author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTONIO BALDERAS, Defendant-Appellant.
    First District (1st Division)
    No. 1—89—2332
    Opinion filed February 1,1993.

      Michael J. Pelletier and Patricia Unsinn, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Barbara Jones, and Michael Falafario, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court;

Defendant, Antonio Balderas, was indicted for the murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1) of Miguel Rivera, the attempted (Ill. Rev. Stat. 1987, ch. 38, par. 8 — 4) murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1) of Luis Pagan and the armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 2) of both Pagan and Rivera. At the conclusion of the ensuing trial, a jury found defendant guilty as charged, and the State sought the death penalty. Defendant waived his right to a jury for the subsequent sentence hearing, and the circuit court ultimately found him eligible for the death penalty. However, citing defendant’s lack of a prior violent criminal history, the court declined to impose the sentence of death and ordered defendant imprisoned for the rest of his life without the possibility of parole. Defendant also received a 30-year prison term for the attempted murder conviction, to run concurrently. Defendant now seeks review of these proceedings.

We affirm.

At trial, Luis Pagan recounted the events which unfolded at 2:20 p.m., at his grocery store, located at 4894 North Ashland Avenue on March 4, 1988. At that time, Pagan and Miguel Rivera were alone in the store when two men entered. The taller of the two men, whom Pagan identified as defendant, asked where the potato chips were located. The other, unidentified man stood near the counter while defendant walked around the store. Defendant eventually walked to the potato chip rack where Rivera was standing.

Pagan then heard a “commotion” and, turning, saw defendant grab Rivera by the collar and put a gun to his back. Pagan tried to push the alarm button to call police, but defendant pointed the gun at him and threatened him not to move. Defendant then brought Rivera to the counter, raised the gun to Rivera’s left temple, and demanded money from both men. Rivera gave defendant his wallet, from which defendant removed all the money. Defendant asked for Pagan’s wallet, but became angry when he found it empty. He pushed the gun into Pagan’s back and repeated his demand for money. When defendant told Pagan that he was going to kill him, Pagan gave defendant his money and opened the cash register. Defendant pushed Pagan from the register and took the money out himself.

After emptying the register drawer of its cash, defendant returned the gun to Rivera’s temple and demanded more money from the men. Pagan gave defendant some money which he had managed to keep hidden. Defendant told Pagan to turn around, and the unidentified man told defendant to “kill the motherfuckers and let’s get out of here.” As Pagan was turning around, he heard a shot and saw Rivera fall to the ground. Smiling, defendant turned to Pagan and said, “now you’re next motherfucker.” Defendant put the gun to Pagan’s face and pulled the trigger. Pagan heard a “click” then grabbed defendant’s hand and smashed his arm down against the counter and the cash register. Defendant let go of the gun, and Pagan retrieved it. Pagan attempted to fire a shot at defendant, but he “just heard a click.” Defendant pushed Pagan, and Pagan fell behind the counter. Defendant fled from the store, running south toward Lawrence Avenue. Pagan pushed the police alarm button and gave chase, following defendant through an empty lot near the store. Pagan fired a shot toward defendant, but defendant was not hit and was able to make a getaway.

When Pagan returned to the store, he found Rivera dead. Eventually, police arrived at the scene, and Pagan described the gunman as a black male, 6 feet or taller, between 25 and 30 years of age. He wore a blue jacket with a red sweater underneath it and a blue and white cap with the words “Raising hell in Wisconsin” printed across the top. Pagan recalled that shortly after 3 p.m., a police car pulled in front of the store, and officers told him that they had a man they wanted him to see. Defendant was in the back seat of the squad car, leaning aside “trying to hide his face.” Pagan identified defendant as the gunman.

Michael King was leaving his brother’s home near Pagan’s store at 2:20 p.m. when he saw three black men walking through a gangway between Paulina and Ashland Avenues. Two of the men were short, and the other, whom King identified as defendant, was over 6 feet, wearing a blue jacket and brown corduroy pants. King, at that point entered his car, and pulled out of the gangway, turning at the intersection of Ainslie and Ashland Avenues. There, he saw one of the three men he had seen in the gangway standing in front of Pagan’s store. When King arrived at his home, he heard a report on his police radio “scanner” that Pagan’s store had just been robbed. King then walked back to the scene and told one of the officers that he had seen three men coming through the gangway. King took the officers to the gangway, and they toured the area, but could not find any of the suspects. As King was returning to the crime scene, he saw defendant being transferred from a squad car to a police paddy wagon. King turned to a plainclothes officer standing near him and identified defendant as one of the three men he had seen in the gangway just prior to the robbery.

Defendant was taken to the scene by Chicago police officer Robert Slupski, who, as part of the police manhunt for the homicide offenders, was touring a nearby department store. While Slupski was in the store, he received a report regarding the detention of a shoplifting suspect by the store’s security personnel. Upon arriving at the security office, Slupski noted that defendant, the shoplifting suspect, matched the description of the gunman. He notified those at the scene that he was bringing a possible suspect back for identification. Slupski removed the handcuffs the store’s officials had put on defendant and recuffed him with his own handcuffs. As soon as he put the cuffs on defendant, defendant complained of wrist pain. When Slupski asked defendant how he had hurt his wrist, defendant replied that he did not know and that he had “just hurt it.” Slupski then took defendant to the homicide scene, where Pagan identified him as the gunman.

Katherine Gardet, a security officer at Sears Roebuck and Company, located at 1900 West Lawrence Avenue, testified that, as she was monitoring the store’s security cameras, she saw defendant enter the store “really fast” at approximately 2:40 p.m. After she “lost him” on the camera, Gardet took an escalator to the first floor, where she saw defendant enter the luggage department and take a garment bag. Defendant attempted, unsuccessfully, to exit from the store’s emergency doors. Gardet continued to follow defendant as he tried to exit the store. With the help of another security officer, Gardet took defendant to the security office. Defendant was “resistant” at first, but later cooperated with Gardet and the other officer. While in the security office, defendant was handcuffed, and he complained to Gardet that the cuffs were too tight. However, Gardet “knew that they weren’t” and called the police. Officer Slupski responded to her call, and the remainder of Gardet’s testimony was substantially similar to that of Slupski.

Assistant State’s Attorney Chris Cummings spoke with defendant at Area 6 Headquarters (Area 6). After initially denying his involvement in the shooting, defendant confessed that he and two “acquaintances” decided to rob the grocery store. Defendant maintained that the owner of the store and a customer struggled with defendant over defendant’s gun and that the gun “somehow” “went off” during the struggle. After the gun was fired, defendant “somehow” hurt his right hand, dropped the gun, and ran out of the store. As defendant was running away, he heard a shot from behind him. Defendant ran to Sears, where he was arrested for shoplifting. Defendant agreed to provide Cummings with a transcribed statement, which was substantially similar to his oral statement.

Dr. Shaku Teas, an assistant Cook County medical examiner, testified that her autopsy findings indicated Rivera was killed by a gunshot wound to the left temple. The amount of gunpowder and soot around the wound indicated that the gun was very close to Rivera’s head and was “probably touching his skin” when the shot was fired.

It was defendant’s testimony that, on the afternoon of the shooting, he was to meet his girlfriend at a bakery located at 1701 West Foster Avenue. Defendant, who lived on the south side, took the “CTA” to Lawrence Avenue, where he transferred to a bus. Defendant arrived on the north side too early to meet his girlfriend so, to pass the time, he went into a Sears store, located four to five blocks from the bakery. While in the store, defendant decided to steal a garment bag, but was apprehended by a store security officer and taken to the security office, where he was questioned. Officer Slupski later came to the office and told defendant that he matched the description of a robbery suspect. Defendant recalled being taken to the scene of the shooting where Pagan identified him as the gunman. Defendant was transported to Area 6 and placed in an interview room, where he repeatedly denied any involvement in the shooting.

Defendant maintained throughout his trial testimony that he never confessed to the crime, but merely “went along” with police who told him that, if he “cooperated,” he could “help” himself. According to defendant, Officer Kajari related all the details of the crime to him. Furthermore, Kajari spent 40 to 50 minutes alone with defendant, “writing things down” on a piece of paper. Kajari left the room when defendant said he did not want to talk. Later, Kajari was joined by two assistant State’s Attorneys who questioned defendant. Defendant told them that he had no knowledge of the crime and that he only knew what Kajari had told him. Kajari then left the room, followed by the two assistant State’s Attorneys. Assistant State’s Attorney Cummings returned with a piece of paper which he claimed Kajari had given him. Cummings told defendant that Kajari said that he had taken down defendant’s “oral statement,” in which defendant described the shooting as being unintentional. Defendant told Cummings that he had not implicated himself in that manner, but that it was Kajari who had, in fact, “suggested” the scenario to defendant. Cummings merely replied that Kajari would swear in court that defendant had provided him with the statement. Defendant eventually “went along” with the statement because he was “instructed” by Cummings that by “going along with” the story that had been “conceived” by Kajari, defendant would be “more believable.”

The State presented the testimony of Sergeant Frank Kajari in rebuttal. Kajari stated that he, along with his partner, Robert O’Leary, advised defendant of his Miranda rights, and then had a 20-minute conversation with him. During their conversation, Kajari noticed that defendant’s hands were bruised, and he asked defendant how his hands had become bruised. Defendant replied that he hurt himself while “body punching” a friend. When Kajari asked for the friend’s name, defendant stated that he did not know. Kajari left the room, but returned later. He spoke with defendant for 10 minutes and left when defendant told him that he wanted to “think” and asked him to leave. Kajari denied that he had suggested a story for defendant to tell the assistant State’s Attorneys. Kajari also denied telling defendant specific facts about the crime in order to do “himself a favor.”

