author: JUSTICE HENRY LEWIS JUSTICE HARRISON,

text:
    LOUIS F. WIENEKE, Plaintiff-Appellant, v. BERNARD WEITEKAMP et al., Defendants-Appellees.
    Fifth District
    No. 5—90—0277
    Opinion filed May 27, 1992.

      HARRISON, J., concurring in part and dissenting in part.
    Jeanne L. Sathre, of Lakin & Herndon, P.C., of Wood River, for appellant.
    Stephen R. Cullison, of Cullison & Vandever Law Office, of Hillsboro, for appellee Bernard Weitekamp.
    Evan H. Johnson, of Armstrong, Winters, Prince, Featherstun & Johnson, of Decatur, for appellee Nokomis Township.
    William L. Berry, of Dunham, Boman & Leskera, of East St. Louis, for appellee Montgomery County.
   JUSTICE HENRY LEWIS

delivered the opinion of the court:

The plaintiff, Louis E Wieneke, brought suit against the defendants, Bernard Weitekamp, Nokomis Township, and Montgomery County, seeking compensation for personal injuries suffered in an automobile accident on June 23, 1984. The plaintiff allegedly suffered injuries to his back when he swerved to avoid hitting Bernard Weitekamp’s vehicle as it emerged from an intersection. The plaintiff swerved onto the shoulder of the road upon which he was traveling, and his vehicle bounced over a storm sewer or inlet. The two vehicles did not collide. Plaintiff struck the door handle inside the car on the driver’s side. As the plaintiff approached the intersection, he was traveling in a northeasterly direction on Illinois Route 16; defendant was traveling north on Nokomis Township Road. The trial court entered summary judgment in favor of both Nokomis Township and Montgomery County and against the plaintiff. Thereafter, the trial court conducted a bench trial to determine the validity of a release of all claims against Bernard Weitekamp and his insurer executed by the plaintiff prior to the institution of suit. The plaintiff alleged that the release was executed under a mutual mistake of fact as to the nature and extent of his injuries. The trial court determined the issue of the validity of the release to be, in essence, an action for declaratory judgment for which no right to jury trial exists. Following the bench trial on this issue, the trial court entered judgment in favor of Bernard Weitekamp and against the plaintiff and dismissed the complaint with prejudice.

The plaintiff appeals, presenting four issues for review: (1) whether the trial court erred in disallowing plaintiff’s request for a jury trial on the issue of the validity of the release and in deciding this issue and the issue of mutual mistake of fact as a matter of law in favor of the defendant Weitekamp; (2) whether the trial court erred in granting the motion of Nokomis Township for summary judgment “on the grounds that the sewer inlet that caused the Plaintiff’s injuries was not created or maintained by Nokomis Township and that Nokomis Township owed no duty to Plaintiff, where the sewer inlet was located at an intersection of a Nokomis Township road and a state highway”; (3) whether the trial court erred in granting the motion of Nokomis Township for summary judgment “on the grounds that Plaintiff’s driving over a sewer inlet in order to avoid collision with another vehicle was a remote possibility not giving rise to a legal duty”; and (4) whether the trial court erred in granting the motion of Montgomery County for summary judgment on the grounds that this defendant owed plaintiff no duty.

With respect to the issue pertaining to the release, the plaintiff maintains that in Illinois the question of whether a release is voidable for mutual mistake of fact involves questions of fact to be determined by the trier of fact, namely, a jury if one is requested. Plaintiff contends that in deciding these questions of fact “as questions of law,” the trial court deprived him of his right to trial by jury.

As was stated in Welsh v. Centa (1966), 75 Ill. App. 2d 305, 221 N.E.2d 106, Illinois follows the majority of jurisdictions in allowing a court to set aside a release executed by a tort victim when the facts indicate that the parties were mutually mistaken as to the extent of the releasor’s injuries. In order to avoid the document, the mistake must be mutual, material to the transaction, and affect its substance. (Meyer v. Murray (1979), 70 Ill. App. 3d 106, 387 N.E.2d 878.) The rescission or avoidance of a release is a form of equitable relief. (Welsh, 75 Ill. App. 2d 305, 221 N.E.2d 106.) When determining the validity of a release, the controlling issue is whether the circumstances surrounding the settlement clearly indicate that the release was executed under a mutual mistake of fact as to the plaintiff’s injuries so that the trial court, in the exercise of its equitable powers, should set aside the release in order to prevent an unconscionable result. (DeMarie v. Baltimore & Ohio Chicago Terminal R.R. Co. (1979), 79 Ill. App. 3d 50, 398 N.E.2d 248.)

“The first part of this test, namely determining whether the parties were acting under the mutual mistake of fact regarding the extent of plaintiff’s injuries, is a question to be resolved by the trier of fact. (Reede v. Treat (1965), 62 Ill. App. 2d 120, 210 N.E.2d 833.) So, too, are other circumstances surrounding the release such as the mental capacity of the releasor. (Bowman v. Illinois Central R.R. Co. (1957), 11 Ill. 2d 186, 142 N.E.2d 104.) Resolution of these issues is properly made by either the judge or jury. Such is not the case, however, with the second half of the test: determining whether the release should be set aside in order to prevent an unconscionable result. As noted in Kiest [v. Schrawder (1978), 56 Ill. App. 3d 732, 372 N.E.2d 442], this is the primary consideration when determining the validity of a release. It is a question ‘for the chancellor in equity who is vested with that degree of discretion and flexibility necessary to the doing of justice under the circumstances of each individual case.’ (Ruggles v. Selby (1960), 25 Ill. App. 2d 1, 12, 165 N.E.2d 733, 739.) For this reason the trial court often conducts a separate hearing to determine the validity of the release and if invalid, the case on the merits is submitted to the jury.” (DeMarie, 79 Ill. App. 3d at 53.)

Whether enforcement of the release would produce an unconscionable result is a question of law to be determined by the trial court, not by a jury. DeMarie, 79 Ill. App. 3d 50, 398 N.E.2d 248.

The plaintiff herein argues that whether the judge or the jury decides the first part of this test, that is, whether the parties were acting under a mutual mistake of fact concerning the extent of the plaintiff’s injuries, depends upon the will of the parties and that if a party requests that a jury decide the first part of the test, the request is to be granted because this is a question of fact. We disagree. Section 2 — 1111 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1111) provides: “The court may in its discretion direct an issue or issues to be tried by a jury, whenever it is judged necessary in any action seeking equitable relief.” The granting of a jury trial where equitable relief is sought is discretionary with the trial court. (Djomlija v. Urban (1982), 107 Ill. App. 3d 960, 438 N.E.2d 558.) Inasmuch as the rescission or avoidance of a release is a form of equitable relief, the granting of a jury trial where such relief is sought is discretionary with the trial court. Although the trial court may in its discretion direct the factual issue of whether the parties were acting under a mutual mistake of fact concerning the extent of the plaintiff’s injuries to be tried by a jury whenever it is judged necessary, the trial court is not required to do so. The plaintiff makes no suggestion that the trial court abused its discretion in this regard. The plaintiff was not, as he asserts, deprived of his right to trial by jury. The trial court did not err by considering the question by bench trial whether the parties were acting under a mutual mistake as to the extent of the plaintiff’s injuries.

In order to set aside a release, the party urging the invalidity of the document has the burden of proving by clear and convincing evidence that there was a mutual mistake of material fact and that the result is unconscionable. (Newborn v. Hood (1980), 86 Ill. App. 3d 784, 408 N.E.2d 474; Welsh, 75 Ill. App. 2d 305, 221 N.E.2d 106.) The judgment of the trial court will not be disturbed unless it is manifestly contrary to the weight of the evidence. (Child v. Lincoln Enterprises, Inc. (1964), 51 Ill. App. 2d 76, 200 N.E.2d 751.) The mistake must be mutual, and a unilateral or self-induced mistake of fact will be insufficient to void a release. (Martin v. Po-Jo, Inc. (1969), 104 Ill. App. 2d 462, 244 N.E.2d 851.) When the circumstances surrounding a settlement clearly indicate that settlement was executed under a mutual mistake of fact, the court may act to prevent an unconscionable hardship to the injured party; among such circumstances are a great discrepancy between the amount of the settlement and the amount of ensuing damages, the exercise of pressure to make the settlement, the superior position of an affluent defendant over a needy plaintiff, and the occurrence of an unforeseen and extraordinary complication in the known injuries. (Welsh, 75 Ill. App. 2d 305, 221 N.E.2d 106.) However, this remedy must exist in harmony with the policy of encouraging settlement and ending litigation. Welsh, 75 Ill. App. 2d 305, 221 N.E.2d 106.

The plaintiff contends that the conclusions of the trial court were manifestly incorrect and against the weight of the evidence. At the bench trial conducted on November 2 and 7, 1989, the evidence showed that after negotiations with the plaintiff the defendant’s insurer, Country Companies, who was also the plaintiff’s insurer, offered to settle the plaintiff’s claim by the use of a structured settlement costing Country Companies approximately $66,000 and providing benefits of approximately $477,000 to plaintiff. The proposed settlement, which the plaintiff accepted in the presence of his father on May 20, 1985, provided for a lump-sum payment of $25,000, the waiver of a subrogation claim of $10,000 for medical payments, and an annuity, purchased for about $31,000 by Country Companies, of $1,843.27 per month for 20 years, which was to commence 15 years after the date of settlement.

