intermittently. When eodefendant returned to the apartment again, J.S. was forced to take a bath with defendant, was given a douche by codefendant, and an enema by defendant. She was given a “sleazy nightie,” a garter belt and nylons to wear and then lead to believe that pictures were being taken of her. Additional sex acts were then performed on,her, including the insertion of objects into her vagina and rectum. During this time codefendant placed her hand over J.S.’s mouth and put her head into a pillow to muffle her screams.

Finally, J.S. was given some clothes and her purse, which was later found to be missing the $28 that had been inside, and told that she was going home. Defendant thanked J.S. for helping them with codefendant’s “fantasy.” Then they walked J.S. outside and put her inside the second, larger vehicle that she had ridden in the night before. J.S. was driven to an alleyway near her own apartment. Defendant indicated that he was holding a gun to her head and then walked her to a fenced-in yard. He threatened to kill J.S. if she didn’t “run like a motherfucker.” Then he and codefendant drove away.

J.S. estimated that she was released at about 9:30 p.m. on September 19, 1984. She “barely walked” to her apartment and, once there, saw for the first time her physical injuries. She noted that her face and body were bruised and cut, her eyes were blackened, her teeth were chipped and she had a broken nose. She was also extremely stiff and sore and had lost sensation in her thumbs due to her arms being tied for so long.

J.S. also noticed that inside her apartment there was a policemen’s flashlight and a missing person’s report directing her to call the police station when she returned home. She did not call, however, out of fear. But later that evening, when a police officer came to J.S.’s apartment to retrieve the flashlight that had been left there, he convinced J.S. to make a report. Then other officers were called and J.S. was taken to the hospital.

J.S. further testified that she viewed a lineup on October 14, 1984, and a photograph of another lineup on November 7, 1984, but her attackers were not among either of these groups. However, on March 5, 1985, she viewed two lineups, one of a group of men and one of a group of women, and positively identified defendant and co-defendant as her attackers at that time.

In addition to the testimony of J.S., the State presented the testimony of S.W., who had been abducted and sexually assaulted on September 15, 1984. She, too, had positively identified defendant and co-defendant as her attackers from the March 5, 1985, lineup and her testimony revealed that her abduction and treatment was similar to J.S.’s abduction and treatment in a number of ways. Furthermore, Chicago police officer Thomas O’Connor testified that subsequent to their arrest, defendant and codefendant made inculpatory statements, admitting to their involvement in the charged offenses.

Based on this and other evidence adduced at trial, the jury found both defendant and codefendant guilty as charged and they were later sentenced on their convictions. Defendant now brings this appeal in which he raises the following issues: (1) whether the trial court erred in admitting his statements into evidence when they were not voluntarily made; (2) whether the State failed to meet its burden of proof that he knowingly and voluntarily waived his right to remain silent and have the assistance of counsel; (3) whether it was error to have admitted into evidence testimony that his arrest resulted from his commission of the offense of possession of a stolen motor vehicle; (4) whether improper hearsay was admitted at trial; (5) whether prosecutorial misconduct denied him a fair trial; and (6) whether his extended-term sentence was improper and excessive. While we shall address each issue below, we conclude that defendant’s conviction and sentence must stand.

