author: JUSTICE CERDA

text:
    DAVID OAKES, Plaintiff, v. JOHN MILLER, Indiv. and d/b/a Miller’s Remodeling and Home Repair, Defendant and Third-Party Plaintiff-Appellant (Stewart-Barry Roofing and Insulation Company, Third-Party Defendant-Appellee).
    First District (3rd Division)
    No. 1—89—2436
    Opinion filed May 13, 1992.
    Tressler, Soderstrom, Maloney & Priess, of Wheaton (Francis A. Spina and William J. Cremer, of counsel), for appellant.
    Kiesler & Berman, of Chicago (Edward L. Cooper, of counsel), for appellee.
   JUSTICE CERDA

delivered the opinion of the court:

Defendant John Miller, individually and d/b/a Miller’s Remodeling & Home Repair, appeals from the dismissal of his third-party complaint against third-party defendant Stewart-Barry Roofing & Insulation Company, as barred by the statute of limitations. Defendant argues on appeal that: (1) the trial court erred in applying the pre-amended version of the construction statute of limitations (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 214(a)); and (2) the Contribution Act’s statute of limitations (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 204) was more specific than the construction statute of limitations, and the former should have been applied. The issue is whether a lengthened statute of limitations can be applied retroactively to a cause of action that was not barred by a previous statute of limitations at the time of the amendment lengthening the statute of limitations. We reverse.

Plaintiff, David Oakes, filed a complaint against defendant on January 10, 1985. Count I alleged a Structural Work Act violation (Ill. Rev. Stat. 1989, ch. 48, par. 60 et seq.), and count II alleged negligence. The complaint alleged that plaintiff was an employee of third-party defendant, which was a subcontractor, and that on June 27, 1984, plaintiff was working on the construction of a home addition when he fell through a hole in the roof. Plaintiff also alleged that defendant was the general contractor in charge of the construction of the addition. The record does not indicate when the complaint was served upon defendant, but the parties agree that the date of service was January 17,1985.

On September 18, 1985, an amendment that lengthened the construction statute of limitations from two to four years became effective. Ill. Rev. Stat. 1985, ch. 110, par. 13 — 214(a).

On February 18, 1987, defendant’s third-party complaint against third-party defendant was filed. Defendant alleged that the third-party defendant breached its duty to defendant and failed to provide plaintiff with a safe place to work, among other omissions.

Third-party defendant filed a motion to dismiss on the basis that the third-party action was governed by the two-year construction statute of limitations (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 214(a)). The trial court granted the motion to dismiss, and defendant appealed.

Defendant argues on appeal that between the construction statute of limitations (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 214(a)) and the Contribution Act’s statute of limitations (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 204), the latter should apply because it is more specific in application to defendant’s third-party complaint.

The construction statute of limitations states:

“(a) Actions based upon tort, contract or otherwise against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property shall be commenced within 4 years from the time the person bringing an action, or his or her privity, knew or should reasonably have known of such act or omission.” (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 214(a).)

The Contribution Act’s statute of limitations states:

“No action for contribution among tortfeasors shall be commenced with respect to any payment made in excess of a party’s pro rata share more than 2 years after the party seeking contribution has made such payment towards discharge of his or her liability.” Ill. Rev. Stat. 1989, ch. 110, par. 13 — 204.

Defendant cites Antunes v. Sookhakitch (1989), 181 Ill. App. 3d 621, 628, 537 N.E.2d 333, 338, which held that a third-party contribution complaint against decedent’s treating physicians was controlled by the Contribution Act and not by the medical malpractice limitations statute (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 212). The basis for the decision was the rule of statutory construction that specific provisions control over more general provisions. (Antunes, 181 Ill. App. 3d at 628, 537 N.E.2d at 337-38.) The Illinois Supreme Court affirmed the appellate court, but for different reasons; appellee did not argue on appeal that the Contribution Act applied to its third-party complaint. Antunes v. Sookhakitch (1992), 146 Ill. 2d 477, 479-80, 483.

Defendant recognizes that La Salle National Bank v. Edward M. Cohon & Associates, Ltd. (1988), 177 Ill. App. 3d 464, 532 N.E.2d 314, held that the statute of limitations for a construction action should control as more specific than the Contribution Act’s statute of limitations. Defendant notes other first district cases holding to the contrary of Antunes, including Heneghan v. Sekula (1989), 181 Ill. App. 3d 238, 241-42, 536 N.E.2d 963, 966, which held that the more specific medical malpractice limitations statute (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 212) prevailed over the Contribution Act, and Hayes v. Mercy Hospital & Medical Center (1989), 180 Ill. App. 3d 441, 444, 535 N.E.2d 1137, 1139, which also held that the medical malpractice statute controlled, but defendant argues that the second district’s An-tunes is the more correct decision.