I

Defendant first contends that the admission of his involuntary statement, after he exercised his right to remain silent, violated the fifth amendment.

Admission of defendant’s statement was supported by the testimony of Kajari and Cummings. Kajari testified that he and his partner, O’Leary, read defendant his Miranda rights which defendant indicated he understood. After defendant agreed to speak with them, the officers had a 15- to 20-minute conversation with him. Kajari told defendant that Pagan had struggled with the gunman who, as a result, wounded his hand. Kajari pointed to defendant’s wound on his hand and asked how he had received it. Defendant told him he had gotten hurt while “body punching” a friend. Following that conversation, a technician from the police crime lab entered the interview room and performed a “gunshot residue test” upon defendant’s hands. At 4:40 p.m., Kajari reentered the interview room alone for approximately 5 to 10 minutes. At that time, defendant told Kajari that he wanted “to clear his mind, to think.” Kajari left the room. He did not see defendant again until 7:20 p.m., when he accompanied two assistant State’s Attorneys into the interview room. Cummings introduced himself and his partner, David Lavin, and recited Miranda warnings, which defendant again stated he understood. They proceeded to have a 20-minute conversation with defendant. They later reentered the room, but Kajari left after approximately one minute. Defendant never once indicated that he wished to remain silent.

Cummings testified that he and Lavin arrived at Area 6 at 5:20 p.m. and spoke with Pagan, Kajari, O’Leary, and a security official from Sears. At 7:45 p.m., Cummings, accompanied by Kajari, introduced himself and Lavin to defendant and explained that they were not his attorneys. Cummings advised defendant of his Miranda warnings, which defendant indicated he understood. Cummings asked defendant if he wished to speak to them, and defendant replied that he did. During this conversation, defendant kept repeating that he “was sorry.” After a 30-minute conversation, in which defendant denied his involvement in the robbery and homicide, they left the room. After 15 minutes, the three returned to the room, and Cummings asked defendant why he was sorry. At that point, defendant asked if Kajari could leave the room because he wanted to talk to Cummings and Lavin privately. Kajari then left the room, and defendant proceeded to implicate himself in the shooting. Cummings stated that at no time did defendant ever say he did not wish to speak to them. Defendant never asked for a lawyer and never told either Cummings or Lavin that the details he knew were related to him by police.

Following this conversation, Cummings asked defendant if he would be willing to give a transcribed statement, to which defendant agreed. A stenographer was called, and defendant later gave a statement similar to his oral statement. After the statement was typed, defendant was given the opportunity to review it. Defendant initialled and signed the statement, indicating that it was correct.

Defendant testified that he was taken to an interview room where Kajari and O’Leary asked him questions concerning the robbery and shooting. Defendant denied having any knowledge of the crimes. Kajari told defendant that he was “facing alot of time” and that, by cooperating with police, defendant could “get out of the pen in time to apply for social security.” The detectives left the room after 45 minutes, and a residue test on defendant’s hands was performed by a police technician. The detectives then returned to the room and asked defendant about his two “accomplices.” Again, defendant was told that he was in “alot of trouble” and that the best way to “help himself” was to cooperate. Defendant told Kajari that he did not want to talk to him, but Kajari continued to ask the same questions. Defendant told him to leave. Shortly thereafter, two detectives from another precinct came into the room and asked defendant about a double murder on 69th Street and Ashland Avenue.

When Cummings came into the interview room, he had with him a piece of paper that Kajari had told Cummings contained defendant’s oral account of the shooting. Cummings had this paper with him when defendant’s statement was taken, and Cummings referred to it during the session. Defendant further maintained that Cummings never read him his rights prior to taking the statement. In fact, defendant, on cross-examination, continued to insist that his Miranda rights were not given to him until the prosecutor impeached him with a copy of the transcript, which indicated that Cummings commenced the session with a recitation of the Miranda warnings.

The trial judge, in denying defendant’s motion, specifically stated that he “can’t believe the defendant.” The court noted, in particular, defendant’s denial that Miranda warnings were given and his subsequent impeachment with the transcript itself.

Defendant argues here that although he may not have expressly communicated to Kajari that he wanted to exercise his right to remain silent, his request that Kajari leave the room was an exercise of his fifth amendment right not to incriminate himself which should have been “scrupulously honored.”

In Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (Miranda), the United States Supreme Court held that if, during custodial interrogation, an “individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. *** [A]ny statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.” Miranda, 384 U.S. at 473-74, 16 L. Ed. 2d at 723, 86 S. Ct. at 1627-28.

The Supreme Court, however, has rejected a per se proscription on the renewal of questioning by the police following a defendant’s initial request to remain silent. (Michigan v. Mosley (1975), 423 U.S. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321 (Mosley).) The Court has held that statements made by a suspect when he had earlier expressed a desire to remain silent are admissible if police “scrupulously honor” the suspect’s right to “cut off questioning.” (Mosley, 423 U.S. at 104, 46 L. Ed. 2d at 321, 96 S. Ct. at 326.) In Mosley, the defendant invoked his right to remain silent in connection with his arrest for a string of robberies. The defendant, during later questioning by officers regarding an unrelated murder, implicated himself. The Court concluded that the police had scrupulously honored the defendant’s request because officers immediately ceased the initial interrogation and resumed questioning only after passage of a significant period of time and with the provision of a fresh set of Miranda warnings. Mosley, 423 U.S. at 106, 46 L. Ed. 2d at 322, 96 S. Ct. at 327.

In Illinois, our supreme court has held that a suspect’s right to remain silent can be “scrupulously honored” even where a defendant is later requestioned regarding the same offense for which he previously invoked his right to silence. (People v. Foster (1987), 119 Ill. 2d 69, 518 N.E.2d 82, cert. denied (1988), 486 U.S. 1047, 100 L. Ed. 2d 628, 108 S. Ct. 2044, reh’g denied (1988), 487 U.S. 1246, 101 L. Ed. 2d 957, 109 S. Ct. 5. See also People v. Reyes (1989), 181 Ill. App. 3d 246, 536 N.E.2d 990, appeal denied (1989), 127 Ill. 2d 634, 545 N.E.2d 125.) In People v. Foster, the defendant was questioned by police at 6:30 a.m. During the conversation, the defendant stated, “I have got nothing to say.” (People v. Foster, 119 Ill. 2d at 86.) At 9:30 a.m., an assistant State’s Attorney advised the defendant of his Miranda warnings and proceeded to tell the defendant that a witness had given police a statement which implicated him in the murder. The defendant reacted by stating that he understood his rights and proceeded to tell authorities of his involvement in the murder. After giving the oral statement, the defendant signed a confession in which he waived his rights under Miranda, including the right to remain silent, and signed a typed confession. People v. Foster, 119 Ill. 2d at 86.

Thus, the resumption of questioning regarding the same offense is immaterial in determining whether police scrupulously honored defendant’s right to keep silent. The relevant inquiry, in considering the admissibility of a statement given after an initial refusal to speak, is whether there was a significant period of time between defendant’s exercise of his right to remain silent and the requestioning, whether that requestioning was preceded by Miranda warnings, and whether the interrogation was conducted by a different officer. (People v. Reyes, 181 Ill. App. 3d at 255.) Furthermore, the determination concerning the voluntariness of defendant’s statement must be made with regard to the totality of the circumstances. People v. Reyes, 181 Ill. App. 3d at 255.

In the present case, we question whether defendant’s statement “I need to think about it” was tantamount to an invocation of the right to remain silent. The police could plausibly construe such a statement as an invitation to speak with defendant at a later time. In any event, the record indicates that police scrupulously honored defendant’s ambiguous request. Kajari testified that defendant asked “to think” at 4:40 p.m. Defendant was then left alone until Kajari, Cummings, and Lavin went to speak with him at 7:20 p.m. This 2-hour and 40-minute interval between questioning was significant. (See People v. Reyes, 181 Ill. App. 3d at 256 (55-minute interval held significant); People v. Young (1983), 115 Ill. App. 3d 455, 450 N.E.2d 947 (75-minute interval held significant); People v. Ferguson (1981), 102 Ill. App. 3d 702, 429 N.E.2d 1321, cert. denied (1982), 459 U.S. 872, 74 L. Ed. 2d 133, 103 S. Ct. 159 (50-minute interval held significant); People v. Pleasant (1980), 88 Ill. App. 3d 984, 411 N.E.2d 132 (90-minute interval held significant).) Defendant, from that point in time, never stated that he wished to remain silent although he was told that he had that right. Like the situation in People v. Foster, the transcript of defendant’s statement reveals that defendant waived his Miranda rights, including his right to remain silent, initialled, and signed the statement. Finally, Cummings conducted the subsequent interrogations of defendant, and although Kajari was present during one of the sessions, he did not ask defendant any questions. In fact, when defendant asked to speak to Cummings and Lavin privately, Kajari left the room in accordance with defendant’s wishes.

Under these circumstances, we cannot agree with defendant’s assertions that his inquisitors did not scrupulously honor his right to remain silent and that they engaged in repeated efforts to wear down his resistance. Indeed, the trial judge explicitly stated that he did not believe that any “overbearing” occurred and, noting that defendant was impeached with his own signed statement, resolved credibility questions against defendant, whom the trial judge stated he “can’t believe.” It is the function of the trial judge to determine matters of credibility, and his findings with regard to voluntariness will not be disturbed upon review unless they are contrary to the manifest weight of the evidence. (People v. Reyes, 181 Ill. App. 3d at 257.) The findings here were not against the manifest weight of the evidence, and defendant’s fifth amendment rights were not violated.

II

Defendant next maintains that he was denied his sixth amendment right to effective assistance of counsel because his trial counsel failed to use, as substantive evidence, a prior inconsistent statement allegedly made by the victim Pagan.