Defendant’s first two issues concern the admission of his post-arrest statements. The admissibility of an accused’s confession, obtained during a custodial interrogation, depends on whether the State has proven, by a preponderance of the evidence, that defendant knowingly, intelligently and voluntarily waived his privilege against self-incrimination and his right to assistance of counsel. (Miranda v. Arizona (1966), 384 U.S. 436, 475, 16 L. Ed. 2d 694, 724, 86 S. Ct. 1602, 1628; People v. Reid (1990), 136 Ill. 2d 27; People v. Kincaid (1981), 87 Ill. 2d 107, 429 N.E.2d 508; People v. Brownell (1980), 79 Ill. 2d 508, 404 N.E.2d 181.) Once the State presents a prima facie case, i.e., evidence that defendant was properly admonished and that after being admonished, he waived his rights by making a statement, then the burden shifts to defendant to show that his waiver was not knowing, intelligent and voluntary. (People v. Reid, 136 Ill. 2d 27; People v. Cozzi (1981), 93 Ill. App. 3d 94, 98, 416 N.E.2d 1192.) To determine whether the State has met its burden, a trial court must consider the totality of the circumstances. (People v. Reid, 136 Ill. 2d 27; People v. Kincaid, 87 Ill. 2d 107, 429 N.E.2d 508.) This should include an evaluation of the accused’s age, experience, education, background, and intelligence, as well as the conditions and circumstances surrounding the interrogation when the waiver took place, (People v. Simmons (1975), 60 Ill. 2d 173, 326 N.E.2d 383.) A reviewing court is limited to determining whether the lower court’s finding that the accused effectively waived his rights was against the manifest weight of the evidence. People v. Martin (1984), 102 Ill. 2d 412, 466 N.E.2d 228; People v. Brownell, 79 Ill. 2d 508, 404 N.E.2d 181.

In the present case defendant raises two bases for his contention that the trial court erred by admitting his admissions into evidence: (1) that the State failed to prove that he waived his right to remain silent, and (2) that the State failed to prove that he waived his right to assistance of counsel.

In the first instance, defendant argues that the record shows that his inculpatory statements were made after he indicated that he wished to remain silent and that his wishes were not “scrupulously honored.” (Michigan v. Mosley (1975), 423 U.S. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321; People v. R.C. (1985), 108 Ill. 2d 349, 483 N.E.2d 1241.) Defendant further argues that his statements were a product of compulsion and, as such, obtained in violation of his constitutional rights, so that the trial court erred by ruling that they were made voluntarily. With regard to the second issue, defendant contends that he presented the trial court with evidence that he had requested the assistance of counsel prior to questioning but that the trial court resolved the issue in the State’s favor after impermissibly shifting the burden of proof to him. Defendant argues that the State’s evidence was insufficient to show that he waived his right to counsel.

The State contends, however, that the record shows that defendant never expressed a desire to remain silent nor did he request the presence of counsel and, thus, defendant never invoked his constitutional rights in this regard. Furthermore, the State argues that, if this court were to find that defendant had expressed a desire to remain silent prior to his questioning by police, his subsequent statement to the assistant State’s Attorney was voluntarily made and sufficiently attenuated to have been purged of any taint from his previous involuntary statement to the police. Additionally, the State contends that the admission of defendant’s statements, if error, was harmless beyond a reasonable doubt due to the overwhelming evidence against him.

Based on the arguments made we must first determine whether defendant invoked his right to remain silent and/or requested the assistance of counsel. Only then may we determine whether any subsequent waiver occurred and whether it was made knowingly, intelligently, and voluntarily.

Because defendant did not testify either at the suppression hearing or at trial, to support his claim that his right to remain silent was not “scrupulously honored,” defendant relies upon the testimony of Sergeant Thomas O’Connor, who conducted the custodial interrogation of defendant. But at the evidentiary hearing O’Connor testified that he advised defendant of his Miranda rights prior to questioning and that defendant indicated that he understood these rights and wished to speak with the police without having an attorney present. Even O’Connor’s testimony on cross-examination did not establish that defendant asserted his right to remain silent, as can be seen from the following colloquy:

“Q. And when you went in alone [to begin questioning], what was the first thing you did?
A. Informed him of his Miranda warnings.
Q. And after that was done, what happened?
A. Also informed him he was identified in the line-ups.
Q. And what happened next?
A. Began questioning him in regards to his participation in these events, these crimes.
Q. And what happened?
A. We sparred for a while, yes and no.
Q. Let me interrupt. When you say ‘sparred’ what happened, what was said?
* * *
A. I had asked direct question [sic] ‘Did you in fact commit these crimes,’ or something. And he would smile and shake his head no. Like at this point he was not ready to admit anything, his participation. We continued talking. We talked about the crime. We talked baseball, we talked about a couple things.
* * *
Q. So he would say ‘No, I didn’t do the crime,’ and you would say what when he did that?
A. I would inform of the fact there is evidence showing that he did. And he would say, ‘Well, I’ll have to live with it.’ I said ‘Yes, you will.’ And then just out of the blue he decided to give a statement.”