The rationale of these first district cases was recently relied upon in Rummel v. Yazoo Manufacturing Co. (1991), 222 Ill. App. 3d 526, 531, which held that the statute of limitations for actions against municipalities (Ill. Rev. Stat. 1989, ch. 85, par. 8 — 101) applied to a third-party complaint instead of the Contribution Act’s statute of limitations (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 204). Under similar reasoning that the construction statute of limitations is more specific than the Contribution Act’s statute of limitations, we hold that the construction statute of limitations applies to defendant’s third-party complaint.

Defendant next argues that its third-party complaint was timely filed within the four-year construction statute of limitations that was effective September 18, 1985 (Ill. Rev. Stat. 1985, ch. 110, par. 13— 214(a)). Defendant argues that the amended version applied because: (1) the third-party claim was still viable even under the two-year limitations period when the 1985 amendment took effect; (2) a change in the limitations law with respect to existing causes of action must be enforced according to the new procedure; (3) the amendment extending the statute of limitations would not be applied retroactively to revive a claim that had previously been barred; (4) the amendment did not take away or impair third-party defendant’s vested rights, create any new obligation, impose any new duty, or attach any new disability to third-party defendant; and (5) statutes of limitation are procedural in character, and procedural amendments are generally applied retroactively.

Third-party defendant argues that the statute of limitations in effect prior to the amendment was properly applied because: (1) the statute of limitations in force at the time the cause of action arose governs; and (2) a lengthening of a statute of limitations cannot be retroactively applied where the injury occurred prior to the amendment.

Prior to the amendment effective on September 18, 1985, the construction statute of limitations provided:

“(a) Actions based upon tort, contract or otherwise against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property shall be commenced within 2 years from the time the person bringing an action, or his or her privity, knew or should reasonably have known of such act or omission.” (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 214(a).)

The amendment changed the limitations period from two to four years. Ill. Rev. Stat. 1985, ch. 110, par. 13 — 214(a).

Defendant relies upon Smolen v. Industrial Comm’n (1926), 324 Ill. 32, 154 N.E. 441, in which prior to a statute’s amendment, a workmen’s compensation award for disability could be reviewed only within 18 months and upon the ground that the disability ended. The amendment provided that an award would cease if the recipient returned to work. The court held that existing causes of action were to be enforced in accordance with new procedures without regard to whether they accrued before or after the change in the law. (Smolen, 324 Ill. at 37, 154 N.E. at 443.) Because the award was still subject to review at the time that the amendment became effective, it was not an impairment of the obligation of a contract to extend the time for review of the award. Smolen, 324 Ill. at 37, 154 N.E. at 443.

Arnold Engineering, Inc. v. Industrial Comm’n (1978), 72 Ill. 2d 161, 163, 380 N.E.2d 782, 784, held that an amendment, which lengthened a statute of limitations from one to three years, was not applicable to revive a claim that was barred prior to the amendment. Arnold also provided that no party has a vested right in a statute of limitations prior to its lapse and that where a limitations period had not expired prior to amendment, the amendatory act controlled actions not previously barred. Arnold, 72 Ill. 2d at 165, 380 N.E.2d at 784.

Defendant states that, unlike the claim in Arnold, his claim had not expired under the two-year statute of limitations at the time of the amendment increasing the statute of limitations to four years.

Defendant also distinguishes the following cases. In Continental Insurance Co. v. Walsh Construction Co. (1988), 171 Ill. App. 3d 135, 524 N.E .2d 1131, the former section 13 — 214 (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 214) was applied to a complaint that was filed about five years after the property loss. The court noted that the statute of limitations was lengthened to four years, but the court was not presented with the issue of which version of the statute applied. (Continental, 171 Ill. App. 3d at 138 n.1., 524 N.E.2d at 1133 n.1.) In any event, the complaint was filed too late even under the amended statute of limitations. Neither was this issue discussed in Commonwealth Edison Co. v. Walsh Construction Co. (1988), 177 Ill. App. 3d 373, 532 N.E.2d 346, which applied the two-year version of the same statute of limitations.