Plaintiff asserts that when he signed the release he believed that his back condition was permanently relieved and that he was about to return to work. Approximately nine months after the accident on June 23, 1984, and about two months before plaintiff executed the release on May 20, 1989, Dr. Anthony Marrese performed a lumbar laminectomy on March 13, 1985, to remove the herniated portion of the disc at L4-5 allegedly resulting from the accident. After the surgery, the plaintiff enjoyed dramatic relief from the symptoms he had experienced almost immediately after the accident and for which he had been treated by numerous doctors of his own choosing. Shortly after the release was signed and contrary to plaintiff’s expectations, he said, he began to experience a recurrence of symptoms and was found to have a recurrent disc prolapse at L4-5, which was corrected surgically by Dr. Paul Young on September 18, 1987. Plaintiff stated that although he had expected to return to his work of performing physical examinations upon applicants for life insurance shortly after executing the release, he was unable to return to any kind of work until July of 1987, when he opened a video store. Following execution of the release, he incurred additional medical expenses of about $11,000 and lost wages of about $21,000 per year, diminished by about $300 per month after July of 1987 by the proceeds of the video store. At the time of trial he was engaged in farming. He had incurred medical expenses of about $31,000 and lost wages of about $21,000 prior to the execution of the release.

Testifying by evidence deposition taken on behalf of the plaintiff on October 20, 1989, Dr. Marrese indicated that in a report dated April 4, 1985, he had stated that the plaintiff’s prognosis at that time was guarded but that he did think the plaintiff would be able to return to gainful employment in the future. Dr. Marrese testified:

“We warn all our patients it’s possible to rupture the same time [sic] disk more than once because we only take out the part of the disk that is pressing on the nerve. There still may be other parts of the disk that is [sic] ruptured, herniated, slipped out of place. We only remove the pressure from the nerve, and more disk can come out of the innerspace like an uncapped tube of toothpaste. And 25 percent of patients have to have repeat surgery.”

Dr. Marrese indicated that he had discussed this possibility with plaintiff when recommending the surgery he performed and that plaintiff was aware that in surgery of this kind there is an approximate 25% chance of a need for future surgery and that a possible rehemiation of the disc and a possible need for future surgery is the foreseeable result in at least 25% of cases of this kind. He described it as a foreseeable, published complication of this surgery. The plaintiff testified that Dr. Marrese had not told him that after the operation there was a 25% chance he would need further surgery.

George Ginos, an attorney whom the plaintiff had called the day the accident occurred, testified that he had had “at least several dozen” conversations with the plaintiff between June 23, 1984, and the time plaintiff executed the release. He stated that the plaintiff had consulted him concerning the amount he should seek in damages or the advisability of certain amounts in settlement and that he had offered his opinion or advice concerning amounts in settlement. The witness testified that the plaintiff specifically told him that he did not want him to contact Country Companies and never requested that he conduct settlement negotiations for the plaintiff or talk to representatives of Country Companies for him. The plaintiff indicated to the witness that plaintiff and his father would negotiate with Country Companies concerning settlement and that his father would be assisting him in his settlement negotiations. The witness said that he had never contacted Country Companies to inform the insurer that he was an attorney for plaintiff because plaintiff had requested that he not do so. Although the witness had prepared a lien waiver, he did not send it to Country Companies because the plaintiff had asked him not to be involved in his negotiations with Country Companies. The plaintiff had, he said, talked to him about the settlement shortly before May 20, 1985, and the witness had offered his opinions concerning the merits and advisability of structured settlements. He had advised the plaintiff concerning the tax consequences of a settlement. The witness recalled at least two conversations concerning the merits of the general nature of the settlement. The witness testified that initially he had assumed that he had been retained to do “everything” for the plaintiff with regard to his case, but that after he had explained to the plaintiff what he thought the value of the case was and what his fee would be, plaintiff advised him that he did not want him to negotiate it. Thereafter, the witness restricted himself to advising plaintiff with respect to the merits of specific figures or proposals. He said that when the settlement was entered into he thought that the plaintiff was going back to work. The plaintiff testified that he had never told George Ginos that he and his father were going to conduct the settlement negotiations and that he did not direct George Ginos not to negotiate his case. The plaintiff stated that he believed he had not discussed the structured settlement with George Ginos but that he had talked with George Ginos’ son and his secretary.

James Duncan, a claims supervisor for Country Mutual Insurance, testified that the limits of liability on the defendant’s policy were $100,000 per person. He indicated that his file contained Dr. Marese’s narrative report describing the plaintiff’s prognosis as “guarded.” He indicated further that, based on the information in the file and what the plaintiff had told him, he had felt that there was a “good chance” that the plaintiff would soon be able to return to work. He had first conferred with the plaintiff in January of 1985, at which time he considered plaintiff’s demand of $500,000 unreasonable. He stated that the plaintiff had indicated that he had had an attorney with whom he had spoken, but that he had not hired the attorney and was still conducting his own negotiations and representing himself. Although the plaintiff indicated at the end of that conversation that he would be hiring George Ginos, and the witness said that he would wait to hear from the attorney, late in March or early in April of 1985 the plaintiff stated to him that he had changed his mind and that he was representing himself, saying “that he didn’t want an attorney coming off with a lot of his money.” The witness indicated that after that time the plaintiff “was always wanting to talk to somebody from the company to go forward with the negotiations.” On April 19, 1985, the witness talked with plaintiff and his father, at which time plaintiff was, he said, “certain” that he preferred a 15-year deferment as opposed to a 10-year one:

“And I think it meant a great deal to him that the 15-year deferment would net him almost a half a million dollars, which was his original demand, because he made the comment and kind of laughed and said, ‘Well, I wasn’t so far off in my de-
mand originally after all and you guys eventually ended up paying.’ ”

The witness stated that he had relied upon Dr. Marrese’s report because he had been the plaintiff’s surgeon and the report was comprehensive and “seemed to summarize everything.” The witness said he was never certain, while the settlement was negotiated, of the date on which the plaintiff would return to work. He testified that during the 30 days before the release was executed there were “at least six or eight times” when the plaintiff and the witness or other members of the insurer’s staff were in communication “[ajnd most of it was initiated by Mr. Wieneke wanting to know how soon, you know, were we going to be able to make the settlement and how soon was he going to get his money.” The witness, plaintiff, and plaintiff’s father were present at the execution of the release. Neither plaintiff, who was approximately 23 years of age at that time, nor his father requested a delay so that an attorney or anyone else might be present. The witness denied that he had threatened to prolong the matter if the plaintiff refused to execute the agreement.

The plaintiff testified that from the time of the accident until May 20, 1985, he had talked with George Ginos “at least once a day probably, sometimes twice a day.” He said that George Ginos had “never actually helped” him in negotiating a settlement of his case: “At the time that all this came up, he was on vacation.” During the period of settlement negotiations, he said, George Ginos was out of town: "I had nobody else to speak to except my father.” George Ginos had told him earlier, he said, that he was going to ask for $500,000. At the time he executed the release he understood that he was about to return to work. He stated that on May 20, 1985, immediately before signing the release, he had asked James Duncan “what would happen if there was more medical bills, what would happen if there was, you know, something came up in, you know, my health or something” and that that was how he had learned about the assignment of benefits: “That they know [sic] they weren't going to give me anything else, but I could use the assignment part of the policy for money.” He testified that on “several occasions” he had told James Duncan that he wanted to review the document with an attorney but that he had responded, “ ‘No. If we’re going to do it, we’re going to do it now’ ” and that on May 20, 1985, when the release was executed he had said “it would be a long time before I ever saw any money, he could make sure of that, they would draw it out in court.” He stated that he had never told James Duncan that he did not want to have an attorney represent him because he did not want the attorney to take a large part of his settlement. During the 30 days prior to execution of the release he had, he said, “[p]ossibly” called the insurer at least three times a week wanting to know if settlement could be made soon; he had made the calls himself. After his operation he had demanded of James Duncan $500,000 to settle the claim. He had chosen the 15-year deferment rather than the 10-year one because it would pay more money “in the long run.” He stated that when he executed the release he had told James Duncan he was happy because the amount of money, including the annuity in the sum of about $442,000, that he would receive approached the $500,000 he had originally requested. At the time he signed the release he understood, he said, that it applied to all claims for damages that had occurred in the past as well as any that might arise in the future. He had seen a doctor last in approximately December of 1987 and has received no medical treatment for his back since that time.

In its judgment the trial court stated among its extensive findings:

“Plaintiff knew when he executed the release that only two months had passed since his surgery, that there was a 25% chance of a prolapsed disc and that his doctor’s prognosis for him was ‘guarded.’ Thus plaintiff has failed to prove by clear and convincing evidence that he did not make the settlement in spite of unresolved physical problems of which he was aware.
The settlement was reached eleven months after the occurrence and it was plaintiff who pressured Country Companies to come to a settlement, not vice-versa. Thus plaintiff has failed to prove by clear and convincing evidence that the insurance adjuster pressured him into signing the release.
The plaintiff consulted at least ten health care professionals and, repeatedly, an attorney before he executed the release over the eleven months between the occurrence and the settlement. Thus plaintiff has failed to prove by clear and convincing evidence that he did not have ample time to consult with physicians and attorneys.
The consideration given for the release, whether viewed from the insurance company’s perspective ($66,000.00) or from plaintiff’s perspective ($475,000.00 + ) is not nominal. Plaintiff will receive very close to what plaintiff demanded in settlement. And even considering plaintiff’s prolapsed disc, additional claimed lost wages, additional medical expenses and the claimed permanent nature of his disability the amount to be received by the plaintiff as a result of this settlement is not ‘unconscionable.’ ”

The trial court plainly resolved certain questions pertaining to the credibility of the witnesses against the plaintiff, as is within its province to do as trier of fact. Its judgment that the plaintiff failed to prove by clear and convincing evidence that there was a mutual mistake of material fact and that the result is unconscionable is not contrary to the manifest weight of the evidence. Accordingly, we do not disturb it. The judgment in favor of the defendant Bernard Weitekamp and against the plaintiff is affirmed.