We find nothing in this testimony to indicate that defendant invoked his right to remain silent. Rather, it seems to indicate that, although defendant agreed to speak with the officer, he maintained his innocence for a period of time before making an admission.

Furthermore, although we may consider evidence presented at trial when reviewing whether a defendant’s statements should have been suppressed (see People v. Caballero (1984), 102 Ill. 2d 23, 37, 464 N.E.2d 223, 229), we find nothing in Sergeant O’Connor’s trial testimony that convinces us that the trial court erred by admitting defendant’s statements. At trial, O’Connor testified as follows:

“Q. This was right after you told him he had been identified in a line-up, is that correct?
A. That’s right.
Q. After you read him his rights, did he tell you whether or not he wanted to talk to you at that point?
A. He denied it and said he would talk but he denied — .
Q. No my question right now is after you read him his rights, did he say, yes, I’ll talk to you, or did he say, no I don’t want to?
* * *
A. After I read him his rights, he just began talking and said he wouldn’t talk, but he talked, yes.
* * *
Q. Can you tell us what you said to him after you advised him of his Miranda rights, after having already told him he had been identified in a lineup?
A. I asked if he wanted to tell us what occurred, about his participation in it. I also informed him that his friend, [codefendant], had been identified in the lineup also. Then we just talked about where he lived. We talked about baseball.
Q. Let me ask you this. You asked him if he wanted to tell you about what had happened. Did he say anything about what had happened?
* * *
A. The best I can recall, he said, no, but smiling and shaking his head, yes, more or less. He said, no, but smiling.”

Defendant points to this testimony as support for his claim on appeal that he made a clear and unequivocal invocation of his right to remain silent which was not honored. We do not attribute to this testimony the meaning that defendant now ascribes to it. In fact, from our review of the entire record, it seems clear to this court that defendant at no time made any indication that he did not wish to speak to the officer, only that he initially did not wish to admit any culpability for the crimes for which he had been identified. In context, it is clear that the “No” answer, cited above, was in response to whether defendant wished to tell the officers what occurred, thereby admitting his involvement in the crime. This is supported by O’Con-nor’s trial testimony during cross-examination, wherein the following conversation took place:

“Q. Right. You talked about some baseball, and you had a friendly conversation, and then he confessed to this crime, is that a correct summary of what you testified to?
A. I also told him that we had a good case against him, he was identified in a lineup. The state’s attorney was on the way.
That was part of our conversation.
Q. That was the first thing you said to him, that he had been identified in a lineup. He — he denied committing the crime, is that correct, and then you chatted with him, and then he confessed, is that correct?
A. Yes, sir, pretty much so.”

We are aware of the United States Supreme Court decision, Smith v. Illinois (1984), 469 U.S. 91, 83 L. Ed. 2d 488, 105 S. Ct. 490, wherein the Court held that “an accused’s postrequest responses to further interrogation may not be used to cast doubt on the clarity of his initial request.” (469 U.S. at 92, 83 L. Ed. 2d at 491, 105 S. Ct. at 491.) However, in that case the accused’s statements were being recorded by a court reporter, so that it was clear from the record that the accused injected a clear and unambiguous request for counsel at the time he was being advised of his Miranda rights. In this case, however, as stated before, there was no evidence presented, at either the suppression hearing or at trial, that would indicate that defendant was asserting his right to remain silent. Therefore, we find it proper and necessary to consider all of O’Connor’s testimony in order to determine the context in which the statements attributed to defendant were made.