Generally, in order to establish ineffective assistance of counsel, a defendant must show both that counsel’s representation fell below an objective standard of reasonableness and that a reasonable probability exists that, but for the error, the result of the trial would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) A defendant bears a heavy burden to overcome the strong presumption in favor of a finding that defense counsel’s advocacy was not ineffective. (People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246, cert. denied (1985), 471 U.S. 1044, 85 L. Ed. 2d 335, 105 S. Ct. 2061.) Further, the determination of the reasonableness of trial counsel’s actions must be evaluated from counsel’s perspective at the time of the alleged error, without hindsight, in light of the totality of the circumstances. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674,104 S. Ct. 2052.

Defendant’s claim of ineffectiveness centers on the portion of Pagan’s direct testimony in which Pagan stated that defendant, after shooting Rivera, turned to Pagan, put the gun to his head, and pulled the trigger. When the gun misfired, Pagan asserted that he grabbed defendant’s arm, and the men struggled for control of the gun. During Pagan’s cross-examination, defense counsel asked the following:

“Q. Now when you spoke with Officer Czworniak at the scene on March 4, 1988, did you tell him that after the first shot was fired, you grabbed the gun and that a struggle ensued and then you were able to seize control of the gun?
A. Yes, sir.
Q. Did you ever tell that police officer that the man with the gun pulled the trigger, it didn’t go off when it was pointed at your face? Did you ever tell that to that police officer?
A. That I can’t remember if I did or not.
* * *
Q. Did you tell Detective Cole that the offender with the gun then came towards you, smiled, put the gun in your face, pulled the trigger, it didn’t go off and you grabbed the gun?
A. That’s right.
Q. You told him that?
A. That’s right.”

Chicago police officer Mark Czworniak, one of the first officers on the scene, later testified that he briefly interviewed Pagan, who gave him a description of the gunman. During his cross-examination, defense counsel asked Czworniak whether Pagan had told him that, after the first shot was fired, “the gunman stuck the gun in his face and pulled the trigger, but it didn’t go off.” Czworniak replied that he could not “recall if [Pagan] had mentioned that to [him].” Czworniak then noted that such a statement was not mentioned in his report. Detective Jon Cole testified that Pagan related to him the facts that defendant put the gun to Pagan’s head and pulled the trigger, that the gun misfired, and that the men subsequently fought for control of the gun.

Defendant correctly notes that, in Illinois, a prior inconsistent statement made by a witness is a recognized basis for impeachment (People v. Henry (1970), 47 Ill. 2d 312, 265 N.E.2d 876) and, in some cases, may be recognized as substantive evidence. (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10.1.) However, Pagan’s possible lack of outcry to Czworniak cannot reasonably be considered a prior inconsistent statement. That is because Czworniak’s recollection of his questioning of Pagan at the scene did not, in any way, contradict Pagan’s trial testimony. Pagan stated that he related the details of the attempted shooting to Cole, and Cole corroborated this. Additionally, we note that defense counsel argued Pagan’s lack of initial outcry to Czworniak to the jury, insinuating that, after such an encounter, Pagan’s silence was incredulous. Based on this record, defendant has failed to meet his burden in establishing an inefffective assistance of counsel claim.

III

Defendant next maintains that he was denied due process when, dining cross-examination, the prosecutor questioned him regarding his failure to protest his innocence after Pagan identified him as the gunman. Furthermore, defendant argues, the prosecutor emphasized defendant’s silence in his closing argument.

Defendant failed to object to either the question or the comment during the trial. Defendant’s post-trial motion also failed to identify either the question or the comment as error. Our supreme court has held repeatedly that the failure to raise an objection at trial and the failure to identify an issue as error in the post-trial motion preclude appellate review of the alleged error. (People v. Pasch (1992), 152 Ill. 2d 133, 604 N.E.2d 294; People v. Turner (1989), 128 Ill. 2d 540, 539 N.E.2d 1196, cert. denied (1989), 493 U.S. 939, 107 L. Ed. 2d 326, 110 S. Ct. 337; People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) The defendant concedes his waiver, but argues that this court should consider his claim under the “plain error” doctrine. This exception to the waiver rule allows a reviewing court to take notice of any improperly preserved error if the evidence is closely balanced or if the error affects substantial rights. See 134 Ill. 2d R. 615(a); People v. Herrett (1990), 137 Ill. 2d 195, 561 N.E.2d 1; People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.

A defendant’s post-arrest silence may not be used to impeach an exculpatory story told for the first time at trial. (Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240; People v. Pegram (1988), 124 Ill. 2d 166, 529 N.E.2d 506; People v. Beller (1979), 74 Ill. 2d 514, 386 N.E.2d 857.) The State may, however, comment permissibly on post-arrest silence if the defendant, at trial, falsely claims that he also gave his exculpatory statement to the police at the time of arrest. (People v. Rehbein (1978), 74 Ill. 2d 435, 386 N.E.2d 39, cert. denied (1979), 442 U.S. 919, 61 L. Ed. 2d 287, 99 S. Ct. 2843.) Additionally, if defendant’s exculpatory trial testimony is manifestly inconsistent with the statements he made after his arrest, the comment on or evidence of his failure to give the same statement at that time will not violate the Doyle rule. (People v. Beller, 74 Ill. 2d at 522-23.) Neither exception to the Doyle rule is applicable to the facts presented here. Accordingly, the prosecutor committed error in both questioning and commenting upon defendant’s lack of outcry at the time Pagan identified him as the gunman.

Having concluded that the question and comment were improper, we must now determine whether this waived error may be excused under the plain error doctrine. The evidence detailed above cannot be regarded as closely balanced. Defendant was arrested in the vicinity of the grocery store within one-half hour of the shooting, and his clothing and appearance matched the gunman’s description that was provided to the police by the surviving victim and another witness. Defendant’s hand also bore a wound similar to that suffered by the gunman. Pagan and King both positively identified defendant. Additionally, defendant’s credibility was damaged when his alibi trial testimony was impeached by his own confession. In light of these facts, defendant’s waiver cannot be excused under the first prong of the exception. Moreover, our supreme court has held that, although this error involves constitutional rights, it is “not of such a character that the second prong of the plain error rule must be invoked to preserve the integrity and reputation of the judicial process.” (People v. Herrett, 137 Ill. 2d at 215.) Indeed, comment on defendant’s post-arrest silence, while improper, is not an error of such magnitude as to clearly deprive defendant of a fair trial. (People v. Nitz (1991), 143 Ill. 2d 82, 572 N.E.2d 895, cert. denied (1991), 502 U.S. 927, 116 L. Ed. 2d 283, 112 S. Ct. 344; People v. Herrett, 137 Ill. 2d at 215.) The plain error rule is considered by our courts to be a limited exception to the waiver doctrine, an exception which should not and cannot be used as a “general savings clause” for preserving all errors affecting rights which were not brought to the circuit court’s attention during the course of the trial. (People v. Herrett, 137 Ill. 2d at 215-16. See also People v. Carlson, 79 Ill. 2d 564, 404 N.E. 2d 233.) Defendant, therefore, is precluded from asserting the error as a ground for reversal.

IV

Defendant also claims error as a result of the testimony of Chicago police technician Thomas Ginnelly, who defendant asserts was unqualified to render such testimony.

Ginnelly testified that he had worked in the Chicago police mobile crime laboratory for 19 years and that his duties included processing and photographing crime scenes, dusting for fingerprints, recovering physical evidence, marking that evidence, and sending it to the proper laboratories. During direct examination, Ginnelly testified that he had found no usable fingerprints during his dusting of the grocery store. Defense counsel, on cross-examination, asked Ginnelly if he had performed any tests upon defendant. Ginnelly responded that he performed a gunshot residue test on defendant at Area 6. Ginnelly described the procedure, which entails swabbing the subject’s hands with an acidic solution and then bringing the swabs to the laboratory for analysis. In this case, Ginnelly did not perform the analysis, because he does not have that “expertise.” On redirect examination, the prosecutor asked Ginnelly whether gunshot residue would be visible to the naked eye. Ginnelly responded that it would not. Ginnelly stated that, as a technician, the “guidelines” for conducting the residue test require that the test must be performed upon a living person, within six hours of the alleged shooting. The test cannot be conducted if the subject had been fingerprinted or had washed his hands. The swab is later tested for the presence of barium, antimony, and copper or lead, depending upon the bullet. The prosecutor then asked Ginnelly about the bullets he had found at the grocery store. Examining them, Ginnelly stated that the “multiple indents on the edge of the rim indicat[ed] that someone had attempted to fire” the bullets. During recross-examination, Ginnelly admitted that he did not have the expertise in “firearms identification” to determine whether the murder weapon was capable of misfiring.

Defendant failed to raise an objection to this testimony at trial and failed to include the issue in his written post-trial motion. As a result, the issue is precluded from review upon appeal. (People v. Enoch, 122 Ill. 2d 176, 522 N.E. 2d 1124.) Defendant admits that he failed to preserve the issue and invites this court to examine the issue under the plain error doctrine. Before we can invoke that doctrine, however, we must determine whether error occurred at all. People v. Wade (1989), 131 Ill. 2d 370, 546 N.E.2d 553.