Third-party defendant cites In re Estate of Koss (1967), 84 Ill. App. 2d 59, 228 N.E.2d 510, which predates Arnold, for the proposition that a statute of limitations will not be given retroactive effect in the absence of clear legislative intention. Koss applied the previous 60-day period in which to file a notice of appeal instead of the shortened 30-day period because the 60-day period was in effect at the time that the right to appeal accrued. (Koss, 84 Ill. App. 2d at 65, 228 N.E.2d at 513.) Not only does Koss involve a shortened instead of a lengthened limitations period, but its statement concerning the retroactive effect of the limitations period is questionable because of Arnold and authority even prior to Koss, e.g., Hogan v. Bleeker (1963), 29 Ill. 2d 181, 184, 193 N.E.2d 844, 847 (general rule against retroactive application is not ordinarily applied to statutes of procedures).

Furthermore, the amended statute of limitations as applied to defendant’s third-party claim would not be retroactive because a retroactive law is “one which ‘takes away or impairs vested rights acquired under existing laws or creates a new obligation, imposes a new duty, or attaches a new disability in respect of transactions or considerations already past.’ ” Brucato v. Edgar (1984), 128 Ill. App. 3d 260, 270-71, 470 N.E.2d 615, 622, quoting United States Steel Credit Union v. Knight (1965), 32 Ill. 2d 138, 142, 204 N.E.2d 4; see also Francisco v. Tribune Co. (1985), 137 Ill. App. 3d 119, 121, 484 N.E.2d 435, 437 (application of statutory amendment that decreased the age of majority was not retroactive where the statute of limitations permitted minors to file lawsuits until two years after majority and where plaintiff was a minor at time of amendment).

Third-party defendant also relies on the statement in Sanchez v. Access Associates (1989), 179 Ill. App. 3d 961, 966, 535 N.E.2d 27, 29, that the statute of limitations in force at the time a cause of action arises governs the time within which the action will lie. But the amendment to the statute at issue there did not take effect until after the cause of action was already barred by the expiration of the statute of limitations. The basis for the refusal to apply an amended statute was the principle that an amended statute would revive a barred cause of action. (Sanchez, 179 Ill. App. 3d at 966, 535 N.E.2d at 29.) In Beesley v. Spencer (1861), 25 Ill. 199, which was Sanchez’s authority for the statement about the statute of limitations in force at the time, the statute of limitations in force when a promissory note became due was applied instead of the statute of limitations in force before the note’s maturity but after the note’s execution. Beesley, 25 Ill. at 200.

The statement in Sanchez (179 Ill. App. 3d at 966, 535 N.E.2d at 29) appears to be incorrect, at least in the case where the cause of action was not barred prior to the amendment, because of the decision in Orlicki v. McCarthy (1954), 4 Ill. 2d 342, 354, 122 N.E.2d 513, 519, that applied an amended statute of limitations retroactively to a cause of action that accrued prior to the amendment because the amendment was procedural in character. In addition, the Illinois Supreme Court has held that a new law affecting only procedure generally applies to litigation pending when the law takes effect. Niven v. Siqueira (1985), 109 Ill. 2d 357, 364, 487 N.E.2d 937, 941.

The cases hold that a lengthened statute of limitations cannot be applied retroactively to a cause of action that was barred by the previous statute of limitations. But in this case, when the amendment became effective, defendant’s third-party claim was still viable. Therefore, the amended four-year statute of limitations was applicable and defendant’s third-party complaint was not barred.

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

Reversed and remanded.

GREIMAN, P.J., and TULLY, J., concur.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL GREEN, Defendant-Appellant.
    First District (6th Division)
    No. 1—89—1377
    Opinion filed May 8, 1992.

      Dennis M. Foley, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Guy L. Miller IV, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Following a trial by jury, defendant, Michael Green, was convicted of the murder of Mario Hernandez and two counts of armed robbery. The deceased, owner of a liquor store, was shot to death on the store premises following the armed robbery of the deceased and another store employee. The trial judge imposed a term of natural life imprisonment for murder and concurrent 30-year terms for each armed robbery offense. (This court has affirmed the convictions and sentences of codefendants Samuel Lee and L.C. Jackson for their participation in this offense, Lee in a Rule 23 order, October 25, 1991, No. 1 — 88—2801; L.C. Jackson also in a Rule 23 order, January 24, 1992, No. 1 — 89—0773. Codefendant Michael Jackson’s appeal is pending.)

On appeal, defendant, a member of the black race, contends that the State exercised its peremptory challenges in a racially discriminatory manner. Although defendant raises numerous other issues on appeal, we limit our review to whether the trial judge erred in ruling that defendant was not entitled to a hearing to determine the prosecutor’s reasons for exercising five peremptory challenges against black venire members.