Having determined that defendant did not invoke his right to remain silent, we must now consider whether defendant’s waiver of his rights was knowing, intelligent and voluntary. Since the uncontroverted evidence is that defendant was properly admonished of his Miranda rights, we must determine whether defendant understood these rights and voluntarily waived them, whether he was coerced into making a statement or whether his will to remain silent was overborne. (See People v. Martin, 102 Ill. 2d at 426-27.) As stated earlier, to determine whether a statement was made voluntarily it is necessary to look at the totality of the circumstances and the court need not be convinced beyond a reasonable doubt, it need only appear from the manifest weight of the evidence that the statement was not the product of compulsion or inducement of any sort. People v. Cooney (1985), 136 Ill. App. 3d 989, 484 N.E.2d 802.

In this case defendant claims that the officer’s friendly conversation with him about baseball and other topics not directly related to the crime was an attempt to elicit an incriminating response and “undermine his will to resist.” Although the officer’s conversation with defendant may have been a tactical maneuver, we find nothing improper under the circumstances of this case. We have already determined that defendant did not express a desire to remain silent, so that the interrogation need not have ceased merely because defendant denied culpability. Thus, engaging defendant in friendly conversation was not a ruse used to compel defendant to speak against his will.

Furthermore, the record reveals that defendant was not subjected to lengthy interrogation, was not physically abused or threatened. He was also not promised anything in return for his confession. In fact, the evidence was to the contrary since O’Connor testified that when defendant asked whether he could “go light” on codefendant if a statement was given, defendant was told emphatically that the officer had no authorization to make a deal. In addition, it appears that defendant was of normal intelligence and had had contact with the criminal justice system on at least one prior occasion. We find that the manifest weight of the evidence supports the trial court’s determination that the totality of the circumstances indicated that defendant’s statements were made voluntarily.

We note too that defendant made a subsequent statement to the assistant State’s Attorney and that defendant raises no independent basis for his argument that this statement was involuntary. Rather, he claims that this statement was involuntary by virtue of the fact that it was tainted by the prior involuntary statement to Officer O’Connor. Having found that the statement to O’Connor was voluntary, it could not have tainted the subsequent statement to the assistant State’s Attorney and so we find this statement to have been voluntary as well.

We now consider whether defendant invoked his right to have counsel present at the time of questioning. The only evidence that defendant requested counsel came from the testimony of defendant’s aunt, Barbara Gelardi, at the suppression hearing. She testified that on March 4, 1985, between 9 and 11 p.m. she received a telephone call from defendant and that he indicated that he was at the police station at 39th and California and that “they” wouldn’t allow him to use the phone to call his mother or his lawyer.

As stated earlier, once the State has made a prima facie showing that defendant waived his Miranda rights, as the State did here, the burden is placed upon the defendant to produce sufficient evidence to rebut the State’s evidence. (People v. Reid, 136 Ill. 2d 27.) The trial court must then be convinced by a preponderance of the evidence that defendant waived his rights and that the waiver was knowing, intelligent and voluntary. (People v. Cozzi (1981), 93 Ill. App. 3d 94, 416 N.E.2d 1192.) In this case the trial court considered defendant’s evidence and found that it lacked credibility. Furthermore, the court found that, even if it were to believe that a telephone call took place, this testimony did not establish that defendant ever communicated a request for counsel to the police.

We agree that the evidence presented by defendant did not sufficiently rebut the State’s evidence and that the State met its burden of proving, by a preponderance of the evidence, that defendant waived his right to counsel. The testimony of defendant’s witness was highly questionable. For one thing, it was internally inconsistent since Gelardi testified that she received the telephone call on March 4, 1985, and that defendant indicated that he was at 39th and California. However, it was established that on March 4, 1985, defendant was at the station at 63rd and Louis and he was not moved to 39th and California until March 5, 1985. Furthermore, although Gelardi testified that she notified defendant’s mother that he was arrested and being held at the police station, defendant’s mother, who was present at the evidentiary hearing, did not corroborate this testimony.