In Illinois, expert testimony is admissible when the subject matter is sufficiently beyond the common experience of ordinary lay individuals such that only persons of a particular skill or experience are capable of forming a judgment based on the facts presented. (People v. Gloster (1980), 89 Ill. App. 3d 250, 411 N.E.2d 891.) The degree and manner of knowledge and experience required of the expert are related to the complexity of the subject (People v. Columbo (1983), 118 Ill. App. 3d 882, 455 N.E.2d 733, cert. denied (1984), 467 U.S. 1208, 81 L. Ed. 2d 351, 104 S. Ct. 2394), and the burden of establishing these qualifications rests upon the proponent of the subject testimony. (People v. Park (1978), 72 Ill. 2d 203, 380 N.E.2d 795.) On review, the circuit court’s determination of the adequacy of qualifications, for conferring expert status, will not be disturbed absent a clear abuse of discretion. People v. Free (1983), 94 Ill. 2d 378, 447 N.E.2d 218, cert. denied (1983), 464 U.S. 865, 78 L. Ed. 2d 175,104 S. Ct. 200.

A review of Ginnelly’s testimony reveals that defendant is correct in asserting that Ginnelly was unqualified to render an opinion as to the condition of the recovered bullets. However, as noted above, defense counsel diffused whatever impact this testimony may have had by eliciting from Ginnelly that he was not an expert in firearm identifications and that he did not know whether the gun was capable of being misfired. Additionally, Ginnelly’s lack of expertise was brought out by defense counsel during his initial cross-examination. For these reasons, we do not believe the complained-of error falls within either prong of the plain error exception. As we have indicated in our previous discussion, the evidence here cannot reasonably be considered as closely balanced. Moreover, the error did not clearly deprive defendant of a fair trial. Defendant’s waiver, therefore, may not be excused, and he is precluded from asserting the claim as a basis for reversal.

V

Defendant’s final claim of error concerns the propriety of several remarks made by the prosecutor during closing argument.

Three of the comments cited by defendant as improper are waived due to defendant’s failure to object to the comments at trial and his failure to identify them specifically in his post-trial motion. (See People v. Enoch, 122 Ill. 2d at 186; People v. Thomas (1984), 121 Ill. App. 3d 883, 460 N.E.2d 402.) Moreover, we find no reason to excuse that waiver under the plain error exception.

We preface our discussion of defendant’s remaining argument regarding improper prosecutorial comment by noting that, generally, a prosecutor is allowed a great deal of latitude in making the closing argument, and the circuit court’s determination of the propriety of the argument will not be disturbed absent a clear abuse of discretion. (People v. Cisewski (1987), 118 Ill. 2d 163, 514 N.E.2d 970.) Improper remarks are the basis of reversal only when they result in substantial prejudice to the defendant. (People v. Piscotti (1985), 136 Ill. App. 3d 420, 483 N.E.2d 363.) Furthermore, a defendant may not assert such prejudice where the comments of which he complains were provoked or invited by the arguments of his counsel. People v. Piscotti, 136 Ill. App. 3d 420, 483 N.E.2d 363.

Defendant identifies as improper the following remarks made by the prosecutor:

“Counsel says you know he’s making it up about the gun being pointed at his face and click. What did Judge Hett tell you when he came in? What did he get charged with that night? Attempt first degree murder. He knowingly attempted to kill Luis Pagan. Where did that come up all of a sudden when he’s charged with that from day one?
DEFENSE COUNSEL’S OBJECTION: He wasn’t charged with that from day one.
THE COURT: Overruled. This is argument.
PROSECUTOR: How did that — that just didn’t pop up today or when you were picked as jurors, that charge.”

Assuming that the comment was improper, this error was cured by the circuit court’s instruction to the jury that the indictment was “not any evidence against the defendant and does not create any inference of guilt.” We further note that the jury was informed that closing arguments were not evidence. See People v. Stiff (1989), 185 Ill. App. 3d 751, 542 N.E.2d 392.

Defendant next claims the following as error:

“Counsel says isn’t this amazing he’s not talking, so they leave the room after a half an hour and give him time to think and come back in. Why did you do that? Because if you don’t do that, if the question is from the defense attorneys, you didn’t even—
DEFENSE COUNSEL: Objection to what the question would be.
THE COURT: Overruled. This is argument.
ASSISTANT STATE’S ATTORNEY: If they don’t leave the room and give him a chance it’s going to be relentlessly bearing down on my client and intimidating. If you leave the room for half an hour and give him a break, no, you stood there two hours questioning him, You overbore his will. That’s what defense attorneys want to do. They want to have their cake and eat it too just like he went to pick up his girlfriend at Let Them Eat Cake.”

Even if we were to assume that this comment was improper, we cannot conclude that the remark had so strong an impact on the jury so as to constitute a material factor in the determinations of guilt reached by the jury especially in light of the overall argument, the evidence adduced, and the circuit court’s instruction to the jury that closing arguments were not evidence. See People v. Stiff, 185 Ill. App. 3d 751, 542 N.E. 2d 392; People v. Tannahill (1987), 152 Ill. App. 3d 882, 504 N.E.2d 1283, appeal denied (1987), 115 Ill. 2d 549, 511 N.E.2d 436.

Defendant further argues that the cumulative nature of the preceding errors denied him a fair trial, and he invites this court to grant him a new trial.

As noted above, Pagan’s testimony was clear and convincing, and it established that defendant came into the store, brandished a gun, demanded and took money from both Pagan and Rivera, and shot Rivera in the head. Pagan’s description of Rivera’s shooting was corroborated by the medical evidence, and Pagan’s description of the offender was consistent with the description provided by King, who had seen defendant just prior to entering the grocery store. Pagan stated that the gunman fled south, and defendant, indeed, was apprehended at a Sears store located just south of the scene within 30 minutes of the shooting. Given the convincing nature of the State’s evidence, we hold that the alleged errors, whether viewed individually or cumulatively, were harmless beyond a reasonable doubt. See People v. Hopkins (1982), 107 Ill. App. 3d 422, 437 N.E.2d 722.

Defendant’s convictions and sentences, therefore, are affirmed.

Affirmed.

CAMPBELL and BUCKLEY, JJ., concur.

      Cummings testified that this interview commenced at 7:45 p.m. Kajari stated that he brought Lavin and Cummings to the room at 7:20 p.m.


source: Caselaw Access Project

author: PRESIDING JUSTICE McCORMICK

license: Public Domain

text:
    ALEKSANDER MAREK, Plaintiff-Appellee, v. MICHAL STEPKOWSKI et al., Defendants-Appellants.
    First District (2nd Division)
    No. 1—91—3336
    Opinion filed December 22, 1992.
    Rehearing denied March 25, 1993.—
    Modified opinion filed March 30, 1993.

      Nicholas E Maniscalco, of Chicago, for appellants.
    Goldstine, Skrodzki, Russian, Nemec & Hoff, Ltd., of Summit (William H. Hrabak, Jr., of counsel), for appellee.
   PRESIDING JUSTICE McCORMICK

delivered the opinion of the court:

Defendants, Michal and Josef Stepkowski, appeal from judgment entered on a jury verdict finding defendants liable to plaintiff, ' Aleksander Marek, for $150,000 in damages because they beat plaintiff up outside a bar.

We find that the trial court did not commit reversible error by disallowing defense counsel’s questions concerning defendants’ attorney’s advice and restitution awarded in a related criminal case. The trial court did not abuse its discretion by allowing plaintiff’s counsel to argue that one defendant’s unexplained absence from court showed that he did not care about the lawsuit. The trial court did not err when it refused four of the five instructions defendants offered. Defendants waived objection to the form of the verdict. The trial court properly construed the verdict when it ignored an attempted allocation of damages as surplusage. The amount of the judgment is not clearly excessive. Therefore, we affirm the trial court’s judgment.

Plaintiff sued the defendants for wilful and malicious battery. Defendants filed an answer denying essentially all allegations of the amended complaint and pleading assumption of the risk as an affirmative defense. Plaintiff served notice on defendants’ attorney, pursuant to Supreme Court Rule 237 (134 Ill. 2d R. 237), requiring defendants to appear at trial for plaintiff to examine them. Neither Michal nor Josef appeared on the first day of trial, and only Josef appeared on the second day. Most of the parties and witnesses spoke only Polish, so the court conducted much of the trial through interpreters.

Plaintiff testified that he had never seen defendants before August 31, 1985, when he went to a bar with Ada True. He noticed defendants staring at them during the evening. When he and True tried to leave the bar, defendants stood in their way. Plaintiff said “excuse me” and one of the defendants said “I am going to show you excuse me.” He pushed plaintiff against a cigarette machine, and plaintiff fell to the floor. Plaintiff and True left, but defendants left the bar close behind them and followed them to plaintiff’s car. One of the defendants hit plaintiff’s head with a hard object and plaintiff fell. He did not hit either defendant and he had no chance to defend himself. He lost consciousness while defendants kicked him. He woke up for a moment after police arrived and again in the police wagon on the way to the hospital emergency room. When police gave him his wallet, he discovered that $150 he was carrying before the beating was gone. He paid medical bills totalling $9,682.10 for care of his injuries. He lost 53 days of work, for which he would have been paid $75 per day.

The parties stipulated that defendants pled guilty to aggravated battery of plaintiff in criminal court and that court sentenced them for the offenses. The criminal court’s judgment is not included in the record on appeal.

True substantially corroborated plaintiff’s testimony. She added to plaintiff’s account more words exchanged between the parties: after plaintiff said “excuse me” and defendants pushed him down, plaintiff asked “for what you need this problem?” Defendants threatened to “beat [plaintiff’s] face.” While she and plaintiff were running to the car, plaintiff said to defendants something like “go back to restaurant, don’t play hero.” She also said that she drove plaintiff’s car out of the lot while defendants were beating him, and she got help from passersby who chased defendants away. True tried to stop the bleeding from plaintiff’s face and then she ran back to the bar to phone the police.