With respect to the granting of summary judgment in favor of Nokomis Township, plaintiff contends that the record establishes that there are issues of fact as to who controlled the storm inlet, which should have precluded entry of summary judgment. In his second amended complaint the plaintiff alleged that Nokomis Township had been negligent for failure to provide warning of or to barricade the storm sewer; for failure to maintain the storm sewer in a safe and suitable manner; for failure to erect and construct the storm sewer properly so as not to create a dangerous condition; or for allowing the storm sewer to exist in close proximity to a public thoroughfare in a dangerous condition. Summary judgment shall be rendered without delay if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c).

In support of its motion for summary judgment, Nokomis Township submitted the affidavit of Arthur J. Loebach, superintendent of highways for the County of Montgomery, who stated that in this capacity he has knowledge of all roadways and bridges under his supervision and required to be maintained by Montgomery County. He stated that the roadway in question, Illinois Route 16, is under the control of and is maintained by the State of Illinois. Further, the affiant stated:

“[Njeither the County of Montgomery nor any of its employees, agents, or assigns are responsible for the design, maintenance, care or control of the highway and specifically of the drainage area which is alleged by Plaintiff to be defective and a proximate cause of Plaintiff’s injuries. Said highway and drainage area were designed and remains [sic] under the custody and control of the State of Illinois.”

Arthur Loebach testified in a discovery deposition taken on October 19, 1987. This deposition was submitted in support of the motion for summary judgment of the defendant Montgomery County that was granted by the trial court on November 28, 1988, prior to the granting of the motion of the defendant Nokomis Township for summary judgment on September 15, 1989. Both the plaintiff and the defendant Nokomis Township rely upon this deposition in their briefs. The witness indicated that his department had surveyed the area in question “trying to figure out who really does have jurisdiction over this particular inlet.” The witness stated that since the catch basin or inlet is over 10 feet inside the existing right-of-way of the State of Illinois, he assumed that the maintenance of the inlet fell within the jurisdiction of the State of Illinois. He stated that “[a]ny distance inside the right-of-way should be maintained by the State of Illinois” and that “this happens to be well within that boundary. It is not even close to the right-of-way line. It is eleven point three (11.3) feet inside.” He expressed the belief that he has no responsibilities with respect to maintenance within the limits of the right-of-way of the State of Illinois. Since November 1987, he said, his department has maintained the “stop ahead” signs. It also maintains the green rural reference signs, but “[a]s far as directional, warning, regulatory signs, to our belief they are all State of Illinois Highway Department.” He described the jurisdictional relationship between the Superintendent of Highways of Montgomery County and Nokomis Township as strictly “advisory.” The witness, who did not hold his present office on the date of the accident, indicated that if his office sees or knows of a dangerous situation, it will voluntarily so advise the township. Asked whether the county has the authority to make the change without action by the township, he answered, “If worse came to worse and it was a dangerous situation, yes, we would. We would have to.” Asked, “In other words, had the township come to you with respect to the particular intersection of TR-123 [Nokomis Township Road] and Illinois Route 16, with respect to certain questions relevant to the catch basin, would your office have rendered or served in an advisory capacity in that sense?” the witness answered, “My answer at that point would have been to stay away from it. We did not have jurisdiction over it.” He indicated again that the jurisdiction belonged to the State of Illinois. He testified he does not know how old the catch basin is but that to his knowledge the highway commissioner for the Nokomis Township Road District has never performed any maintenance work on this catch basin or inlet. Asked, “With respect to your conversations with any of the persons involved with the Illinois Department of Transportation, have they ever taken a position as to whether or not it is or is not their inlet or catch basin?” the witness responded, “They don’t know.” He did not know whether the Illinois Department of Transportation has exercised any maintenance or control over the catch basin. In his opinion, the catch basin or inlet did not fall within the jurisdiction of Nokomis Township or the Nokomis Township Road District.

Rae E. West testified by discovery deposition taken on August 18, 1988, that he had retired in September of 1987 as highway commissioner of Nokomis Township. During his 10-year tenure, he said, he had never been advised by the county road commissioner that there was something wrong with one of his township roads and that he thought he ought to fix it. Concerning the relationship between his office and that of the Montgomery County road superintendent, he said, “If something comes up where we don’t fully understand, all commissioners will go down and talk to our highway superintendent”; “[a]Il the township road commissioners are supposed to work together along with the county road commissioner.” He testified that the State of Illinois maintains the approach, called an “apron,” to all State highways: “The state takes care of that. All aprons, we are not allowed to mess with the aprons at all on the highways.” He stated further, “We are not allowed behind the apron or up on the apron. We can’t oil it.” The apron of State Route 16 extends for 13 feet and 8 inches away from the highway itself. He described the apron as being part of the State highway system. The township road runs right up to the apron of the State highway. “Even if there are holes, we can’t go in and patch the aprons. There is no way.” He indicated that his office does no maintenance work at all for a distance of 13 feet and 8 inches from the right-of-way line of Illinois Route 16. Nokomis Township has never maintained the catch basin or inlet. He testified that when the State blacktopped and improved the shoulder of the highway “they blacktopped around that catch basin.” He would not have put blacktop around the catch basin, he said, because to do so “built it up higher”; on the contrary, he would have raised the grade so that it was even with the road if he were going to blacktop around the inlet. Asked whether he had records at his facility that would indicate that his office had installed the inlet in question, the witness responded, “I don’t know why the township would install that there. I don’t know why there would be a reason to put it there, because that carries state water.” The purpose of the catch basin is, he said, to get rid of water from the State highway. The apron is “basically the slope, what the state wants to do is make sure there is proper slope from the state highway that is usually higher.” “So they have to put those aprons,” or ramps, “out there if they want Route 16 to be much higher than our road.” When the apron is not at an intersection of a road, as here, the apron forms the shoulder of the road. He indicated that the “County” had told him that the catch basin did not fall within the right-of-way of both the State and the township.

Leslie E. Nichols, a district maintenance engineer for the Illinois Department of Transportation, testified in a discovery deposition taken on February 11, 1988. His district includes all of Montgomery County; crews under his authority are responsible for the maintenance and care of Illinois Route 16 in Montgomery County. He stated that local authorities are responsible for maintaining a side road or a road crossing Illinois Route 16 “[r]ight up to our pavement edge.” He described this as a statewide, not a local, policy. He stated that, with regard to a side road or a crossroad, “[generally,” even though a particular inlet or drainage system may fall within the State right-of-way, the maintenance requirements are placed upon the local entity, and those requirements run generally to the pavement edge, not to the edge of the shoulder. He described the inlet as being within the existing right-of-way of both Illinois State 16 and TR 123, that is, Nokomis Township Road. The inlet appears to be six feet from the surface edge and in the shoulder of Illinois Route 16 and about S1/^ feet from the surface edge and in the shoulder of Nokomis Township Road. Thus, the right-of-way of the State and the right-of-way of the township overlap. The witness stated that the inlet is connected to a culvert running under the State highway and, he had been told, a pipe running under the township road.

He testified that he had “no idea” who built the inlet and that, because the inlet does not appear in files available to him, he does not know who is officially responsible for it. He indicated that “[i]f it could be proven that our maintenance crews built the inlet, I would say it would be our jurisdiction” and that if it was determined that the township had established the inlet, he would say that it was the township’s jurisdiction and responsibility. The State has done no maintenance on the inlet; there has been no need to do any maintenance on it. About six to eight months earlier he had observed fairly fresh asphalt, about two to three years old, close to the inlet, but he did not know who had put it there. In an attempt to obtain records concerning the inlet, the witness discovered that “a bunch of records” had been destroyed in a fire or flood “sometime back in the 60’s.” Records brought by the witness showed the original culvert but did not show any additions that could be construed to be inlet construction. His records showed that Illinois Route 16 was resurfaced and perhaps widened in 1952 and widened slightly and resurfaced in 1979. He stated, “We have looked for records. We have no records” pertaining to the ownership of the inlet.

The Department of Transportation attempted to determine who owned the inlet but was unable to make that determination. The witness speculated that the inlet was installed sometime between 1952 and 1972. If either the township or county had installed the inlet on the State’s right-of-way, either one would have had to obtain permission in the form of a permit or an approval letter from the Illinois Department of Transportation in order to do so. The witness had not found any such permit. In this regard the following questions were asked and answers given:

“Q. Is it the policy of the Department of Transportation that they approve any type of maintenance which the township or county might do in regards to an instance such as this inlet, with regard to erection of the inlet or maintenance of the inlet they would be required to obtain permission from the state in order to modify or erect or maintain the inlet in any way?
A. Generally yes, that would work through our bureau of local roads and streets. They deal direct with the counties and townships, cities, counties and townships. If they had reconstruction or some additional high type maintenance, whatever term you want to use, probably they would be in contact with the people in the local roads bureau, and probably there would be an approval letter, because they might have wanted to expend some motor fuel tax funds. If that was the case, the office would have to give them the approval to do that.
Q. The other alternative possibility might be that if there is no record of the permit or approval letter or so forth it might have also been erected by the state?
A. It’s a possibility.”

Asked how a determination would be made as to who was responsible for the inlet if a problem arose, the witness responded, “Well, the best way would be to get directly in contact with the township and just work out the problem between the two of us.” Asked further, “What factors would be considered in determining who was responsible for maintenance, maintenance of the inlet?” the witness answered, “First of all if he knew, he had any knowledge that his organization built it, then I would say it was his. Now, I have heard this like you heard it, nobody seems to know when it was built, and here we are back to square one as they say.” He stated that, in general, whoever erected the inlet would be responsible for its maintenance unless it has been transferred by a legal document transferring a road system, for example. One item, such as an .inlet, would not be transferred. Asked whether there are any other factors that would be considered to determine who is responsible for maintenance, other than the entity that erected or built the inlet, the witness answered, “Anything in the file in the form of a permit or letter of authorization for the construction of it. That would be the basic determination of who owned it.” He described the inlet as being in a low area. There is a depression around the inlet so that it will drain; if it were too high, it would not drain or pick up any surface water. His office has received no complaints about the inlet.