We remand for a hearing in accordance with Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, retaining jurisdiction to review any subsequent proceedings pursuant to People v. Garrett (1990), 139 Ill. 2d 189, 564 N.E.2d 784, and to then, if necessary, consider defendant’s other contentions raised on appeal.

During jury selection, the judge allowed the State and defendant 14 peremptory challenges. The judge asked each venireperson to provide answers to general questions about location of residence; marital status; individual employment and employment of immediate family members; educational background; and participation in civic or religious organizations and hobbies.

The State exercised two of its first four peremptory challenges against black individuals. At that point, the following colloquy transpired:

“DEFENSE COUNSEL: I find nothing in their questions or responses in any way which would lead me to believe that they are anything other than upstanding, upright citizens and I would just be tendering an objection at this time because I think the State is exercising two of their fourteen peremptory challenges in a discriminatory manner and I wonder if the State would like to make a record and if the court would allow them to do so.
THE COURT: Not at this time. I think that motion is premature.”

After the State exercised another peremptory challenge against a black man, defense counsel again objected. The State then exercised another peremptory challenge against a black woman, which gave rise to the following exchange:

“DEFENSE COUNSEL: Your honor, at this time the record should reflect Miss Bowie is a black woman and—
THE COURT: I will indicate them all. Defense challenged a white woman and a white man. And the State challenged a white woman and a black man.
DEFENSE COUNSEL: Your Honor, at this time, at this point in the jury selection process, I’d be making a motion for a mistrial. I think the State exercising the use of the peremptories has been purposeful discrimination against the defendant who is a black man. That they have made every effort that they could to exclude those blacks. They haven’t offered any reason for the—
THE COURT: They haven’t offered any reason because I haven’t required them to offer any reason. They are not required to make—
DEFENSE COUNSEL: I did make an earlier request.
THE COURT: My point is they’re not required to until I rule that they have to, so they don’t have to at this juncture.”

The record reveals that Jerline Craig, a black woman, was selected as the ninth juror. At that point, Craig was the only black individual assigned as a juror. The judge later excused Craig for cause. Defense counsel again objected as set forth below:

“DEFENSE COUNSEL: I am going to renew my motion for new jury selection process and new panel to be brought forth in its entirety and that now the one black person who was previously eligible to serve and has been removed. Or alternatively, to ask the State to bring forth an explanation for their motives in their—
THE COURT: We haven’t got to that yet. Right now I do not believe a Batson motion is appropriate. The People have been assuming that is what you are making.
DEFENSE COUNSEL: Yes.
THE COURT: I do not believe that there has been a pattern of discrimination. *** We know that the victims in this case are Hispanic so whether or not *** even a Batson motion would be appropriate considering the facts at this point, I don’t feel a Batson motion is appropriate. I am not saying that I don’t — one might not be late. We’ll address that when it arises ***.”

In total, the State exercised 5 of its 13 challenges to exclude black venire members. The record does not reveal the racial composition of the last four jurors selected after Craig, nor the race of the two alternates. Thus, it is not clear whether any blacks were selected as jurors.

As evidenced by defense counsel’s continual requests that the State offer an explanation for the use of its peremptory challenges against black individuals, this issue has not been waived for purposes of our review. Defense counsel is not required to use any particular or pro forma language to bring a Batson claim to a trial court’s attention; rather, the fact that the trial court is made aware of the claim, not the manner in which the claim is made, is dispositive. People v. Whaley (1989), 184 Ill. App. 3d 459, 540 N.E.2d 421.

A prima facie case of purposeful racial discrimination in jury selection as set forth in Batson can be established by relying on the fact that peremptory challenges facilitate discrimination and by showing that (1) the defendant belongs to a cognizable racial group; (2) the State peremptorily challenged venire members who belonged to that group; and (3) these facts “and any other relevant circumstances raise an inference” of purposeful racial discrimination. (People v. Garrett, 139 Ill. 2d at 203, 564 N.E.2d at 790.) Among many possible “relevant circumstances” may be a pattern of strikes against black venire members; the disproportionate use of strikes against such members; the level of black representation in the venire as compared to the jury; prosecutorial questions and statements during voir dire and while exercising challenges; and the races of defendant and victim or of defendant and witnesses. (People v. Garrett, 139 Ill. 2d 189, 564 N.E.2d 784.) The defendant may rely on the fact that peremptory challenges constitute a jury selection practice which permits “those to discriminate who are of a mind to discriminate.” (Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1723.) A trial court’s determination that a defendant has failed to establish a prima facie case of purposeful discrimination is a finding of fact and will not be overturned on review unless it is found to be against the manifest weight of the evidence. People v. Brisbon (1989), 129 Ill. 2d 200, 544 N.E.2d 297.