Consequently, we conclude that defendant presented no credible evidence that he requested counsel at any time prior to his interrogation and that the trial court did not err by refusing to suppress defendant’s statements. We agree with defendant that the trial court’s alternative determination (that had defendant requested counsel on March 4, 1985, the subsequent interrogation on March 5, 1985, was proper due to sufficient attenuating circumstances) was erroneous. However, this does not necessitate reversal of the trial court’s ruling on the motion to suppress. When asked to review a trial court’s judgment, we need only affirm the correctness of that judgment and not the validity of the rationale and we may sustain the judgment based upon any reason discernible from the record. People v. Ortiz (1988), 170 Ill. App. 3d 1083, 524 N.E.2d 1050; People v. Bolden (1987), 152 Ill. App. 3d 631, 504 N.E.2d 835.

Defendant’s third issue asks whether it was error to have admitted into evidence testimony that defendant was arrested because the car he was driving matched a reported stolen vehicle. The trial court ruled, over defendant’s objection, that the evidence was admissible as “part of a continuing narrative which explained the circumstances surrounding the defendant’s arrest.” We agree.

Whether other crimes evidence should be admitted at trial is a decision left to the sound discretion of the trial court, which shall not be overturned absent a clear showing of an abuse of discretion. (People v. Young (1983), 118 Ill. App. 3d 803, 455 N.E.2d 845.) Other crimes evidence is inadmissible to show that the accused has a propensity to commit crimes, but is admissible for almost any other purpose. (People v. McKibbins (1983), 96 Ill. 2d 176, 449 N.E.2d 821.) For example, other crimes evidence is admissible to show motive, intent, knowledge, plan, design, or identification. (People v. Connor (1988), 177 Ill. App. 3d 532, 532 N.E.2d 520.) Another proper purpose is to explain the circumstances or context of the defendant’s arrest. People v. Bartall (1983), 98 Ill. 2d 294, 310, 456 N.E.2d 59; People v. Hunley (1989), 189 Ill. App. 3d 24, 42, 545 N.E.2d 188.

In the present case defendant was arrested over six months after the sexual assault for which he was being prosecuted. Thus, we believe that the trial court did not abuse its discretion by allowing the limited reference to the stolen motor vehicle offense to explain the context and circumstances of defendant’s arrest.

Defendant also argues that the trial court erred by instructing the jury that the other crimes evidence could be considered on the issue of identification of defendant as the offender. We note, however, that defendant did not object to this instruction at trial nor did he raise this claim in his post-trial motion. Therefore, the error, if any, was waived. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) But even if we were not to deem this issue waived, the giving of the instruction, if error at all, was not of the magnitude of plain error and, at best, was harmless error when viewed in light of the overwhelming evidence of defendant’s guilt. See People v. Bartall, 98 Ill. 2d 294, 456 N.E.2d 59.

Next, defendant argues that it was error to have admitted into evidence the contents of an Illinois Bell customer service record. Defendant charges that he was denied his right of confrontation by the admission of this “unreliable hearsay evidence” which, he claims, was not qualified as a business record.

The business record exception to the hearsay rule has been codified in section 115—5 of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 115—5). Subsection (a) states as follows:

“Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of such act, transaction, occurrence, or event, if made in regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter.
All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but such circumstances shall not affect its admissibility.”

See also People v. Holowko (1985), 109 Ill. 2d 187, 486 N.E.2d 877.

At trial the State produced evidence that on September 19, 1984, someone purchased a video cassette recorder at a J.C. Penny Co. store using J.S.’s credit card. The keeper of the records for Illinois Bell was permitted to testify that, according to their customer service records kept in the normal course of business, the telephone number that was given at the time the credit card purchase was made was registered to Stanley Gicla. Under these circumstances, the trial court properly ruled that this evidence was admissible pursuant to the business records exception to the hearsay rule.