In its judgment entered September 15, 1989, granting the motion of Nokomis Township for summary judgment, the trial court found in part as follows:

“The record reflects the following facts:
a) The storm sewer is located on real estate where the right-of-way of the State of Illinois and the defendant Township overlap, i.e., an intersection of a township road and a state highway.
b) The storm sewer is designed and installed to drain rain water off of the state highway.
c) The Township’s highway officials believe the storm sewer was installed and maintained by the State. The State’s highway officials have neither an opinion nor record to the contrary and plaintiff has no evidence to the contrary.”

The trial court found further:

“In the instant case, plaintiff must offer evidence sufficient to tip the scales in favor of the alleged instrumentality being under the creation or maintenance of defendant township to establish a duty. This he cannot do. At best the matter is in equipoise and no duty is, therefore, established or establishable.”

The trial court concluded that summary judgment should be entered in favor of Nokomis Township and against the plaintiff for failure to state facts or inferences from facts sufficient to set up a prima facie showing of a legal duty to plaintiff concerning the inlet in question.

In light of the evidence, and particularly the absence of records and other evidence to show that Nokomis Township had any jurisdiction over or responsibility concerning the inlet, we conclude that no genuine issue as to any material fact exists with regard to the duty of Nokomis Township to the plaintiff to construct or maintain the inlet, to warn of or barricade it, or to take any action concerning it, as alleged by plaintiff. Thus, the trial court did not err in granting the motion of Nokomis Township for summary judgment. Hence, we affirm the judgment. In view of our disposition concerning this issue we need not consider the other issue plaintiff raises concerning the granting of summary judgment in favor of Nokomis Township.

We turn finally to the issue presented concerning the judgment for summary judgment entered by the trial court in favor of the defendant Montgomery County and against the plaintiff. In his second amended complaint the plaintiff made the same allegations of negligence with respect to Montgomery County that he made with regard to Nokomis Township. We have already determined that the trial court properly entered judgment in favor of Nokomis Township. Under these circumstances there can be no duty owed by Montgomery County to the plaintiff concerning the inlet. Inasmuch as no genuine issue exists with regard to the duty of Montgomery County to the plaintiff to take action as alleged, the trial court did not err in granting summary judgment in favor of Montgomery County and against the plaintiff. The judgment is affirmed.

Affirmed.

WELCH, J., concurs.

JUSTICE HARRISON,

concurring in part and dissenting in part:

I concur in the majority’s disposition of plaintiff’s claim against Bernard Weitekamp, but dissent from its affirmance of the circuit court’s judgment in favor of Nokomis Township and Montgomery County. The circuit court entered summary judgment for Nokomis Township on the theory that plaintiff had failed to offer sufficient evidence to “tip the scales” in favor of his theory of recovery. As this court recently held, however, a hearing on a summary judgment motion is not a minitrial. The party opposing the motion is not required to try its case at that time. (Hall v. Stamm (1991), 208 Ill. App. 3d 83, 85, 566 N.E.2d 995, 997.) Rather, the party moving for summary judgment is obligated to demonstrate the absence of factual dispute with respect to all issues raised by the pleadings. West Suburban Mass Transit District v. Consolidated R. Corp. (1991), 210 Ill. App. 3d 484, 488, 569 N.E.2d 187, 190.

In determining whether the moving party is entitled to summary judgment, the court must construe the pleadings, depositions, admissions and affidavits strictly against the movant and liberally in favor of the opponent. (Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 271, 586 N.E.2d 1211, 1215.) Summary judgment is improper when there is a dispute as to a material fact or when material facts are undisputed but reasonable persons may draw different inferences from those facts. (Lehrman v. South Chicago Cable, Inc. (1991), 210 Ill. App. 3d 346, 351, 569 N.E.2d 99, 102.) This is such a case.

The inlet which allegedly caused plaintiff’s injuries was not a natural formation. It had to have been constructed and maintained by Nokomis Township, Montgomery County, or the State. No other possibilities were suggested. Although the township and county disavow any responsibility, the district maintenance engineer for the Illinois Department of Transportation testified in his discovery deposition that inlets such as this may be the responsibility of local governmental entities even where, as here, the inlets fall within the State’s right-of-way.

The same engineer further testified that the local governmental units would have required a permit had they actually constructed the inlet, and I recognize that no such permit was produced. The absence of such a permit, however, is scarcely dispositive. Plaintiff’s cause of action against the county and township is not premised solely on the proposition that those entities were negligent in constructing the inlet. Plaintiff also alleged negligent maintenance of the inlet. On that claim, the issue of a permit was irrelevant. In any case, I fail to see how any real significance can be given to the absence of a permit considering that a fire or flood had rendered the State’s records incomplete.

The circuit court found the matter here to be in “equipoise,” which means “[a] state of equal balance” (30 C.J.S. Equipoise §757 (1965)). Implicit in this conclusion is that the court engaged in weighing of the evidence. That was wholly improper. It is fundamental that on a motion for summary judgment neither the trial court nor the reviewing court may weigh the evidence. (See Russell v. Subbiah (1986), 149 Ill. App. 3d 268, 273, 500 N.E.2d 138, 142 (Barry, J., dissenting); Fletcher v. Boxx (1973), 10 Ill. App. 3d 928, 931, 295 N.E.2d 248, 250.) As vexing as the evidence may have been to the trial judge, he was not the trier of fact. The jury was, and plaintiff should have been permitted to present to the jury his claims against the township and the county. I would therefore reverse the entry of summary judgment against plaintiff on those claims and remand for further proceedings.


source: Caselaw Access Project

author: JUSTICE RARICK

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ROBERT E. BUENING, Defendant-Appellee.
    Fifth District
    No. 5—91—0084
    Opinion filed May 26, 1992.
    Rehearing denied June 16, 1992.
    Paula Phillips, State’s Attorney, of Effingham (Kenneth R. Boyle, Stephen E. Norris, and Kendra S. Mitchell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    R. Edward Veltman, Jr., of Crain, Cooksey, Veltman & Miller, Ltd., of Centraba, for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

Defendant, Robert E. Buening, was arrested on October 18, 1990, for driving under the influence of alcohol in violation of section 11— 501(a)(2) of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501(a)(2)). On November 9, 1990, he was charged by information with driving under the influence of alcohol. On January 3, 1991, defendant filed a motion in limine seeking suppression of all evidence regarding the administration of the horizontal gaze nystagmus (HGN) test. At the hearing on defendant’s motion, the State’s Attorney requested the matter be set for an evidentiary hearing. Defendant resisted the State’s request, arguing that the results of an HGN test were inadmissible in the prosecution of a charge of driving under the influence of alcohol. The State asserted the test results were admissible as a factor considered by the arresting officer in reaching his conclusion defendant was under the influence of alcohol, as opposed to establishing the actual blood-alcohol concentration (BAG) of defendant’s blood. After taking the case under advisement, the trial court granted defendant’s motion in limine stating that the HGN “results should be inadmissible for any reason, including the limited purpose of showing the reason or basis for the arrest, i.e., defendant’s intoxication.” The court further stated: “[E]ven if HGN testing was relevant and admissible for the limited purpose of showing defendant’s intoxication, the prejudice of such ‘scientific’ evidence on the issue of blood-alcohol concentration far outweighs its probative value on the issue of defendant’s intoxication.” The State timely filed a certificate of substantial impairment and notice of appeal. We reverse and remand.

Nystagmus, a physiological phenomenon, is a term used to describe an involuntary jerking of the eyeball. “[It] *** is characterized by a slow drift, usually away from the direction of gaze, followed by a quick jerk of recovery in the direction of gaze. A motor disorder, it may be congenital or due to a variety of conditions affecting the brain, including ingestion of drugs such as alcohol and barbiturates, palsy of lateral or vertical gaze, disorders of the vestibular apparatus and brainstem and cerebellar dysfunction.” (Emphasis added.) (The Merck Manual of Diagnosis and Therapy 1980 (14th ed. 1982).) Horizontal gaze nystagmus then is the inability of the eyes to maintain visual fixation as they are turned from side to side or move from center focus to the point of maximum deviation at the side. (State v. Garrett (1991), 119 Idaho 878, 881, 811 P.2d 488, 491; State v. Armstrong (La. Ct. App. 1990), 561 So. 2d 883, 885.) The horizontal gaze nystagmus test as routinely performed by law enforcement officers consists of:

“the driver [being] asked to cover one eye and focus the other on an object (usually a pen) held by the officer at the driver’s eye level. As the officer moves the object gradually out of the driver’s field of vision toward his ear, he watches the driver’s eyeball to detect involuntary jerking. The test is repeated with the other eye. By observing (1) the inability of each eye to track movement smoothly, (2) pronounced nystagmus at maximum deviation and (3) onset of the nystagmus at an angle less than 45 degrees in relation to the center point, the officer can estimate whether the driver’s blood alcohol content (BAG) exceeds the legal limit of .10 percent.” (State v. Superior Court (1986), 149 Ariz. 269, 271, 718 P.2d 171, 173.)

(See also Annot., 60 A.L.R.4th 1129 (1988).) Defendant argues HGN tests are inadmissible in Illinois for the purpose of proving a defendant’s level of blood-alcohol concentration under People v. Dakuras (1988), 172 Ill. App. 3d 865, 527 N.E.2d 163. Dakuras does, indeed, hold that the results of an HGN test to demonstrate BAG are inadmissible in a prosecution under section 11 — 501(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. §&-lz, par. 11 — 501(a)). This is so because a HGN test is not a chemical test to determine BAG as required by section 11 — 501.2(a). But, the court in Dakuras also specifically stated it did not need address whether HGN test results may be admissible as evidence of intoxication other than to show BAG of .10 or more in a driving under the influence prosecution as the State did not raise the issue. (Dakuras, 172 Ill. App. 3d at 870, 527 N.E.2d at 167.) Dakuras therefore does not answer the question presented to us here. The precise issue before us appears to be one of first impression in Illinois.