Defendant Josef Stepkowski testified that while he was sitting at the bar plaintiff touched him while passing behind him. Josef told plaintiff “you better go to sleep, you had a drink.” Plaintiff answered, “if you are so strong so let’s go outside.” Defendants followed plaintiff out of the bar. Plaintiff hit Josef and Josef hit him back “[m]aybe once, twice.” Michal tried to break up the fight. Josef did not see him hit plaintiff. Josef testified that Michal went to Poland a few days before trial. He offered no explanation for Michal’s decision to leave the country. Josef admitted that he would not have come to court if plaintiff’s attorney had not subpoenaed him.

Defense counsel asked Josef:

“[Y]ou pled guilty in criminal court, you did that on your attorney’s advice?”

The court sustained plaintiff’s objection, finding the question irrelevant. Counsel next asked:

“[D]id you pay [plaintiff] any money as restitution?”

The court again sustained plaintiff’s relevance objection. When counsel began the next question: “Have you already compensated — ,” the trial court instructed him to “[g]o on[ ]to something else.”

In closing argument plaintiff’s counsel said:

“Jose[f] Stepkowski came in just today to be a witness for another attorney.
Micha[ ]1 Stepkowski is apparently in Poland ***. It’s obvious these people don’t even care about being defendants in a lawsuit.”

The court overruled defendants’ objection. Counsel proceeded:

“They don’t even care. They don’t care what they did to [plaintiff] and I think because of that you must award some damages to punish them and to get their attention and tell them that this is *** outrageous.”

Plaintiff requested more than $80,000 in compensatory damages and $150,000 in punitive damages.

Defendants tendered five instructions. Defendants based instructions 1 and 2 on the theory that plaintiff assumed the risk of injury by engaging defendants in a fight, and that assumption of the risk was an absolute defense, which, if proved, deprived plaintiff of all right to recovery. The trial court refused the instructions because they misstated the law. The trial court gave defendants’ instruction 3, which states that if plaintiff assumed the risk of injury, “the total amount of damages to which he would otherwise be entitled *** is reduced in proportion to the amount of his fault in assuming the risk.” Defendants based instructions 4 and 5 on the theory that plaintiff was guilty of contributory wilful and wanton misconduct. The trial court refused the instructions because defendants, in their answer, did not allege contributory wilful and wanton misconduct.

To make a record on the instructions, defense counsel stated that instructions 1 and 2 should have been given because assumption of risk was a complete defense when this battery occurred. He did not seek leave to file an amended answer, and he did not present an amendment to match his proposed instructions 4 and 5 to the court. Defendants did not object to the verdict forms plaintiff submitted, although the forms did not require the jury to distinguish economic from noneconomic damages. Defendants offered no verdict forms.

The jury found for plaintiff, assessing damages of $150,000, but under the line for the damage assessment, the jury added, “(Divided by both brothers $75,000.00).” The court entered judgment against both defendants for $150,000.

Defendants contend that the trial court prevented them from explaining why they pled guilty to aggravated battery. The only effort defendants made to explain their guilty pleas came in Josef’s testimony, when his counsel asked whether his attorney advised him to plead guilty. Defendants do not explain the relevance of counsel’s advice. All the response sought would have shown, apparently, is that, because “the defendant had the additional safeguard of representation by counsel, *** the likelihood of an unjust conviction has been minimized and the defendant’s conviction is reliable evidence of the fact that he did in truth commit a battery.” (Thornton v. Paul (1978), 74 Ill. 2d 132, 150, 384 N.E.2d 335.) Defendants suffered no prejudice from exclusion of this evidence. In this case, as in Galvan v. Torres (1956), 8 Ill. App. 2d 227, 233, 131 N.E.2d 367, counsel did not ask defendant why he pled guilty. Exclusion of evidence of his attorney’s advice was not error.

Defendants claim that the trial court should have permitted them to introduce evidence of the amount of restitution they paid plaintiff as part of their sentence for aggravated battery. Where amounts a defendant has paid a plaintiff as compensation for injuries may be deducted from the total damages sustained, “the function of the jury [is] to find the plaintiff’s total damages, and the function of the judge, upon application of the defendant after verdict, [is] to find the amount by which such verdict should be reduced.” (De Lude v. Rimek (1953), 351 Ill. App. 466, 474, 115 N.E.2d 561.) The trial court correctly determined that evidence of restitution was irrelevant to the question for the jury, and thus it properly excluded the evidence. See Webb v. Toncray (1981), 102 Ill. App. 3d 78, 83, 429 N.E.2d 874; Bur ger v. Van Severen (1963), 39 Ill. App. 2d 205, 214-15, 188 N.E.2d 373.

In their reply brief defendants ask this court to reduce the damage award by restitution paid. As plaintiff points out, defendants never sought this relief from the trial court, and defendants never even submitted evidence that they paid restitution, or if they did, what amount they paid. Accordingly, this issue is not preserved for review. See Pecora v. Szabo (1981), 94 Ill. App. 3d 57, 418 N.E.2d 431.

Defendants contend that the judgment must be vacated because of comments plaintiff’s counsel made in closing argument concerning Michal’s failure to appear for trial. Defendants advance the novel argument that Michal, a defendant, was not under defendants’ control, and he was equally available to both parties, so counsel could not draw any adverse inference from his failure to testify. See Flynn v. Cusentino (1978), 59 Ill. App. 3d 262, 375 N.E.2d 433.

“In arguing a case to the jury, counsel is allowed broad latitude in drawing reasonable inferences and conclusions from the evidence. [Citation.] The scope of permissible argument is within the sound discretion of the trial court.” (Friedland v. Allis Chalmers Co. (1987), 159 Ill. App. 3d 1, 5, 511 N.E.2d 1199.) Josef testified that Michal went to Poland a few days before trial. Defendants offered no explanation for his abrupt departure. Plaintiff’s counsel invited the jurors to infer that Michal did not care about the lawsuit. This is a legitimate inference from Michal’s unexplained absence, especially in light of plaintiff’s Rule 237 notice for both defendants to appear, and the failure of either Josef or Michal to appear for the first day of trial. The trial court did not abuse its discretion by permitting this argument.

Defendants maintain that the trial court failed to instruct the jury on their theory of the case. Of the five instructions defendants offered, the trial court gave one, rejected two because they presented issues not raised by the pleadings, and rejected the other two because they misstated the law.

Defendants based their first two instructions on the theory that assumption of the risk was a complete defense to plaintiff’s cause of action. In Duffy v. Midlothian Country Club (1985), 135 Ill. App. 3d 429, 435-36, 481 N.E.2d 1037, the court held that implied assumption of the risk was no longer a complete defense in negligence actions. Plaintiff here advanced an action for wilful battery, for which implied assumption of the risk has never been a complete defense. (Downing v. United Auto Racing Association (1991), 211 Ill. App. 3d 877, 889-90, 570 N.E.2d 828.) Plaintiff’s implied assumption of the risk may be grounds for reducing plaintiff’s recovery, but it does not preclude recovery altogether. (Downing, 211 Ill. App. 3d at 889-90.) Thus, the trial court here instructed the jury on defendants’ theory when the court told the jurors that they could reduce plaintiff’s recovery by his comparative fault if they found that he implicitly assumed the risk by fighting with defendants. This instruction may have been erroneous because assumption of the risk, like negligence, may not provide grounds for reducing a damage award where defendant is guilty of wilful and wanton misconduct. (See Burke v. 12 Rothschild’s Liquor Mart, Inc. (1992), 148 Ill. 2d 429, 451, 593 N.E.2d 522.) However, neither party has objected to this instruction and it had no effect on the outcome of trial since the jury found that plaintiff did not assume the risk. The first two rejected instructions, which would have precluded plaintiff’s recovery if the jury found he assumed the risk, did not correctly state applicable law. The trial court’s refusal to give incorrect instructions was not error. Sweeney v. Max A.R. Matthews & Co. (1970), 46 Ill. 2d 64, 69, 264 N.E.2d 170.

Defendants based instructions 4 and 5 on the theory that plaintiff was guilty of contributory wilful and wanton misconduct, although they did not raise that issue in their answer or affirmative defense. “Generally, no instruction need be given the jury concerning issues not raised by the pleadings. [Citations.] To instruct a jury on an issue not raised in the pleadings is error.” Blackburn v. Johnson (1989), 187 Ill. App. 3d 557, 564, 543 N.E.2d 583.

In their reply brief defendants ask this court to remand so that they can amend their pleadings. In Blackburn, as in this case, the defendant failed to present a proposed amended pleading to the trial court. The defendant in Blackburn “filed a motion for leave to file an [amended] answer to plaintiff’s second-amended complaint with [the appellate] court, asserting for the first time the comparative negligence theory. It is too late to close the barn door. *** Even if the evidence would support such a defense, if it is not interposed on the trial level by answer, it would not be considered on appeal.” (Blackburn, 187 Ill. App. 3d at 565.) Defendants here, like the defendant in Blackburn, made their request for leave to amend too late. The trial court correctly denied defendants’ request for instructions not based on the pleadings.

Defendants argue that this court should vacate the judgment because the verdict form did not meet the requirements of section 2— 1109 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1109), which provides:

“In every case where damages for injury to the person are assessed by the jury the verdict shall be itemized so as to re-fleet the monetary distribution among economic loss and non-economic loss, if any.”

Defendants offered no verdict forms, and they did not object to plaintiff’s verdict form at the instructions conference or at any other time before the jury returned the verdict. “Failing to tender a proper itemized verdict to the trial court waives review of the issue.” (Wheeler v. Sunbelt Tool Co. (1989), 181 Ill. App. 3d 1088, 1107, 537 N.E.2d 1332; see Forrester v. Patrick (1988), 167 Ill. App. 3d 105, 109, 520 N.E.2d 1188.) The parties must object to an improper verdict form either at the instruction conference or when the form is read to the jury to preserve the issue for review. (Hitt v. Langel (1968), 93 Ill. App. 2d 386, 395, 236 N.E.2d 118.) Defendants’ objection to the form of the verdict in their post-trial motion came too late to preserve this issue.