Defendant also raises the oft claimed error of prosecutorial misconduct, arguing, specifically, that the prosecutor, in closing and rebuttal argument, exaggerated the evidence, distorted their burden of proof, misstated the function of the jury and engaged in character assassination of an essential defense witness. While certain comments made by the prosecutor, may not have been entirely appropriate, we do not find them to constitute reversible error.

In general, prosecutors are given rather wide latitude in their closing and rebuttal argument and the only requirement is that it be based on the evidence or be a reasonable inference drawn therefrom. (People v. Hunley, 189 Ill. App. 3d at 43.) When reviewing allegations of prosecutorial misconduct, the complained-of remarks must be considered in the context of the entire closing arguments of both the State and the defendant (People v. Cisewski (1987), 118 Ill. 2d 163, 175-76, 514 N.E.2d 970) and where the complained-of remarks are within the rebuttal argument, they will not be held improper if they appear to have been provoked or invited by the defense counsel’s argument. (People v. Lyles (1985), 106 Ill. 2d 373, 390, 478 N.E.2d 291.) Even where a comment or remark is found to be improper, it will not be grounds for reversal unless it results in substantial prejudice to defendant. (People v. Morgan (1986), 112 Ill. 2d 111, 132, 492 N.E.2d 1303.) Furthermore, if the improper remark was unobjected to at trial and not raised in the post-trial motion, any error is waived (People v. Cisewski, 118 Ill. 2d 163, 514 N.E.2d 970) unless the remarks are so prejudicial as to deprive defendant a fair trial or so flagrant as to threaten deterioration of the judicial process. People v. Ferguson (1988), 172 Ill. App. 3d 1, 526 N.E.2d 525.

In this case defendant calls into question several remarks made by the prosecutor, only one of which was objected to at trial. Thus any error could be deemed waived. However, even if not waived, our examination of the record discloses no error. Defendant contends that the State exaggerated the identification testimony that was given by the victim when it suggested that a “snapshot” or “camera in [her] mind” went off. But our review convinces us that this argument was merely an allowable inference that could be drawn from the evidence.

Defendant also argues that when the State indicated in rebuttal that “[apparently, [defense] counsel would have you believe” that co-defendants were “framed” and later denied that a “conspiracy” existed, this argument was an attempt to distort the burden of proof. But these remarks, examined in context, were responses to defense counsel’s argument. Nor do we believe that the State’s comment “she [the victim] depends on you for justice” was a perversion of the nonpartisan nature of the jury. (See People v. Thomas (1986), 146 Ill. App. 3d 1087, 497 N.E.2d 803.) Rather, it appears to urge the fearless administration of justice (see People v. Stiff (1989), 185 Ill. App. 3d 751, 542 N.E.2d 392) and as such, it was proper.

The only complained-of remark which was objected to at trial was made in reference to defendant’s expert witness. The trial court upheld the objection and instructed the jury to disregard it. This instruction corrected the error. (People v. Cisewski, 118 Ill. 2d 163, 514 N.E.2d 970.) Although defendant also argues that the State engaged in “character assassination” of this expert witness when the prosecutor referred to him as a “hired gun,” this remark was not objected to at trial. While we do not approve of such remarks, it, too, appears to be a response to defendant’s closing argument, wherein the expert was declared “not in the least bit prejudiced” in favor of the defendant.

Finally, even if we had found any portion of the prosecutor’s closing and rebuttal arguments to have been improper, it could not have substantially prejudiced defendant in light of the overwhelming evidence against him and so would not have warranted reversal. People v. Morgan, 112 Ill. 2d 111, 492 N.E.2d 1303.

In his last issue on appeal defendant asks this court to exercise its authority pursuant to Supreme Court Rule 615(b)(4) (107 Ill. 2d R. 615(b)(4)), to reduce his sentence to a nonextended term of years. For reasons which follow, we decline defendant’s invitation to decrease his term of imprisonment.