Turning to other cases in Illinois which refused to admit results of HGN tests, People v. Vega (1986), 145 Ill. App. 3d 996, 496 N.E.2d 501, concluded only that the State failed to lay a proper foundation through expert testimony to determine the validity of such testing. (145 Ill. App. 3d at 1000-01, 496 N.E.2d at 505.) Likewise, People v. Smith (1989), 182 Ill. App. 3d 1062, 538 N.E.2d 1268, held HGN test results were erroneously admitted into evidence when the State failed to lay a proper foundation through expert testimony to determine the validity of the test. (182 Ill. App. 3d at 1069, 538 N.E.2d at 1272.) On the other hand, the court in People v. Seymoure (1987), 158 Ill. App. 3d 1038, 511 N.E.2d 986, determined that “[t]he HGN test, coming into use as law enforcement officers obtain the necessary training, appears to produce at least reasonably accurate readings of blood-alcohol content based upon statistical studies.” (158 Ill. App. 3d at 1039, 511 N.E.2d at 987.) In Seymoure, the responding officer testified about his educational background in giving the HGN test, as well as the procedure which he followed in obtaining credible results. As no objection was made to the officer’s testimony, and as the defendant did not present any evidence which would refute either the officer’s qualifications or the foundation for his testimony relating to the test, the court found the issue waived on appeal. (158 Ill. App. 3d at 1039-40, 511 N.E.2d at 987.) And in People v. Nunes (1986), 143 Ill. App. 3d 1072, 494 N.E.2d 202, defendant’s failure to pass the HGN test when arrested was considered in upholding the jury’s verdict of driving under the influence although the issue of the test’s admissibility apparently was not raised by defendant. 143 Ill. App. 3d at 1076, 494 N.E.2d at 205.

In contexts other than prosecution of DUI, this court itself has twice addressed the issue of admission of HGN test results in recent years. In People v. Griffith (1986), 143 Ill. App. 3d 683, 493 N.E.2d 413, we concluded HGN test results were admissible in an implied consent hearing as evidence to establish reasonable cause to arrest the defendant for driving under the influence of alcohol. (143 Ill. App. 3d at 684-85, 493 N.E.2d at 415.) And, in the context of a statutory summary suspension hearing, in People v. Furness (1988), 172 Ill. App. 3d 845, 526 N.E.2d 947, we found that the results of the HGN test were sufficient to establish probable cause that an offense had been committed, warranting arrest. We did state, however, at that time we found no cases passing on the issue of the test’s general acceptance in the scientific community or its admissibility for the purposes of proving driving under the influence. (172 Ill. App. 3d at 849, 526 N.E.2d at 949.) And recently in People v. Jebelian (1990), 204 Ill. App. 3d 11, 561 N.E.2d 1079, another statutory summary suspension case, the third district summarily concluded the arresting officer’s observations of the defendant’s inability to follow directions to perform a HGN test were admissible in establishing probable cause for arrest even though the HGN test itself “has been criticized and is not evidence.” 204 Ill. App. 3d at 14, 561 N.E.2d at 1081.

Cases from other States have addressed the issue of the admissibility of HGN test results in prosecutions for driving under the influence of alcohol. State v. Superior Court (1986), 149 Ariz. 269, 718 P.2d 171 (en banc) represents one of the more extensively researched and well-reasoned decisions on the subject. In State v. Superior Court, the Arizona Supreme Court initially held that the horizontal gaze nystagmus test, when properly administered by a trained police officer, is sufficiently reliable to be a factor in establishing probable cause to arrest a driver for driving under the influence. The court believed there had been sufficient scrutiny of the HGN test to permit a conclusion as to reliability and that the HGN test did indeed satisfy the Frye standard for admissibility. In order to ensure reliability, Frye v. United States (D.C. Cir. 1923), 293 F. 1013, mandates general acceptance of the scientific principle and procedure by the relevant scientific communities. The appropriate disciplines used by the Arizona Supreme Court to determine the acceptability of HGN tests included “behavioral psychology, highway safety and, to a lesser extent, neurology and criminalistics.” (State v. Superior Court, 149 Ariz. at 278, 718 P.2d at 180.) While the HGN test satisfied the Frye test for reliability, the court concluded it was admissible only to corroborate or attack, not to quantify; the chemical analysis of the accused’s blood-alcohol content. In the absence of chemical analysis, HGN testing could not be used to establish the defendant’s level of blood alcohol. 149 Ariz. at 280, 718 P.2d at 182.

Other jurisdictions which have followed State v. Superior Court include Idaho, Louisiana, Montana and Texas. In State v. Garrett (1991), 119 Idaho 878, 811 P.2d 488, for example, the Idaho Supreme Court also concluded that the HGN test satisfied the Frye standard for admissibility. It too found the test results were admissible in driving under the influence prosecutions to supply probable cause for arrest but not to establish the defendant’s blood-alcohol level in the absence of chemical analysis of the defendant’s blood, breath, or urine. (119 Idaho at 881, 811 P.2d at 491.) In State v. Armstrong (La. Ct. App. 1990), 561 So. 2d 883, appeal denied (1990), 568 So. 2d 1077, the court, characterizing the HGN test as a field sobriety test, held that such test results meet the standards of admissibility under Frye and may be admitted as evidence of intoxication where a proper foundation has been laid, i.e., showing that the administering officer was trained in the procedure, that the officer was certified in its administration, and that the procedure was properly administered. (561 So. 2d at 887.) Likewise, the court in Howard v. State (Tex. App. 1987), 744 S.W.2d 640, followed State v. Superior Court in holding that HGN evidence is properly admitted on the issue of intoxication but not to quantify precise blood-alcohol content. (744 S.W.2d at 641.) Finally, the Montana Supreme Court in State v. Clark (1988), 234 Mont. 222, 762 P.2d 853, held that evidence pertaining to the results of an HGN test was admissible in a prosecution for driving under the influence of alcohol. The evidence, however, was to be admitted like all relevant scientific evidence in the same manner as other expert testimony, without application of the foundation requirements for expert testimony under the “general acceptance doctrine” enunciated in Frye. (234 Mont, at 227, 762 P.2d at 856-57.) The administering officer in Clark testified he was certified through the Montana Law Enforcement Academy, had completed the required number of training hours, and had administered the test in a proper manner. The court concluded no other foundation need be shown for the admission of the HGN results for the purpose of establishing impairment giving rise to probable cause to arrest.

Other jurisdictions which view the HGN test as no more scientific than other field sobriety tests do not require any expert interpretation before admitting test results into evidence. In State v. Nagel (1986), 30 Ohio App. 3d 80, 506 N.E.2d 285, the court stated: “The gaze nystagmus test, as do the other commonly used field sobriety tests, requires only the personal observation of the officer administering it. It is objective in nature and does not require expert interpretation. Objective manifestations of insobriety, personally observed by the officer, are always relevant where, as here, the defendant’s physical condition is in issue ***. *** [I]t does not require an expert to make such objective determinations.” (30 Ohio App. 3d at 80-81, 506 N.E.2d at 286.) Likewise, the Ohio Supreme Court in State v. Bresson (1990), 51 Ohio St. 3d 123, 554 N.E.2d 1330, found that the HGN test was no different from any other field sobriety test such as finger-to-nose, walk-and-turn, or one-leg-stand and therefore held that the only requirement prior to admission of HGN evidence was testimony about the officer’s knowledge of the test, his training, and his ability to interpret his observation. The court concluded the HGN test cannot be compared to other scientific tests such as polygraphic examinations because no special equipment is required for its administration. (51 Ohio St. 3d at 129, 554 N.E.2d at 1336.) Although not raised by the parties, the court further held HGN evidence was admissible only when a properly qualified officer testified regarding the issue of probable cause to arrest and whether the defendant was operating a motor vehicle under the influence of alcohol. HGN evidence was held inadmissible to show the driver’s exact BAG level. 51 Ohio St. 3d at 129, 554 N.E.2d at 1336.

Testimony by a properly trained police officer with respect to the administration and results of the HGN test was found admissible without need for further scientific evidence by the Iowa Supreme Court in State v. Murphy (Iowa 1990), 451 N.W.2d 154. In Murphy, the testing officer was an 11-year police force veteran with specialized training in the field of alcohol-related law enforcement. He was trained in the administration of HGN testing and other field sobriety tests through the Iowa Law Enforcement Academy and was certified not only to administer HGN tests but to serve as an instructor for the academy. The officer described the HGN test procedure for the jury and explained the procedure for assigning points based on the onset of nystagmus. The court concluded the HGN testing procedures described by the officer did not depart significantly from his objective descriptions of other field sobriety tests which he had administered to the defendant. 451 N.W.2d at 158.

In People v. Ojeda (1990), 225 Cal. App. 3d 404, 275 Cal. Rptr. 472, the court rejected the defendant’s argument that the testimony of the officer who administered the HGN test was improperly admitted because the officer was a lay witness who lacked the medical expertise to correlate HGN with intoxication. Instead, the court found “[t]he observation of HGN in a person and its interpretation as an effect of alcohol intoxication do not necessarily require expertise in physiology, toxicology, or any other scientific field. The nystagmus effect can be observed without mechanical, electronic or chemical equipment of any kind. At least in the simple form presented in this case, it requires no more medical training than administration of the other field sobriety tests, such as the one-legged balance.” (225 Cal. App. 3d at 408, 275 Cal. Rptr. at 474.) Without a showing of scientific expertise, however, the court agreed the officer was unqualified to make any medical correlation between HGN and BAG and specifically stated the HGN test was not a reliable indicator of intoxication for the purposes of meeting the Frye test. 225 Cal. App. 3d at 409, 275 Cal. Rptr. at 474-75.