Defendants ask this court to review the issue as plain error. This court will consider issues not raised before the trial court “where necessary to ensure a fair trial and protect the judicial process from deterioration.” (Underwood v. Pennsylvania R.R. Co. (1966), 34 Ill. 2d 367, 371, 215 N.E.2d 236.) Prior to the enactment of the predecessor to section 2 — 1109, in 1976, juries did not need to itemize their verdicts, yet some trials held then were fair. Accordingly, the courts have found that a verdict form which does not require itemization is not so improper that such error cannot be waived. (See Wheeler, 181 Ill. App. 3d at 1107.) We find no plain error.

Defendants contend that the verdict is unclear because of the jury’s notation under the damage assessment: “(Divided by both brothers $75,000.00).” As this court has held:

“A jury verdict under challenge must be examined toward the end of ascertaining the jury’s intention in returning the verdict. If the verdict is supported by the pleadings and evidence, it must be liberally construed and may be molded into form and made to serve, unless it is unclear there is doubt as to its meaning. [Citations.] An amendment is permissible, however, only when the defect is one of form, rather than substance. [Citations.] A trial court should not amend a verdict in order to reach a determination that the court believes the jury ought to have made; an amendment must reflect only what the jury clearly intended the verdict to be.” Anderson v. Smith (1980), 91 Ill. App. 3d 938, 940-41, 415 N.E.2d 643.

There is no real doubt of the meaning of the jury verdict here. The jury found defendants responsible for total damages of $150,000, and the jury attempted to apportion the damages equally between the two parties. “[T]he jury may not *** apportion damages between joint tort feasors and assess them severally.” (Michels v. Bezley (1957), 12 Ill. App. 2d 456, 459, 140 N.E.2d 134.) The attempt at apportionment renders the jury verdict irregular, but the trial court may reject surplusage and mold the verdict into the proper form where the jury’s resolution of the issues it was to decide is clear. (O’Brien v. Palmer (1868), 49 Ill. 72; see Baumgartner v. Montavon (1934), 276 Ill. App. 498, 509-10.) The trial court’s judgment puts the jury's verdict into the proper form as a finding of the amount for which each defendant, as a joint tortfeasor, is liable. The trial court properly ignored as surplusage the jury’s attempt to decide the allocation of the damages, which was not an issue for the jury to decide.

Finally, defendants argue that the damage award should be set aside or reduced because it is excessive. Punitive damages are appropriate when a tort is committed with deliberate violence. (Motsch v. Pine Roofing Co. (1988), 178 Ill. App. 3d 169, 177, 533 N.E.2d 1.) The amount of punitive damages is in the sound discretion of the trier of fact, and a reviewing court will reduce that amount only when it is clearly excessive. (Hough v. Mooningham (1986), 139 Ill. App. 3d 1018, 1024, 487 N.E.2d 1281.) “[A]n award becomes excessive only when it is so large that it no longer serves [the] purposes [of punitive damage awards].” Hazelwood v. Illinois Central Gulf R.R. (1983), 114 Ill. App. 3d 703, 711, 450 N.E.2d 1199.

In Hazelwood the court listed three factors which reviewing courts should consider in determining whether punitive damages are excessive: (1) the enormity of the wrong; (2) defendant’s financial status; and (3) defendant’s potential liability to persons other than plaintiff. (Hazelwood, 114 Ill. App. 3d at 712-13.) In Deal v. Byford (1989), 127 Ill. 2d 192, 204, 537 N.E.2d 267, our supreme court approved the Hazelwood list of factors, emphasizing that the list is not exhaustive and courts should carefully assess each case in light of its specific facts.

Here, defendants have no potential liability to others, and the wrongfulness of their wilful violence is substantial. Plaintiff presented no evidence of defendants’ finances, but he is not required to present such evidence. (Deal, 127 Ill. 2d at 205.) Since defendants failed to present evidence of their finances, they “cannot now complain of its absence.” Deal, 127 Ill. 2d at 205.

In Deal, the defendant’s employee got into a fight with plaintiff, one of defendant’s tenants, while inspecting her apartment. The jury awarded her total compensatory damages of $1,500, which the court reduced by 15%, the percentage of fault for which the jury found plaintiff responsible due to her contributory fault in causing the fight. The jury also awarded plaintiff punitive damages of $25,000 despite the absence of evidence of defendant’s financial resources. (Deal, 127 Ill. 2d at 199.) Our supreme court affirmed the verdict, finding no indication of passion or prejudice. Deal, 127 Ill. 2d at 204.

Here, plaintiff’s medical costs approached $10,000 and he lost more than $4,000 in wages. He testified to considerable pain and suffering: he had to use a cane to walk for several months after the attack, and almost six years later, at the time of trial, he still suffered frequent headaches, his knee pained him if he sat for extended periods, and his cheek remained very sensitive to cold. The jury may have awarded plaintiff a substantial sum for pain and suffering. Due to the form of the verdict, this court cannot determine accurately what part of the damages the jury awarded as compensation and what part it awarded as punishment. Plaintiff sought more than $80,000 in compensatory damages and $150,000 in punitive damages. Since the jury awarded plaintiff a total of only $150,000, the punitive damage award may have been as little as $70,000. The defendants’ conduct here was much more severe than the conduct of the defendant in Deal, causing plaintiff far greater injury than Deal suffered, and the jury here, unlike the jury in Deal, found plaintiff not contributorily at fault for the injuries. The record does not support a conclusion that the jury acted out of passion or prejudice. We cannot say that the damage award here is excessive.

For the reasons stated above, the judgment of the trial court is affirmed.

Affirmed.

HARTMAN and DiVITO, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    THE BOARD OF TRUSTEES OF THE ADDISON FIRE PROTECTION DISTRICT No. 1 PENSION FUND, Plaintiff-Appellee, v. ZACK STAMP, Director of the Department of Insurance, Defendant-Appellant.
    Second District
    No. 2—92—0406
    Opinion filed February 23,1993.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Jennifer A. Keller, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Thomas J. Riggs, of Addison, and Donovan & Roberts, P.C., of Wheaton (Robert R. Verchota, of counsel), for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, the Director of the Department of Insurance, appeals from a Du Page County circuit court summary judgment and permanent injunction in favor of plaintiff, the Board of Trustees of the Addison Fire Protection District No. 1 Pension Fund. Five general issues confront us: (1) whether a prior declaratory judgment precluded defendant from questioning plaintiff’s actions; (2) whether defendant exceeded his authority in questioning plaintiff’s actions; (3) whether the injunction was improper because the dispute underlying plaintiff’s request for the injunction was not ripe; (4) whether the injunction was improper because plaintiff failed to exhaust administrative remedies; and (5) whether the injunction was improper because plaintiff failed to establish the necessary elements for an injunction.

On August 2, 1989, defendant, Zack Stamp, as Director (Director) of the Department of Insurance (Department), completed an audit of plaintiff board of trustees (Pension Board) of the Addison Fire Protection District No. 1 Pension Fund (Pension Fund). The audit concluded, in relevant part, that plaintiff’s inclusion of volunteer time in determining creditable service for firemen for Pension Fund purposes violated section 4 — 108 of the Illinois Pension Code (Ill. Rev. Stat. 1991, ch. ÍOB^, par. 1 — 101 et seq.). Section 4 — 108, as then in effect, stated in relevant part that “[cjreditable service shall not under any circumstances include time spent as a volunteer firefighter, whether or not any compensation was received therefor.” Ill. Rev. Stat. 1987, ch. ÍOS^, par. 4 — 108.

Section 4 — 108 had been amended effective September 17, 1983. Before then, and as in effect January 1, 1982, section 4 — 108 did not prohibit credit for service as a volunteer fireman. At that time, the Pension Code defined the term “fireman” to include any person employed in fire service as a fireman whether he served as a de facto or de jure fireman.

Prior to the September 17, 1983, amendment of section 4 — 108, on August 25, 1983, the Pension Board passed a resolution (Resolution) which provided that certain named fire fighters receive specified service credits for time served as “paid on call” or volunteer firemen. Kenneth Christensen was one of the 11 fire fighters named in the Resolution as entitled to receive such credit. In order to receive credit for volunteer service time, the Resolution required Christensen and the other named fire fighters to make specified contributions to the Pension Fund.

After the Resolution was passed, the then-president of the Pension Board refused to sign the Resolution and on September 1, 1983, he published a memorandum stating that he refused to sign on the grounds that the Resolution was unauthorized and unlawful. The Pension Board then indefinitely postponed the date for delivery of the contributions required by the Resolution and inquired of the Attorney General whether the Pension Fund could give the firemen named by the Resolution credit for their volunteer time. On April 10, 1984, after section 4 — 108 was amended to provide that creditable service shall not include time spent as a volunteer fire fighter, the Attorney General of the State of Illinois informally responded, in writing, that the Pension Fund could not credit the volunteer time.

On July 16, 1984, Christensen tendered to the Pension Fund the contribution specified for him by the Resolution and demanded that the Pension Board credit his prior volunteer service. In order to determine the rights of the parties, the Pension Board brought a declaratory judgment action seeking adjudication of whether it could give Christensen credit under the Resolution for his time served as a volunteer fire fighter.