The correct procedure under Batson contemplates two distinct stages, namely, a hearing to ascertain whether the defendant has established a prima facie case of purposeful discrimination and, if so, a hearing in which the burden is shifted to the State to provide race-neutral explanations for exercising the peremptory challenges. Upon close review of the evidence in this case, we find that defendant met his burden in establishing a prima facie case of discrimination and that the judge erred in not requiring the State to provide a neutral explanation of its use of peremptory challenges.

We note initially that defendant meets the criterion of belonging to a cognizable racial group. Also, as previously stated, the record is unclear as to whether any black individuals were seated as jurors. While the mere number of black venire members peremptorily challenged, without more, will not establish a prima facie case of discrimination (People v. Mahaffey (1989), 128 Ill. 2d 388, 539 N.E.2d 1172; People v. Lockhart (1990), 201 Ill. App. 3d 700, 558 N.E.2d 1345), we find the existence of other relevant circumstances sufficient to require the State to provide an explanation for the use of five peremptory challenges exercised against blacks.

After the judge excused Craig as a juror, it is important to note the dialogue between the parties indicates the judge’s uncertainty as to the applicability of Batson in light of the fact that the victim was Hispanic and defendant was black. The judge’s comments suggested incorrectly that defendant might not have standing to raise the issue. However, the race of both the defendant and victim has been considered a material fact falling within the category of relevant circumstances that a court must consider at the prima facie stage of establishing a Batson claim. See People v. Mahaffey, 128 Ill. 2d 388, 539 N.E.2d 1172; People v. Andrews (1988), 172 Ill. App. 3d 394, 526 N.E.2d 628.

We find the determination that defendant did not establish a prima facie case of purposeful discrimination was against the manifest weight of the evidence. Before this court, the State argues that the excluded jurors are not a heterogeneous group having race as a common factor, but that the distinguishing factor in this selection is the education, or lack thereof, of the excluded jurors. We find, however, that the validity of the State’s explanation is more appropriately within the purview of the trial court.

Accordingly, this cause is remanded to the circuit court of Cook County for a hearing to allow the State to come forward with a neutral explanation for the use of its peremptory challenges against black venire members. We retain jurisdiction to review the determination on the subsequent Batson proceedings (Garrett, 139 Ill. 2d at 193-95, 564 N.E.2d at 786-87) and, if necessary, the remaining issues raised by defendant presented in this appeal.

Reversed and remanded with directions.

LaPORTA and RAKOWSKI, JJ., concur.


author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. FRANK TEAGUE, Petitioner-Appellant.
    First District (1st Division)
    No. 1—90—2663
    Opinion filed May 11, 1992.
    Rita A. Fry, Public Defender, of Chicago (Stephen Richards and Timothy J. Deeming, Assistant Public Defenders, of counsel), for appellant.
    John M. O’Malley, State’s Attorney, of Chicago (Renee G. Goldfarb and Kevin Sweeney, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Petitioner Frank Teague appeals from the circuit court’s dismissal of his post-conviction petition (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 1).

We affirm.

On direct appeal in 1982, we affirmed Teague’s convictions for attempted murder and armed robbery, rejecting, as is pertinent here, Teague’s claims relating to the State’s use of peremptory challenges during voir dire. Teague, who is black, was convicted by a jury comprised entirely of white individuals after the State used 10 of its peremptory challenges to exclude 10 black individuals from the venire. The State never denied using its challenges in that manner but offered, in partial explanation, that it was attempting to achieve a balance on the jury of individuals of like gender and age. Teague asserted that the State’s use of peremptory challenges violated his sixth amendment right to a fair trial because exclusion of blacks from the venire resulted in a jury comprised of less than a fair cross-section of the community. (People v. Teague (1982), 108 Ill. App. 3d 891, 895-96, 439 N.E.2d 1066, 1070.) The Illinois Supreme Court declined to review the matter (93 Ill. 2d 547, 449 N.E.2d 820), and the United States Supreme Court denied certiorari (464 U.S. 867, 78 L. Ed. 2d 179, 104 S. Ct. 206).

Teague then filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Illinois. Teague raised, for the first time, a contention that the State’s volunteered explanation for exercising its peremptory challenges could be examined under Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824, to establish purposeful racial discrimination in violation of the fourteenth amendment equal protection clause. That petition was denied, and Teague appealed to the United States Court of Appeals for the Seventh Circuit.