Still other jurisdictions have held that HGN tests do require expert testimony regarding their scientific reliability and acceptance. In State v. Borchardt (1986), 224 Neb. 47, 395 N.W.2d 551, for example, the Nebraska Supreme Court concluded it was error to allow the testing officer to testify about the HGN test he performed upon the defendant. The court found fault with the officer’s testimony in that the record contained “no competent evidence that this new test is valid, that is, that it in fact reveals the presence of intoxication. Evidence of a test result cannot be characterized as ‘scientific’ or qualify as ‘technical or other specialized knowledge,’ *** unless and until it is established that the test result demonstrates what it is claimed to demonstrate.” (224 Neb. at 58, 395 N.W.2d at 559.) In Commonwealth v. Miller (1987), 367 Pa. Super. 359, 532 A.2d 1186, the Pennsylvania Supreme Court also concluded that the results of the HGN test were scientific evidence based on a scientific principle, and that the party seeking to admit the results of an HGN test as evidence must establish that the scientific evidence from which the test is based is generally accepted by scientists active in the appropriate scientific communities. The court ruled that when the only testimony concerning the validity of the HGN test came from the officer who performed it, with his only specialized training in the area being a two-day course on the use of HGN tests and field sobriety tests, there was an inadequate foundation for the admission of the testimony regarding the results of the tests. 367 Pa. Super, at 366-67, 532 A.2d at 1189-90.

In State v. Reed (1987), 83 Or. App. 451, 732 P.2d 66, the court held that the HGN test was scientific evidence based on a novel scientific principle, and in the absence of some expert evidence in the record in regard to the correlation between alcohol consumption and nystagmus, it was error to admit the results of the HGN test. (83 Or. App. at 455-56, 732 P.2d at 68-69.) Although the trooper who administered the HGN test might be qualified as an' expert in giving the test, she was not qualified as an expert in the reliability of the relationship, if any, between alcohol consumption and nystagmus. The supreme court of West Virginia similarly held in State v. Barker (W. Va. 1988), 366 S.E.2d 642, that testimony of the testing officer was inadmissible when the State offered neither evidence to demonstrate that the HGN test was reliable nor evidence concerning the scientific principle upon which the HGN was based. The court determined that it was reasonable to require in camera disclosure of the methodology, scientific reliability, and results of the HGN test, as well as evidence of whether accepted test procedures were followed by qualified personnel in a particular case. The court further stated “demonstration of reliability should include both testimony by expert witnesses and relevant articles and scholarly publications.” (366 S.E.2d at 646.) Even if the HGN test were determined to be reliable, however, the expert’s testimony still was admissible only as to evidence that the driver was under the influence of alcohol, not to the defendant’s actual BAG. 366 S.E.2d at 646.

As the foregoing discussion demonstrates, there is a growing body of law concerning the nature of the HGN test, the requirements for entering HGN test results into evidence, and the purposes for which such results may be entered into evidence. According to the United States Department of Transportation Test Manual, as devised for use by law enforcement agencies, the HGN test is the single most accurate field test used in determining whether a person is alcohol impaired. (United States Department of Transportation, National Highway Safety Administration, Improved Sobriety Testing 4 (1984), cited in Bresson, 51 Ohio St. 3d at 125, 554 N.E.2d at 1332.) When the HGN test is used in conjunction with the walk-and-turn field sobriety test, an officer’s ability to detect whether a driver is under the influence of alcohol is improved. (See Improved Sobriety Testing at 4, cited in Bresson, 51 Ohio St. 3d at 126, 554 N.E.2d at 1333.) Such factors in conjunction with the reasoning in State v. Superior Court, lead us to believe the HGN test meets the standards of admissibility under Frye and HGN test results may be admitted as evidence of intoxication as long as a proper foundation for admitting such evidence has been laid. A proper foundation should consist of describing the officer’s education and experience in administering the test and showing that the procedure was properly administered. Although we also sanction the use of HGN test evidence to corroborate or attack chemical analysis of an accused’s blood-alcohol content, we are not saying such evidence may be used to quantify it, in other words, utilized to establish a defendant’s BAG in the absence of a chemical analysis of the defendant’s blood, breath, or urine. We therefore hold HGN test results are admissible, as is any other evidence of a defendant’s behavior, to prove that the defendant is under the influence of alcohol, provided a proper foundation has been laid.

Accordingly, we reverse the trial court’s grant of defendant’s motion in limine and remand this cause for an evidentiary hearing consistent with this opinion.

Reversed and remanded.

GOLDENHERSH, P.J., and HARRISON, J., concur.


author: JUSTICE SLATER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANK HERNANDEZ, Defendant-Appellant.
    Third District
    No. 3—91—0209
    Opinion filed May 29, 1992.

      M. Jacqueline Walther, of Kielian & Walther, of Chicago, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

Defendant Frank Hernandez was convicted of armed violence and possession of a controlled substance and was sentenced to a 10-year term of imprisonment. Defendant raises numerous issues on appeal. We vacate in part and affirm in part.

On November 3, 1988, police officers executed a search warrant at a residence in Joliet, Illinois. When police entered the southeast bedroom of the home, they found the defendant lying in bed, undressed and between the covers, apparently asleep. Two other individuals, Kimberly Kirkland and Valerie Griffey, were also at the residence at the time of the search. After taking defendant into custody, the police searched the bedroom and found a “snow seal,” a small piece of paper containing white powder, between the mattress and box spring of the bed. The powder was field tested and the results indicated the presence of cocaine. Police also found a loaded .38 caliber revolver lying near the snow seal. The gun was approximately six to eight inches in from the edge of the mattress, near the middle of the bed, and on the side of the bed where the defendant had been sleeping. In addition to these items, police found various types of ammunition and a triple beam scale in the drawer of a gun cabinet located near the defendant’s bed. To avoid repetition, further evidence and testimony presented at trial will be related where it is relevant to specific issues raised by defendant.

The defendant first contends that he was not proved guilty of armed violence beyond a reasonable doubt. Defendant maintains that the evidence indicated that he, at most, constructively possessed the weapon and such constructive possession is insufficient to find that he was “otherwise armed” within the meaning of the armed violence statute. We disagree.

Section 33A — 2 of the Criminal Code of 1961 (the Code) provides that a person commits armed violence when he commits any felony defined by Illinois law while armed with a dangerous weapon (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 2). Section 33A — 1 of the Code states that a person is considered armed with a dangerous weapon “when he carries on or about his person or is otherwise armed” with a weapon (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 1). Recently in People v. Condon (1992), 148 Ill. 2d 96, our supreme court elaborated upon the meaning of the phrase “otherwise armed.” In Condon the defendant was convicted of armed violence after being arrested in the kitchen of his home. A number of guns, including two loaded pistols, were discovered throughout the house. No guns were in the kitchen, however, where defendant was found. Indeed, the only guns on the first floor were an unloaded rifle and an unloaded shotgun. In finding that the defendant was not “otherwise armed” the court stated:

“A felon with a weapon at his or her disposal is forced to make a spontaneous and often instantaneous decision to kill without time to reflect on the use of such deadly force. [Citation.] Without a weapon at hand, the felon is not faced with such a deadly decision. Hence, we have the deterrent purpose of the armed violence statute. Thus, for this purpose to be served, it would be necessary that the defendant have some type of immediate access to or timely control over the weapon.” (Emphasis in original.) Condon, 148 Ill. 2d at 109-10.

In this case the gun was located six to eight inches from the edge of the mattress on the side of the bed nearest to defendant. We believe this was sufficient to constitute “immediate access” to the weapon. (Cf. People v. Bond (1989), 178 Ill. App. 3d 1020, 534 N.E.2d 156 (gun located under cushion of sofa upon which defendant was seated); People v. Zambetta (1985), 132 Ill. App. 3d 740, 477 N.E.2d 821 (gun located in glove compartment of car driven by defendant).) We also note that two police officers who participated in the search testified that defendant’s position on the bed would have allowed him access to the weapon.

Defendant argues, however, that even if the gun was theoretically within his reach, he did not, as a practical matter, have immediate access to it. Defendant points out that he was asleep when the officers entered his bedroom and he was completely under their control after being awakened. Initially, we note that while some of the testimony indicated that defendant was asleep, one officer’s testimony suggested that defendant may have been awakening when the officers entered the room. In any event, we do not find this issue to be dispositive. The purpose of the armed violence statute is to deter felons from using dangerous weapons and to thereby avoid the deadly consequences which might otherwise result. (Condon, 148 Ill. 2d 96.) We do not believe that this purpose would be advanced by making a conviction dependent upon the fortuitous circumstance of whether a sleeping defendant awakened in time to reach for a nearby weapon. The key inquiry is whether the defendant had immediate access to or timely control over the weapon (Condon, 148 Ill. 2d 96), not whether he reached for or gained actual physical control of it.

Defendant also contends that the State failed to prove that he knew the gun was present. Defendant notes the following circumstances in support of his argument: the defendant shared the house and the bedroom where the gun was found with Valerie Griffey; there was no evidence, such as fingerprints, to show that defendant had ever handled the gun; the gun was not in plain view; defendant never did or said anything to suggest that he knew the gun was present, nor did he engage in conduct indicative of a consciousness of guilt; and Griffey testified at defendant’s sentencing hearing that defendant did not know the gun was there.