Defendant was found guilty of aggravated criminal sexual assault, a Class X felony, which carries a sentence of not less than six years and not more than 30 years. (Ill. Rev. Stat. 1985, ch. 38, pars. 12—14(c), 1005—8—1(a)(3).) However, at the sentencing hearing, the State asked that defendant be sentenced pursuant to the extended-term provision of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—2(a)(2)), which would allow for a term of up to 60 years’ imprisonment to be imposed. The State argued that defendant was eligible for an extended term under sections 5—5— 3.2(b)(1), (b)(2), and (b)(5) of the Code. (Ill. Rev. Stat. 1989, ch. 38, pars. 1005—5—3.2(b)(1), (b)(2), (b)(5).) In addition, the State provided the trial court with evidence that in 1969 defendant had been charged under nine separate indictment numbers with a variety of crimes, including rape (three separate indictments), aggravated battery, aggravated assault (two separate indictments), theft (two separate indictments), robbery, armed robbery, and theft of an automobile. Defendant pled guilty and was convicted of these crimes and later sentenced to concurrent terms of 9 to 15 years’ imprisonment. Defendant was also convicted in 1981 of attempted robbery and sentenced to 30 months’ incarceration. After hearing this evidence and other proffered factors in aggravation and mitigation, the trial court sentenced defendant to the maximum extended-term sentence of 60 years’ imprisonment, stating:

“Further, the record of this particular defendant which includes prior convictions of rape, there is every reason to believe the defendant would, that if given the opportunity, he would commit precisely the same kinds of acts.
I believe it is essential that he be removed from society for as long as possible for the protection of all members of society. I have considered the matters brought to my attention by way of hearing here this afternoon and by way of the presentence report. I believe that he is eligible for the extended term on each three sections [sic] made reference to by the State; and I would further note that if it is found that he is eligible only on one of the three, the sentence would remain the same.”

Now on appeal, defendant challenges his extended-term sentence on two grounds: (1) that he was not eligible for an extended term under section 5—5—3.2(b)(1); and (2) that, although he was eligible for an extended term under sections 5—5—3.2(b)(2) and (b)(5), the fact that the trial court did not impose an extended term on codefendant Gicla precluded the imposition of the extended term on him.

We first address defendant’s contention that he was not eligible for an extended term pursuant to section 5—5—3.2(b)(1). Defendant presents two arguments in support of this position: (a) that his 1969 convictions may not be used to enhance the sentence to an extended term because they did not occur within the 10-year period prior to his current conviction; and (b) that his 1969 rape conviction was not a conviction for a crime of the same or greater class as his current conviction.

We note that section 5 — 5—-3.2(b)(1) states as follows:

“[T]he following factors may be considered by the court as reasons to impose an extended term sentence under section 5— 8 — 2 upon any offender who was at least 17 years old on the date the crime was committed:
(1) When a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, within 10 years, excluding time spent in custody, and such charges are separately brought and tried and arise out of different series of acts.” (Emphasis added). Ill. Rev. Stat. 1985, ch. 38, par. 1005-5-3.2(b)(l).

We interpret this statute to mean that defendant would be eligible for an extended-term sentence if he committed a felony in Illinois, which was of equal or greater classification, within a 10-year period prior to his current conviction, exclusive of time spent in the custody of any State or Federal correctional authority. (See People v. Robinson (1982), 89 Ill. 2d 469, 433 N.E.2d 674.) The date of sentencing, in this case, November 14, 1986, is the date of defendant’s current conviction for purposes of applying this statute. (See Robinson, 89 Ill. 2d at 476-77.) This means that if defendant committed a Class X felony within a 10-year period prior to November 14, 1986, then he would be eligible for an extended-term sentence. Any time spent in the custody of State or Federal authorities may not be considered as part of the 10-year period.

In this case defendant’s prior crimes were committed in 1969 and he was incarcerated until September 1976, when he was paroled. Defendant argues that the 1969 convictions may not be considered because he was no longer “in custody” as of September 1976 and, thus, his 1969 convictions fall outside the 10-year time frame. The State, however, argues that defendant would still have been on parole in November 1976 and, as such, would have been “in custody” within the meaning of the statute. We agree.