On January 29, 1985, in Board of Trustees of the Addison Fire Protection District No. 1 Pension Fund v. Christensen (Cir. Ct. Du Page County, No. 84 — MR—399), the Du Page County circuit court entered a final declaratory judgment. The final judgment provided, inter alia: (1) that Christensen was a fireman within the Pension Code definition of fireman while serving in a paid-on-call or volunteer capacity prior to his full-time employment as a fireman and that awarding service credit for such volunteer services did not conflict with the Pension Code; (2) that the Resolution was valid and took effect as of the date of its passage; (3) that the rights of Christensen and the other firemen named by the Resolution were vested and the Pension Board was bound by and could not breach the Resolution terms; and (4) that the Pension Board should credit the volunteer service according to the terms of the Resolution. Each of the firemen named by the Resolution subsequently tendered the appropriate contribution specified by the Resolution and the Pension Board credited each for volunteer time.

On August 15, 1984, after filing the declaratory judgment action, and more than five months before the court entered its final judgment, the Pension Board’s attorney sent written notice to the Department of the pending declaratory judgment action and provided the Department copies of the complaint and motion for judgment on the pleadings. The notification, received by the Assistant Deputy Director of the Department, stated in relevant part, “Since the Department has consistently taken a position that credit for volunteer time cannot be awarded, the Addison Fire Protection District No. 1 Pension Fund has requested that I afford sufficient time to the Department to intervene should they see fit.” The Department did not intervene in the declaratory judgment suit.

Nearly five years later, after the Department’s August 2, 1989, audit concluded that the Pension Board’s actions violated section 4— 108, the Pension Board informed the Director that it believed the declaratory judgment mandated its actions with respect to the fire fighters named by the Resolution. The Director then issued a notice to the Pension Board to show cause for noncompliance and scheduled a hearing on the alleged violation of section 4 — 108 for September 17, 1990.

On August 31, 1990, the Pension Board filed this action in the Du Page County circuit court against the Director seeking a permanent injunction prohibiting the Director and his successors from threatening or demanding that the Pension Board exclude those service credits mandated by the declaratory judgment.

The parties filed cross-motions for summary judgment. On February 27, 1992, the circuit court denied defendant’s motion for summary judgment, granted plaintiff’s motion for summary judgment, entered judgment in plaintiff’s favor, and permanently enjoined defendant from “threatening or demanding that the Plaintiff and its successors and assigns exclude credit for volunteer time for pension purposes as previously awarded and judicially decreed under the Declaratory Judgment dated January 29, 1985.” Defendant appeals the decision granting summary judgment and the injunction.

The first issue before us is whether the declaratory judgment precluded defendant from questioning plaintiff’s actions. The circuit court based its judgment, in part, on its conclusion that the declaratory judgment mandating crediting of volunteer time for the 11 firemen precluded defendant from questioning the crediting of the volunteer time. The court reached this conclusion even though it recognized that defendant was not a party to the declaratory judgment action and therefore not technically precluded by res judicata principles. In reaching this conclusion the court specifically relied on Williams v. Madison County Mutual Automobile Insurance Co. (1968), 40 Ill. 2d 404.

In Williams, a circuit court granted the motion for dismissal of three of the four named defendants in a declaratory judgment action brought by an automobile insurer to determine the extent of its policy coverage in relation to the defendants. (Williams, 40 Ill. 2d at 406.) Our supreme court held that the declaratory judgment had res judi cata effect against the three dismissed defendants and therefore the declaratory judgment precluded the defendants from later proceeding against the insurer. (Williams, 40 Ill. 2d at 408.) The supreme court concluded that the circuit court erred when it allowed the defendants to remove themselves as parties from the declaratory judgment action. (Williams, 40 Ill. 2d at 408.) The supreme court determined that this error was responsible for the declaratory judgment not being technically res judicata as to the dismissed defendants on the ground that they were not parties to the action. Williams, 40 Ill. 2d at 408.

Here, the circuit court judgment order stated that the Williams rationale “precluding certain parties from questioning the binding effect of a previous declaratory judgment action though not parties to the action” applied to preclude defendant from questioning the declaratory judgment action mandating volunteer credit for the 11 firemen. On appeal, plaintiff essentially concedes that neither res judicata nor collateral estoppel precludes defendant from questioning the binding effect of the declaratory judgment action because defendant was not a party to or in privity with a party to the declaratory judgment action. Nonetheless, plaintiff contends that the Williams principles should apply by analogy because defendant chose not to intervene in the declaratory judgment action. Defendant maintains that Williams was based on principles of equitable estoppel and that Williams does not apply to him because, unlike the Williams plaintiff, plaintiff here did not name defendant as a party in the declaratory judgment action and unlike the Williams defendants, defendant here was not in a position to take action either legally or equitably equivalent to the action taken by the dismissed Williams defendants. Defendant further contends that he is not required to intervene in suits seeking construction of statutes and that equitable estoppel is not applicable to him if he does not intervene. Finally, defendant contends he can only be estopped under compelling circumstances and that there are no compelling circumstances here.

We agree with the circuit court and the parties that neither res judicata nor collateral estoppel applies in this case to preclude defendant from questioning the crediting of volunteer time to the 11 firemen. Here, defendant was neither a party nor in privity with a party, and both res judicata and collateral estoppel only apply to later actions between the same parties or their privies. (Simcox v. Simcox (1989), 131 Ill. 2d 491, 496-97.) Accordingly, the question before us is whether equitable estoppel precludes defendant from questioning the crediting of volunteer time to the 11 firemen.

Equitable estoppel is a doctrine developed in equity to prevent a party from asserting rights where the assertion of those rights would work a fraud or injustice on another party. (Launius v. Najman (1984), 129 Ill. App. 3d 498, 504.) The test to determine whether to apply equitable estoppel is whether, considering all the circumstances of the particular case, conscience and honest dealing require estoppel. Carey v. City of Rockford (1985), 134 Ill. App. 3d 217, 218.

However, only compelling circumstances allow the application of equitable estoppel against the State. (Hickey v. Illinois Central R.R. Co. (1966), 35 Ill. 2d 427, 448.) Generally, mere inaction by the State is insufficient to invoke equitable estoppel. (Pavlakos v. Department of Labor (1985), 111 Ill. 2d 257, 265.) Thus, equitable estoppel applies against the State only where some positive acts by State officials may have induced actions by an adverse party where it would be inequitable to hold the adverse party liable for its actions. Jack Bradley, Inc. v. Department of Employment Security (1991), 146 Ill. 2d 61, 81.

Here, there were no positive acts by the State which might have induced plaintiff’s actions. It may be inequitable to subject plaintiff to administrative review of its actions by defendant when plaintiff invited defendant to intervene in the declaratory judgment action, defendant did not intervene, and plaintiff later relied on the declaratory judgment. However, defendant took no positive action by merely not intervening, and defendant therefore cannot be estopped. Accordingly, we find that the circuit court erred when it concluded that the Williams rationale precluded defendant from questioning plaintiff’s allocation of volunteer time. Based on the foregoing, we hold that estoppel did not apply in this case to preclude the Department from questioning plaintiff’s actions.

Preclusion notwithstanding, plaintiff asserts that Board of Trustees of the Police Pension Fund v. Washburn (1987), 153 Ill. App. 3d 482, is dispositive of this case. Plaintiff contends that, just as in Washburn, defendant exceeded his authority to question plaintiff’s actions because those actions were administrative decisions. Defendant disagrees.

In Washburn, plaintiff, a police pension fund board of trustees, denied a pensioner’s request for retroactive pension benefits after the police pension fund board met and erroneously concluded and found that it did not have statutory authority to grant the retroactive payment. (Washburn, 153 Ill. App. 3d at 484.) More than 2k years later, defendant, the Director of the Department of Insurance, audited the pension fund and determined that plaintiff had violated certain sections of the Illinois Pension Code when it failed to make the retroactive payment. (Washburn, 153 Ill. App. 3d at 484.) After defendant ordered plaintiff to make the retroactive payment and plaintiff refused on the ground that it did not have statutory authority, defendant issued to plaintiff a notice of hearing for noncompliance. (Washburn, 153 Ill. App. 3d at 484.) Plaintiff sought declaratory relief and the circuit court granted plaintiffs motion for summary judgment “finding that defendant had no statutory authority or subject matter jurisdiction to review plaintiff’s decisions.” (Washburn, 153 Ill. App. 3d at 484.) Defendant appealed.

On appeal in Washburn, this court addressed the issue of whether defendant had the power under section 22 — 502 of the Illinois Pension Code to review and reverse the result of the declaratory judgment action. Contrary to defendant’s contention that he was merely reviewing the policies of plaintiff, this court found that defendant was in fact reviewing an administrative decision made by plaintiff and concluded that defendant did not have the power to review administrative decisions made by a pension board under the Administrative Review Law. (Ill. Rev. Stat. 1991, ch. 110, par. 3 — 101 et seq.; Washburn, 153 Ill. App. 3d at 486.) The court stated that “[a]n agency’s policies which are considered such, are not within the circuit court’s subject matter; however, when an agency’s policies are involved in deciding the rights of an individual, such policies become part of its ‘administrative decisions’ and consequently, under the Administrative Review Law, are reviewable solely by the court.” Washburn, 153 Ill. App. 3d at 486-87.

Here, defendant, like the Washburn defendant, maintains that section 22 — 502 of the Illinois Pension Code gives him the authority to review plaintiff’s actions. Defendant concedes that Washburn prohibits him from reviewing a pension board’s administrative decisions, but argues that Washburn does not apply here because plaintiff’s actions in this case did not involve administrative decisions, only reviewable policies. Plaintiff contends that defendant is seeking to exceed his statutory authority and subject-matter jurisdiction to reverse administrative decisions affecting the rights of individuals under the guise of using his statutory authority to review policy. Thus, the issue before us is whether plaintiff’s actions in this case involved administrative decisions and were, therefore, under Washburn, beyond defendant’s statutory scope of review or whether plaintiff’s actions involved policy and were therefore subject to defendant’s review.