The element of knowledge is very often not susceptible to direct proof. (People v. Ortiz (1980), 91 Ill. App. 3d 466, 414 N.E.2d 1072.) Whether defendant had possession or knowledge is a question of fact to be determined by the jury, and its findings will not be disturbed on review unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to create a reasonable doubt of defendant’s guilt. (People v. Gallagher (1990), 193 Ill. App. 3d 566, 550 N.E.2d 255.) Upon review, the fact finder’s role as weigher of the evidence is preserved by considering all the evidence in the light most favorable to the prosecution. The relevant question is, after viewing the evidence in this manner, whether any rational trier of fact could have found the elements of the crime proved beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

In this case the gun was found beneath the mattress on which the defendant was lying. The photograph contained in the record indicates that the weapon was of sufficient size to raise an inference that it would not go unnoticed by someone using the bed. In addition, the presence of a gun cabinet containing live ammunition, including .38 caliber ammunition, located a few feet from the bed suggests the presence of weapons. While the circumstances to which the defendant refers, such as the shared living arrangements and the lack of evidence of defendant’s fingerprints on the gun, are factors which might support an inference that defendant was unaware of the weapon, they do not themselves create a reasonable doubt. Rather, these facts created an issue for the jury to resolve. Viewing all the evidence in the light most favorable to the prosecution, we find that there was sufficient evidence to support a determination that the defendant had knowledge of the gun’s presence.

In his final reasonable doubt argument, defendant contends that constructive possession of a controlled substance should not be permitted to serve as the predicate felony for armed violence. As defendant points out, this argument has previously been rejected by this court. (People v. King (1987), 155 Ill. App. 3d 363, 507 N.E.2d 1285; People v. Lenoir (1984), 125 Ill. App. 3d 260, 465 N.E.2d 1027.) Also, while in People v. Condon (1992), 148 Ill. 2d 96, the supreme court found that the defendant had not committed armed violence because he did not have immediate access to or timely control over a weapon, the predicate felonies in Condon were delivery of cocaine and possession of cocaine with intent to deliver. The Condon court’s analysis represents, we believe, an implicit rejection of the argument defendant raises here. For the reasons stated above, we find that the defendant was proved guilty of armed violence beyond a reasonable doubt. In addition, we decline defendant’s invitation to exercise our authority under Supreme Court Rule 615(b)(3) (134 Ill. 2d R. 615(b)(3)) and reduce his conviction to possession of a controlled substance because of the “evidentiary weakness of the State's [case] or the basic unfairness of the result.” (See People v. Jackson (1989), 181 Ill. App. 3d 1048, 537 N.E.2d 1054.) The power to reduce the degree of an appellant’s offense should be exercised with caution and circumspection. (People v. Coleman (1979), 78 Ill. App. 3d 989, 398 N.E.2d 185.) Factors relevant to such a determination include whether an evidentiary weakness exists and whether the trial judge expressed dissatisfaction with imposing a mandatory sentence. (Jackson, 181 Ill. App. 3d 1048, 537 N.E.2d 1054.) While the evidence in this case may not be overwhelming, we disagree with defendant’s characterization of it as weak. Unlike the situations presented in Jackson and Coleman, we do not find this to be one of those rare cases “where an appellate court must in the interest of the fair and uniform administration of justice exercise the powers granted by” Rule 615 (Jackson, 181 Ill. App. 3d at 1051, 537 N.E.2d at 1056).

Defendant next contends that the trial court erred in failing to further instruct the jury. We disagree. Less than an hour after the jury began to deliberate, the following note was sent:

“Need to have further definition/clarification on a dangerous weapon when he carries on or about his person or is otherwise armed.”

The court responded:

“You have my instructions on this issue. Please reread them and continue to deliberate.”

The supplemental record filed in this case shows that both the State and defense counsel agreed that further instructions were unnecessary. Where the defendant acquiesces in the answer given by the trial court to the jury’s question, the defendant cannot later complain that the circuit court abused its discretion. (People v. Reid (1990), 136 Ill. 2d 27, 554 N.E.2d 174.) Moreover, if the defendant fails to object at trial or to raise the issue in his post-trial motion, the issue is waived. (People v. Tannenbaum (1980), 82 Ill. 2d 177, 415 N.E.2d 1027.) We find that this issue has been waived. However, even if we were to consider this issue, as defendant requests, under the plain error rule, we would find no abuse of discretion by the trial court. Under appropriate circumstances, a court may exercise its discretion and refrain from answering a jury’s inquiry. (Reid, 136 Ill. 2d 27, 554 N.E.2d 174; People v. Gathings (1981), 99 Ill. App. 3d 1135, 425 N.E.2d 1313.) If a jury’s question is ambiguous and a response may require a colloquy between the court and the jury, an explanation of the facts, and a possible expression of the court’s opinion on the evidence, the court may refuse to answer the question. (Reid, 136 Ill. 2d 27, 554 N.E.2d 174.) The supplemental record indicates that the court thought the jury’s query was “not an understandable question” and that it “didn’t quite understand that question” although it did understand “the general gist of it.” Under the circumstances, we find no abuse of discretion by the trial court in refusing to risk misleading the jury by offering further instructions.

Defendant maintains, however, that reversible error was committed because, although his attorney was present at the conference regarding the jury’s question, defendant was not personally present. We disagree.

An accused has a right to be personally present at every stage of the criminal proceedings which involve his substantial rights, including the right to be present during communications between the court and jury. (People v. Lowery (1988), 177 Ill. App. 3d 639, 532 N.E.2d 414; People v. Lewis (1979), 73 Ill. App. 3d 361, 386 N.E.2d 910.) The presence of defendant’s counsel does not, in itself, excuse defendant’s absence. (Lewis, 73 Ill. App. 3d 361, 386 N.E.2d 910.) To warrant reversal of defendant’s conviction, however, requires a demonstration that defendant was prejudiced by his absence. (Lewis, 73 Ill. App. 3d 361, 386 N.E.2d 910.) Defendant speculates that if he had been present, his attorney might have objected to the judge’s proposed response. Speculation is insufficient, however, to show the presence of prejudice to the defendant. (Reid, 136 Ill. 2d 27, 554 N.E.2d 174.) We find that defendant was not prejudiced, particularly in view of our finding that the trial court did not abuse its discretion in refusing to further instruct the jury.

Defendant next contends that it was error to allow two police officers to testify concerning defendant’s access to the gun. One officer testified, without objection, that defendant had “immediate access” to the weapon. Another officer was asked whether defendant had access to the items underneath the mattress and answered that he “could have, yes. [They] would have been right there.” Defendant’s objection to the question as calling for a conclusion was overruled. Defendant maintains that this constituted improperly admitted opinion testimony by lay witnesses. Defendant argues that the jury was capable of deciding whether the gun was accessible based on the officer’s description of the scene, including the defendant’s position on the bed and the location of the gun, as well as the photograph showing where the gun was found.

Although in general the opinion testimony of a lay witness is not admissible, a witness may express an opinion based upon his observation where it is difficult to reproduce for the jury the totality of the conditions perceived and where the opinion is one that individuals in general are accustomed to and capable of making and understanding. (People v. Stokes (1981), 95 Ill. App. 3d 62, 419 N.E.2d 1181; People v. Sprinkle (1979), 74 Ill. App. 3d 456, 393 N.E.2d 94; People v. Burton (1972), 6 Ill. App. 3d 879, 286 N.E.2d 792.) While the officers’ testimony and the photograph related in general the position of the defendant and the gun, we do not believe it reproduced the totality of the conditions that existed at the time of defendant’s arrest. For example, there was no testimony indicating where defendant’s hands were in relation to where the gun was located, or even whether his hands were visible when the police entered the room. Under the circumstances we find no error in the admission of the testimony regarding accessibility of the weapon. Moreover, even if we were to find that this testimony should not have been admitted, we would deem it to be harmless error. See People v. Brouder (1988), 168 Ill. App. 3d 938, 523 N.E.2d 100 (police officer’s testimony that defendant charged with resisting arrest “resisted” was not reversible error where other testimony was sufficient to establish resistance); Sprinkle, 74 Ill. App. 3d 456, 393 N.E.2d 94 (improper opinion testimony not necessarily prejudicial when the conclusion reached is obvious; victim’s testimony that defendant charged with attempted murder “attempted to slit my throat” appeared obvious).

Defendant next contends that his convictions must be reversed because the State failed to establish a sufficient chain of custody of the cocaine found under the mattress. Although defendant did not object to admission of the evidence at trial, nor did he raise the issue in his post-trial motion, we will consider it in view of defendant’s claim that his counsel was ineffective in failing to object.

Officer Richard Goepper testified that the items seized during the November 3, 1988, search were placed in his custody. He processed the items at his office. Goepper identified people’s exhibit No. 7 as the snow seal found under the mattress. He testified to markings he placed on the package, including the case number, date, his name, the evidence log number and the location in the evidence vault he would put the item in after it came back from the crime lab. Goepper also referred to markings placed on the exhibit after he had taken it to the crime lab. He agreed that the exhibit was in substantially the same condition as it was on November 3,1988.

Janet Girten, a forensic chemist, testified that she received exhibit No. 7 from Goepper on November 21, 1988. She identified the exhibit by her initials, the date and the laboratory case number. Girten testified that the exhibit was in the same condition as when she received it, except for the markings and seal tape she had placed on it. She further testified that she performed analyses on the exhibit on February 23, 1989, and September 19, 1989, and that it contained cocaine.

Defendant argues that this testimony failed to establish a sufficient chain of custody. Defendant points out that there was no testimony presented regarding how the item was stored before it was taken to the laboratory for analysis, how it was stored while it was at the laboratory, or how or where it was stored after it had been analyzed.