Initially, the court of appeals reversed the district court’s denial of the petition but vacated that decision, postponing consideration of Teague’s appeal, en banc, until the Supreme Court had decided Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, which was then pending. Following the decision in Batson, the court of appeals affirmed the district court decision, refusing to apply Batson retroactively. The court of appeals further determined that Teague was procedurally barred from making the contention based on Swain because he had failed to raise the issue at trial or on direct appeal.

On certiorari, a plurality of the Supreme Court affirmed the decision of the court of appeals. The Court observed that Teague had admitted that he had not raised the contention based on Swain until the habeas corpus proceedings. The resulting procedural default would bar Teague from raising the contention in collateral proceedings in Illinois courts under the Post-Conviction Hearing Act absent a determination that fundamental fairness required that the default be overlooked. (Teague v. Lane (1989), 489 U.S. 288, 297, 103 L. Ed. 2d 334, 347, 109 S. Ct. 1060, 1068.) Noting the limited application of that doctrine, the Court concluded Teague had exhausted his State law remedies with respect to the contention based on Swain and denied habeas corpus relief on that basis. Teague, 489 U.S. at 298, 103 L. Ed. 2d at 347-48, 109 S. Ct. at 1068.

Justice Stevens, however, was not convinced that Illinois courts were precluded from addressing the issue. (Teague, 489 U.S. at 326, 103 L. Ed. 2d at 366, 109 S. Ct. at 1083 (Stevens, J., concurring).) In a concurring opinion, he noted that, because Teague’s contention based on Swain first had been raised in the Federal habeas corpus proceedings, no “plain statement” had been made by any Illinois court regarding a procedural default. (Teague, 489 U.S. at 326, 103 L. Ed. 2d at 366, 109 S. Ct. at 1083 (Stevens, J., concurring).) Without such a disposition, the doctrine of fundamental fairness might allow the issue to be addressed despite the Supreme Court’s conclusion that Teague was procedurally barred from raising the issue. Teague, 489 U.S. at 326, 103 L. Ed. 2d at 366, 109 S. Ct. at 1083 (Stevens, J., concurring).

Teague subsequently filed the post-conviction petition at issue here.

The question presented is a narrow one. Under principles of res judicata, Teague is precluded from raising, in post-conviction proceedings, issues which have been addressed pursuant to a Federal habeas corpus petition. (See People v. Peery (1982), 108 Ill. App. 3d 843, 439 N.E.2d 1087.) Thus, we are not concerned directly with the merits of Teague’s contention that Swain does not preclude examination of the State’s volunteered explanation for the use of its peremptory challenges. The Supreme Court has determined that that argument is unavailable to Teague because of his failure to raise the issue at trial or on direct appeal. Teague, 489 U.S. at 297, 103 L. Ed. 2d at 347, 109 S. Ct. at 1067-68.

It is the nature of that failure with which we need be concerned. If the failure resulted from the ineffectiveness of Teague’s trial counsel, it would be fundamentally unfair to preclude Teague the opportunity to raise the contention based on Swain. Although the point is acknowledged within the context of Teague’s initial brief, Teague’s reply openly concedes that the only remaining issue regarding the contention based on Swain is the issue of ineffective assistance of counsel. Defense counsel iterated the point during oral argument. That issue is properly raised pursuant to a petition for post-conviction relief. See Ill. Rev. Stat. 1989, ch. 38, par. 122 — 1.

Assessing the merits of Teague’s claim of ineffective assistance of counsel depends largely on understanding the source of the contention. Prior to Batson, defendants were required to show an historical or “systematic” exclusion of black veniremen in order to assert successfully a claim of racial discrimination in jury selection founded on the equal protection clause of the fourteenth amendment. (See Swain, 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824.) In Swain, where that rule had been reaffirmed, the Court specifically noted, in deference to the nature of the peremptory challenge, that it could not “hold that the Constitution requires an examination of the prosecutor’s reasons for the exercise of his challenges in any given case.” Swain, 380 U.S. at 222, 13 L. Ed. 2d at 773, 85 S. Ct. at 837.

In Batson, the Supreme Court expanded a defendant’s ability to establish a claim of purposeful racial discrimination in jury selection by overruling that portion of Swain setting forth the necessary evidentiary showing to establish a prima facie case of discrimination. Batson, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712.) The Court also announced an additional analytical step, once a prima facie case was established, to determine whether the exercise of peremptory challenges operated to violate the equal protection clause. (Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723.) The burden shifts to the prosecutor to provide race-neutral explanations for the use of peremptory challenges. (Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723.) Development of that second analytical step made clear the Court had concluded that the fourteenth amendment did, indeed, require an examination into the prosecutor’s motives in exercising peremptory challenges in a particular case, contrary to its earlier language in Swain quoted above.