The Administrative Review Law, which governs the Pension Board, defines the term “administrative decision” as follows:

“ ‘Administrative decision’ or ‘decision’ means any decision, order or determination of any administrative agency rendered in a particular case, which affects the legal rights, duties or privileges of parties and which terminates the proceedings before the administrative agency.” (Ill. Rev. Stat. 1991, ch. 110, par. 3 — 101.)

Generally, judicial review of an agency action can only occur where there has been a final agency determination which usually follows some sort of adversarial process involving the parties affected, a hearing on the controverted facts, and an ultimate disposition rendered by an impartial fact finder. Jagielnik v. Board of Trustees of the Police Pension Fund (1991), 211 Ill. App. 3d 26, 32.

Here, Christensen, an individual whose rights stood to be affected by a decision on the matter, demanded that the Pension Board credit his prior service as a volunteer fireman toward his total creditable service time in the Pension Fund. This required the Pension Board to make a decision on the matter. However, the Pension Board wanted further input in construing the governing statute and sought a declaratory judgment on the matter.

A declaratory judgment is an optional remedy which is proper for the resolution of an actual controversy even though other relief, such as an administrative hearing, could be obtained. (Kaske v. City of Rockford (1983), 96 Ill. 2d 298, 306.) A declaratory judgment is an appropriate means to resolve a controversy related to statutory construction or interpretation. Office of Lake County State’s Attorney v. Illinois Human Rights Comm’n (1990), 200 Ill. App. 3d 151, 155.

A declaratory judgment by its very nature determines and fixes the rights of the respective parties. (Boles Trucking, Inc. v. O’Connor (1985), 138 Ill. App. 3d 764, 771.) The Declaratory Judgment Act states that a

“court may, in cases of actual controversy, make binding declarations of rights, having the force of final judgments, whether or not any consequential relief is or could be claimed, including the determination, at the instance of anyone interested in the controversy, of the construction of any statute, municipal ordinance, or other governmental regulation, *** and a declaration of the rights of the parties interested.” (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 701.)

Thus, a declaratory judgment has the force of a final judgment with respect to the rights of the parties subject to the declaratory judgment.

Here, the circuit court entered a declaratory judgment which construed the Pension Code to allow crediting volunteer time for the named firemen. The declaratory judgment thus specifically defined the rights of Christensen and the other volunteer firemen with respect to the crediting of their volunteer time under the Pension Code. The declaratory judgment ordered the Pension Board to give credit for volunteer time to Christensen and each of the other firemen named by the Resolution who tendered the required payment. The Pension Board subsequently awarded credit for volunteer time in each case.

We find that the entire administrative process initiated by plaintiff in this case, including the declaratory judgment action brought by plaintiff, was tantamount to an administrative decision. Faced with the duty to make a decision with respect to crediting volunteer time in each of the particular cases of the firemen named by the Resolution, plaintiff brought a declaratory judgment action to construe the relevant section of the Pension Code. The declaratory judgment determined the legal rights of each of the individual firemen. All that remained to be done in each case was for each individual fireman to make a timely tender to plaintiff of the contribution designated in the Resolution. Crediting the volunteer time in each case essentially terminated the proceedings before plaintiff.

Contrary to defendant’s assertions, the fact that the actual crediting of total time served by each fireman may not be determined until each fireman retires does not affect the vested rights of each fireman to credit for his volunteer time as established by the declaratory judgment. The administrative decision process which determined the rights of each of these firemen and included a final judgment in the form of a declaratory judgment does not become a “policy” reviewable by the Department simply because the rights established by the administrative decision may not be asserted until some time in the future. As we have previously cautioned, “[t]o allow defendant, under the guise of reviewing policy, to examine individual adjudicative decisions of the board and to reverse or modify that decision if he disagrees with the determination made in that proceeding, would be to create in essence an unconstitutional court of administrative review.” (Washburn, 153 Ill. App. 3d at 487.) Here, as in Washburn, defendant did not order plaintiff to change a policy, but sought to reverse the adjudicatory decisions themselves. Because this administrative action is beyond the authority delegated to the defendant by the Pension Code, it is therefore void. Rossler v. Morton Grove Police Pension Board (1989), 178 Ill. App. 3d 769, 773.

Based on the foregoing, we conclude that the circuit court did not err in granting plaintiff’s motion for summary judgment.

The next issue before us is whether the circuit court erred in issuing a permanent injunction against defendant. Defendant contends that the circuit court erred in issuing the injunction because the dispute was not ripe, plaintiff failed to exhaust its administrative remedies, and plaintiff failed to establish some essential elements of an injunction action.

We turn first to defendant’s assertion that plaintiff’s injunction action was not ripe. The purpose of the ripeness doctrine in the context of challenges to administrative action “ ‘is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.’ ” (Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 546, quoting Abbott Laboratories v. Gardner (1967), 387 U.S. 136, 148-49, 18 L. Ed. 2d 681, 691, 87 S. Ct. 1507, 1515.) The test for ripeness focuses on an evaluation of the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration. (Big River Zinc Corp. v. Illinois Commerce Comm’n (1992), 232 Ill. App. 3d 34, 39.) A statute or regulation is ripe for challenge when the challenger must choose between disadvantageous compliance and risk of sanction. On-Line Financial Services, Inc. v. Department of Human Rights (1992), 228 Ill. App. 3d 99, 102.

Here, the issue was clearly defined, and not abstract. The question before the court was whether a prior decision construing the statute relied upon by defendant for his authority was dispositive of this case. If the court determined that Washburn was dispositive, then defendant was without jurisdiction to question plaintiff’s actions. We find that this dispute was fit for judicial decision. Plaintiff was faced with the possibility of sanctions if it failed to show cause as defendant demanded and the possibility of contempt citations for failure to follow the declaratory judgment if it complied with defendant’s demands. We find that plaintiff was faced with great hardship if a judicial decision was withheld. Thus, plaintiff’s statutory challenge satisfied the tests for ripeness and was ripe for judicial review.

Defendant next argues that the circuit court erred in issuing an injunction against him because plaintiff failed to exhaust its administrative remedies before bringing the injunction action. Under the exhaustion of remedies doctrine, parties aggrieved by the action of an administrative agency generally cannot seek judicial review of the agency action without pursuing all administrative remedies available, such as a hearing to show cause. (Phillips v. Graham (1981), 86 Ill. 2d 274, 289.) The purposes of the exhaustion of remedies doctrine are: to allow the administrative agency to develop fully and consider the facts of the cause before it; to allow the agency to utilize its expertise; and to allow the aggrieved party an opportunity to succeed before the agency so that judicial review is unnecessary. Castaneda v. Illinois Human Rights Comm’n (1989), 132 Ill. 2d 304, 308.

While strict compliance with the doctrine of exhaustion of remedies is usually required, exceptions to the exhaustion rule have been allowed where the agency cannot provide an adequate remedy or where it is patently futile to seek relief from the agency; where no issues of fact are involved or agency expertise is not required; where irreparable harm will result from further pursuit of administrative remedies; or where the agency’s jurisdiction is attacked on the ground that it is not authorized by statute. Castaneda, 132 Ill. 2d at 309.

Each of these exceptions applies in this case. Although a party cannot avoid the exhaustion requirement merely because relief may be, or even probably will be, denied by the agency, the futility doctrine is applied on a case-by-case basis. (Constantine v. Village of Glen Ellyn (1991), 217 Ill. App. 3d 4, 15.) Here, defendant’s very act of scheduling a hearing to show cause in view of its historic position against crediting volunteer time for firemen reflects a judgment by defendant that plaintiff’s actions were improper. To compel plaintiff to seek relief from defendant in the face of defendant’s demonstrated position would be patently futile and would delay the administration of justice. This conclusion is buttressed by the clear showing of the record here that there are no issues of fact involved nor is agency expertise required. The province of statutory interpretation belongs specifically to the courts, which have their own expertise in statutory construction. An additional reason for allowing an exception to the exhaustion rule in this case is the possibility of irreparable harm to plaintiff if it pursued its administrative remedies. Such harm might have occurred when plaintiff was faced with a decision either to abide by defendant’s likely negative ruling and face sanctions or to disobey the mandate of the declaratory judgment and face possible contempt charges. Finally, an exception is warranted here because plaintiff, in relying on Washburn, specifically challenged defendant’s jurisdiction as not authorized by statute. For all these reasons we conclude that the trial court did not err in failing to observe the exhaustion doctrine when it heard plaintiff’s request for an injunction.

The last issue before us is whether the trial court erred when it issued the permanent injunction because plaintiff did not establish the necessary elements for an injunction. Defendant maintains that plaintiff did not establish the necessary elements of inadequate remedy at law and irreparable harm. Defendant argues that participation in the administrative review process would provide plaintiff with an adequate remedy at law and that such participation would not constitute a sufficient basis for a claim of irreparable harm.

Although an injunction is an extraordinary remedy, a circuit court has broad discretionary powers to grant an injunction. (Tamalunis v. City of Georgetown (1989), 185 Ill. App. 3d 173, 189.) A reviewing court will only overturn a circuit court’s grant of an injunction where there has been a manifest abuse of discretion. Tamalunis, 185 Ill. App. 3d at 189.

We find that the circuit court did not abuse its discretion in this case. Because defendant’s action was void, plaintiff did not have an adequate remedy at law in pursuing the administrative process. Plaintiff also faced irreparable harm in the form of possible contempt if it did not follow the declaratory judgment. We find that plaintiff established a threat of irreparable harm and the lack of an adequate remedy at law.

For the above reasons, we conclude that the circuit court did not err when it issued a permanent injunction against defendant.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

GEIGER and DOYLE, JJ., concur.