When defendant was paroled in 1976, article 123 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1971, ch. 38, par. 123—1 et seq.) would have governed defendant’s status upon parole. According to section 123—4 (Ill. Rev. Stat. 1971, ch. 38, par. 123—4), defendant could not have been discharged from parole unless he served at least six months and he had not violated any laws or conditions of parole during the six-month period. Only then, upon approval of the Governor, would defendant have been eligible for “final release,” which would “operate as a commutation of sentence and release of such person from supervision and custody.” Consequently, defendant was undoubtedly “in custody” within the meaning of the statute, in November 1976 and, therefore, any of defendant’s 1969 convictions, if Class X or greater, could be considered and would support the application of the extended term.

As an aside, we note, too, that defendant had additional arrests and convictions within the period between November 1976 and November 1986. While it does not appear that any conviction was for a Class X felony (attempted robbery conviction on September 3, 1981), defendant was incarcerated for this conviction for approximately one year, until September 1982, when he was paroled. Since defendant would have been “in custody” during the periods of his incarceration, parole and/or mandatory supervised release, these periods, too, may be deducted from the 10-year period when applying the extended-term provision in the statute. See People v. Robinson, 89 Ill. 2d 469, 433 N.E.2d 674.

This brings us to the second prong of defendant’s argument, whether defendant’s prior conviction for rape was a conviction for the same or greater class felony as his current Class X felony for aggravated criminal sexual assault. Defendant argues that when he was convicted for the offense of rape in 1969, the offense was unclassified. But when comparing the elements of that offense to the current classifications for sex offenses, the offense of rape would constitute the offense of criminal sexual assault, a Class 1 felony. Consequently, defendant contends that his 1969 conviction for rape should be deemed a Class 1 felony and, as such, it may not serve to enhance his current sentence to an extended term. We disagree. This exact argument was rejected in People v. Sims (1988), 166 Ill. App. 3d 289, 304, 519 N.E.2d 921, which held that a 1965 conviction for rape could be considered as a Class X felony, since the offense of rape, prior to the abolition of that offense category in 1984 with the introduction of the amendatory act of 1983, was a Class X felony. See also People v. Terry (1988), 177 Ill. App. 3d 185, 532 N.E.2d 568.

Whats more, although defendant states that the most serious offense for which he was convicted, prior to his current conviction, was rape, our review of the record discloses that defendant was also convicted in 1969 of armed robbery, a Class X felony, and thus, this conviction, too, could serve as the predicate felony for applying the extended term.

Lastly, as defendant concedes, he is eligible for an extended-term pursuant to sections 5—5—3.2(b)(2) and (b)(5). We believe that the fact that the trial court did not choose to use these provisions, although applicable, to impose an extended-term sentence on codefendant Gicla, does not serve to preclude their use to impose an extended term on defendant. Each defendant is to be sentenced as an individual. When fashioning a proper penalty, the trial court may consider the degree of each defendant’s participation in the offense and recognize the differences in the defendants’ rehabilitative potential, background and criminal record. (People v. Diaz (1989), 189 Ill. App. 3d 473, 478, 545 N.E.2d 399; People v. Barfield (1989), 187 Ill. App. 3d 190, 204-05, 543 N.E.2d 812.) A reviewing court should give great weight to the judgment of the sentencing court and, absent a clear showing of an abuse of discretion, the trial court’s sentence may not be altered. People v. Godinez (1982), 91 Ill. 2d 47, 55, 434 N.E.2d 1121; People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882.

We find that in this case the trial court did not abuse its discretion and that the disparity between the sentences of defendant and codefendant was justified by the fact that defendant had an extensive criminal history, which included conviction for similar sex crimes, and because the record indicates that defendant’s degree of participation in the present offense was greater and that he was the defendant who was armed with a knife and threatened the victim’s life.

The judgment and sentence entered by the circuit court of Cook County is affirmed.

Affirmed.

COCCIA, P.J., and LORENZ, J., concur.