It is Teague’s misfortune, however, that the holding in Batson was of no direct benefit to him because of its prospective application. Teague was left without means to inquire as to the State’s motives for exercising its peremptory challenges. Observing that the State’s volunteered explanation was a distinguishing circumstance, and apparently encouraged by the subsequent interpretation given the equal protection clause in Batson, Teague here seeks to avoid the nonretroactive application of that case. Reading nothing in Swain to have precluded a contention that such a volunteered explanation could be scrutinized under the equal protection clause, Teague claims his counsel was ineffective for not having requested the trial judge to do so.

Admittedly, Swain cannot be read to preclude such a contention. That, however, is not the test for determining whether Teague was prejudiced by ineffective counsel. The effectiveness of Teague’s counsel must be assessed against an objective standard of reasonableness from the perspective of the time of the alleged error and without hindsight. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) That standard is not met where counsel fails to assert an argument formulated after the fact with the aid of a new legal rule. (See Smith v. Murray (1986), 477 U.S. 527, 91 L. Ed. 2d 434, 106 S. Ct. 2661.) Yet that is the essence of Teague’s argument. To accept Teague’s contention would require holding that the standard for measuring effectiveness includes an element of clairvoyance such that counsel should have anticipated the holding in Batson and recognized Swain did not preclude such analysis. We are not persuaded by Teague’s argument and conclude Teague did not receive ineffective assistance of counsel. Indeed, the history of the various appeals indicates that defense counsel should be commended for the efforts expended on Teague’s behalf.

Teague also argues that the trial judge failed to adequately question the venire regarding any bias concerning the defense of insanity and the practice of psychiatry as it relates to that defense. Although Teague admits we rejected the same contentions on direct appeal (108 Ill. App. 3d at 895, 439 N.E.2d at 1069), he now argues the subsequent decision in People v. Stack (1986), 112 Ill. 2d 301, 493 N.E.2d 339, provides reason to conclude the trial judge’s conduct deprived him of a fair trial.

In Stack, the supreme court held that where the defense of insanity is asserted, a defendant is entitled to ask the venire about any bias or prejudice the members might have about the defense specifically. (Stack, 112 Ill. 2d at 313, 493 N.E.2d at 343-44.) In view of the controversial nature of that particular defense, the court concluded, a defendant’s right to an impartial jury is not protected by simple inquiry into whether, as jurors, the members of the venire would follow the court’s instructions on the law. Stack, 112 Ill. 2d at 313, 493 N.E.2d at 344.

Nothing in the holding of Stack is of benefit to Teague. As we noted in our previous decision, the trial judge “questioned the entire venire regarding whether there was anything about the defense of insanity which would prevent them from being fair and impartial.” (Teague, 108 Ill. App. 3d at 894-95, 439 N.E.2d at 1069.) The questioning thus comports with the specific type of inquiry required by Stack and provides no basis upon which to disturb Teague’s convictions.

We therefore affirm the denial of Teague’s post-conviction petition.

Affirmed.

CAMPBELL and MANNING, JJ., concur.

      This court noted that Swain v. Alabama (380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824) provided, at that time, a basis to question the State’s use of peremptory challenges pursuant to the fourteenth amendment equal protection clause where the defendant could prove systematic exclusion of black individuals from the venire. (Teague, 108 Ill. App. 3d at 895-96, 439 N.E.2d at 1070.) However, Teague’s argument on direct appeal relied on the decision in People v. Payne (1982), 106 Ill. App. 3d 1034, 436 N.E.2d 1046, later reversed (99 Ill. 2d 135, 457 N.E.2d 1202), in which Payne had raised only sixth amendment based claims. (Teague, 108 Ill. App. 3d at 895-96, 439 N.E.2d at 1070; see Teague v. Lane (7th Cir. 1987), 820 F.2d 832, 834 n. 4, 837.) Justice Simon accurately observed that the Supreme Court’s holding in Swain had no bearing on the issues raised in Payne. Payne, like Teague, had only raised the sixth-amendment-based fair-cross-section contention. That argument was independent of whether the State had systematically excluded black individuals from the venire in violation of the fourteenth amendment equal protection clause. Payne, 99 Ill. 2d at 141, 457 N.E.2d at 1205 (Simon, J., dissenting).