If an item is not readily identifiable or is susceptible to tampering or contamination, a chain of custody must be established with sufficient completeness to render it improbable that the item has been contaminated, exchanged or subjected to tampering. (People v. Pettis (1989), 184 Ill. App. 3d 743, 540 N.E.2d 1097; People v. Hominick (1988), 177 Ill. App. 3d 18, 531 N.E.2d 1049.) The State need not exclude all possibility of tampering but need only demonstrate that the exhibit has not been changed in any important respect. “Unless defendant produces actual evidence of tampering, substitution, or contamination, the State need only establish a probability that the above did not occur, and any deficiencies go to the weight rather than the admissibility of the evidence.” (Pettis, 184 Ill. App. 3d at 753-54, 540 N.E.2d at 1104.) Where a link in the chain of custody is missing, but there is testimony describing the condition of the evidence when delivered as matching the description of the evidence when examined, the evidence is sufficient to establish the chain of custody. Pettis, 184 Ill. App. 3d 743, 540 N.E.2d 1097; Hominick, 177 Ill. App. 3d 18, 531 N.E.2d 1049.

In this case, we find that the testimony presented was sufficient to establish a chain of custody. Officer Goepper positively identified the exhibit as the item found under the mattress, and testified that except for the markings placed on it by the crime lab it was in substantially the same condition as when it was found. Girten also identified the exhibit and testified that it was unchanged, except for the markings and seal tape she had placed on it. This evidence was sufficient to demonstrate that the exhibit “ha[d] not been changed in any important respect” (Hominick, 177 Ill. App. 3d at 29, 531 N.E.2d 1056). In addition, we note that a field test was performed which indicated the probable presence of cocaine. Such a test has been held sufficient to prove beyond a reasonable doubt that a substance is a narcotic. (See People v. Clark (1955), 7 Ill. 2d 163, 130 N.E.2d 195; People v. Garcia (1964), 52 Ill. App. 2d 481, 202 N.E.2d 269.) We find no error.

Defendant next contends that the trial court erred in failing to instruct the jury on the meaning of possession as a voluntary act. Defendant maintains that the following instruction should have been given:

“Possession is a voluntary act if the offender knowingly procured or received the thing possessed, or was aware of his control of the thing for a sufficient time to have been able to terminate his possession.” Illinois Pattern Jury Instructions, Criminal, No. 4.15 (2d ed. 1981).

Defendant did not offer this instruction at trial. A defendant waives any objection to jury instructions when he does not object or submit alternative instructions. (People v. Almo (1985), 108 Ill. 2d 54, 483 N.E.2d 203.) We do not agree with defendant’s contention that the failure of the trial judge to give this instruction sua sponte was plain error, particularly when the jury was instructed that to convict it must find that defendant knowingly possessed the cocaine. (See People v. Redmond (1979), 73 Ill. App. 3d 160, 390 N.E.2d 1364.) This issue has been waived.

Defendant next contends that he was deprived of a fair trial by the presentation of certain evidence which raised inferences of drug dealing. First, defendant maintains that testimony that police found $100 on a nightstand in his bedroom and $820 in defendant’s wallet was irrelevant and prejudicial where defendant was charged with simple possession of, rather than possession with intent to deliver, cocaine. At the hearing on defendant’s motion in limine, the State argued that the money was relevant to show defendant’s knowledge of the presence of cocaine. We agree with defendant that this evidence had no probative value for this purpose. Such evidence was relevant, however, to the issue of defendant’s control over the premises. (People v. Galloway (1963), 28 Ill. 2d 355, 192 N.E.2d 370; People v. Gomez (1980), 80 Ill. App. 3d 668, 399 N.E.2d 1030.) While other evidence was introduced indicating defendant’s control over the premises, we do not agree with defendant that control was “not really in issue.” We find no error.

Defendant also argues that the trial court erred in allowing a police officer to testify that when the search warrant was executed the officers were looking for narcotics, drug paraphernalia and the defendant. Defendant acknowledges that the fact that the officers were executing a search warrant could be relevant as providing a basis for the officers’ presence at the scene, but he contends that testimony concerning what the officers were looking for had no legitimate probative value and raised an improper inference that the authorities had reason to suspect defendant of narcotics offenses. We disagree.

In People v. Olivas (1976), 41 Ill. App. 3d 146, 354 N.E.2d 424, the defendant was convicted of possession of heroin. Police officers testified that after receiving a tip, they placed defendant’s jewelry store under surveillance and “observed a number of individuals, many of whom were personally known to them as a result of their official activities in the narcotics division, enter the store” and engage in an exchange of money for some unidentifiable item. (Olivas, 41 Ill. App. 3d at 147.) The officers obtained a search warrant the following day and discovered heroin on the premises. On appeal, the defendant argued that the evidence relating to the issuance of the search warrant, including the fact that the officers had appeared before a judge who authorized the search, was prejudicial because it implied to the jury that the judge had made a prior determination of guilt. The Olivas court stated:

“It has uniformly been held that evidence concerning acts which are closely and inextricably mixed up with the history of the guilty act itself as to form part of one chain of relevant circumstances is admissible. [Citation.] Considering such tenet in light of the instant case, we believe that the various references throughout the trial to the issuance of a search warrant was so crucially intertwined with the police officers’ surveillance of the premises as well as the defendant’s arrest so as to form part of one chain of relevant circumstances. From our perusal of the record, we are convinced that the testimony elicited at trial concerning the issuance and execution of the search warrant solely demonstrated to the jury the formal procedure required of the law enforcement officials at bar before they could properly (1) engage in a lawful search of the defendant’s jewelry store and (2) arrest the latter once they discovered the heroin in his premises.” Olivas, 41 Ill. App. 3d at 150.

Similarly in this case, the testimony relating what the police were searching for was “crucially intertwined” with the defendant’s arrest and demonstrated to the jury that the officers had a legitimate reason for being on the premises. Even, however, if this testimony were improper, we discern no significant prejudice to defendant where the very items mentioned as the focus of the search were in fact found.

Defendant next contends that he was prejudiced when Officer Goepper characterized an address book found in the bedroom as a “drug ledger.” Defendant objected to this testimony and made a motion for a mistrial. The trial court denied the motion for a mistrial but sustained the objection and offered to instruct the jury to disregard the testimony. Defense counsel withdrew his objection and later cross-examined Goepper, who admitted that he was speculating when he called the book a drug ledger and that it could just as easily have been an address book. The book was also admitted into evidence on defense counsel’s motion.

This issue has been waived. When a defendant objects to certain testimony on direct examination but then questions the witness on cross-examination concerning that testimony, any error is waived for purposes of appeal. (People v. Gully (1986), 151 Ill. App. 3d 795, 502 N.E.2d 1091; People v. Bost (1980), 80 Ill. App. 3d 933, 400 N.E.2d 734.) Moreover, any possible prejudice to defendant was cured by defense counsel’s effective cross-examination of the witness.

Defendant’s final contention with regard to the evidence presented at trial is that he was prejudiced by testimony that a plastic bag containing several types of ammunition was found in a gun cabinet in defendant’s bedroom. Defendant does not quarrel with testimony concerning .38 caliber ammunition, but only with that regarding ammunition which was not suitable for use in the gun found under the mattress. Defendant maintains that such testimony was unrelated to the crimes charged and tended to suggest that the defendant is a violent person. This issue has been waived by defendant’s failure to object to this testimony at trial. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) Moreover, we believe that this testimony would have little, if any, prejudicial effect. See People v. Brown (1982), 106 Ill. App. 3d 1087, 436 N.E.2d 696.

Defendant next contends that his trial counsel was ineffective because he did not object to the introduction of the cocaine into evidence on the basis of an inadequate chain of custody and because counsel’s argument to the jury focused on the armed violence charge while ignoring the charge of possession of cocaine. To establish ineffective assistance of counsel, defendant must show that his counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. (Strickland, v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) Errors in trial strategy, judgment or tactics alone will not render counsel’s performance deficient. (People v. Siverly (1990), 194 Ill. App. 3d 981, 551 N.E.2d 1040.) Inasmuch as we have found that the testimony presented at trial was sufficient to establish a chain of custody, we find no error by defense counsel in failing to object. With respect to alleged deficiencies in counsel’s argument to the jury, we note that the cases relied upon by defendant are inapposite. People v. Hattery (1985), 109 Ill. 2d 449, 488 N.E.2d 513, and People v. Woods (1986), 151 Ill. App. 3d 687, 502 N.E.2d 1103, presented situations in which defense counsel admitted his client’s guilt. No such admission was made by counsel in this case, and we consider counsel’s decision to emphasize the more serious offense in his argument to the jury to be a matter of trial strategy. We find that defense counsel’s performance was not deficient.

Defendant next contends that the prosecutor committed error in misstating the law by suggesting that constructive possession of a weapon was sufficient to prove that a person was armed. Defendant did not object, but he maintains that this was plain error. Defendant specifically refers to the following statements by the prosecutor:

“Is he armed? Well, what do we know? It’s his house, it’s his bedroom, he’s lying in bed naked. He must feel pretty comfortable in that room, pretty safe. He has a loaded gun inches from his hands, from being able to use it. It’s loaded.”

We do not agree that these statements or any other portion of the prosecutor’s argument can reasonably be characterized as a misstatement of the law. We find no error.

Finally, defendant contends, and the State agrees, that convictions for both armed violence and the underlying predicate felony cannot stand where a single act is the basis for both offenses. (See People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477.) Although defendant in this case was sentenced only on the armed violence charge, judgments of convictions were entered on both the armed violence charge and the underlying felony of possession of a controlled substance. We therefore vacate the defendant’s conviction for possession of a controlled substance.

For the reasons stated above, we affirm the defendant’s conviction for armed violence and vacate his conviction for possession of a controlled substance.

Affirmed in part and vacated in part.

HAASE and STOUDER, JJ., concur.