      AIthough Illinois courts recognize fundamental fairness as a means by which to avoid the effect of a procedural default (see, e.g., People v. Ikerd (1970), 47 Ill. 2d 211, 265 N.E.2d 120), the doctrine escapes precise definition. At least one writer has described fundamental fairness to consist of “whatever a majority of an appellate court thinks it is in a specific case.” Wangerin, “Plain Error” & “Fundamental Fairness”: Toward a Definition of Exceptions to the Rules of Procedural Default, 29 DePaul L. Rev. 753, 766 (1980).


author: PRESIDING JUSTICE GREIMAN

text:
    OREST MRYSZUK, Plaintiff-Appellee, v. FLAVIO HOYOS, Defendant-Appellant.
    First District (3rd Division)
    No. 1—87—1352
    Opinion filed May 13, 1992.

      Robert Habib, of Chicago, for appellant.
    Frederic N. Scovell III, of Simon, McClosky & Scovell, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE GREIMAN

delivered the opinion of the court:

Following an ex parte bench trial in which defense counsel failed to appear at the appropriate time, defendant appeals the trial court’s denial of a motion to reconsider judgment. However, we find the trial court abused its discretion when it denied defendant’s motion to vacate. Pursuant to Illinois Supreme Court Rule 366 (107 Ill. 2d R. 366), we reverse the trial court’s decision as to defendant’s motion to vacate and remand for new trial.

This litigation arises from an automobile accident plaintiff and defendant had in 1980. Plaintiff claims defendant ran a red light to hit his car; defendant counterclaims he was in the intersection waiting to turn when plaintiff hit him.

The long and uneven procedural history of this case includes a default judgment that plaintiff obtained in 1985 when defendant moved and his attorney never received his new address. However, defendant’s section 2 — 1401 petition to vacate that judgment was granted, and after four requests for continuances by plaintiff, trial was finally set for February 18,1987.

On the day of trial, defense counsel was detained in another court and missed the first two calls for defendant’s case. On the third call, with defense counsel absent, the trial judge heard the case ex parte with only plaintiff testifying as to the cause of the accident.

Plaintiff testified that he was moving through a green light when defendant hit him. He also presented a verified affidavit that stated he incurred $2,120.95 in damages, and presented evidence as to those damages. The trial court entered judgment for plaintiff, awarding him $2,120.95.

Defendant’s attorney had scheduled a hearing in Federal immigration court prior to defendant’s trial call and was told that matter would conclude by 10:30 a.m., but it did not finish until 11:30 a.m. Counsel had previously instructed defendant to request the trial court to hold the matter until he arrived. While defendant was in the courtroom at the time his case was called, he was unfamiliar with courtroom procedure and so failed to make an appearance or otherwise make his presence known. When defense counsel did arrive, he waited until the trial court concluded its other business before asking leave to approach the bench, which the trial court refused.

On March 11, 1987, defendant filed a motion to vacate ex parte judgment entered February 18, 1987, and obtained a hearing date of March 23, 1987, which was continued to March 31, 1987. On March 31, 1987, the trial court entered an order denying defendant’s motion to vacate and denying defendant’s motion to reconsider judgment entered February 18, 1987. Defendant here appeals only the court’s decision as to the motion to reconsider.

Plaintiff argues that the motion to reconsider was not timely filed and thus this court has no jurisdiction on appeal. However, we find that it was timely since the trial court signed the order, drawn up by plaintiff’s attorney, which specifically denied both motions and the twice-reconstructed record provides no conclusive evidence that the motion to reconsider was not timely made.

Defendant does not argue on appeal that the trial court’s judgment of February 17, 1987, should be vacated. Generally, such an omission would find defendant had waived that issue. However, we find that the trial judge’s action in denying defendant’s motion to vacate was an abuse of discretion affecting defendant’s substantial rights.

Under section 2 — 1203 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1203), a party may file a motion after a judgment in a nonjury case within 30 days after the entry of the judgment and a timely filed motion stays enforcement of the judgment.

Whether to grant a post-trial motion is ordinarily within the discretion of the trial court. (In re Marriage of Potter (1980), 88 Ill. App. 3d 606, 609-10, 410 N.E.2d 999.) The purpose of a motion to vacate a judgment is to alert the trial court to errors it has made and to afford an opportunity for their correction. (Sanborn v. Sanborn (1979), 78 Ill. App. 3d 146, 396 N.E.2d 1192.) Whether a trial court has abused its discretion turns on whether the court’s refusal to vacate “violates the moving party’s right to fundamental justice and manifests an improper application of discretion.” Harris v. Harris (1977), 45 Ill. App. 3d 820, 821, 360 N.E.2d 113.

The abuse of discretion standard for reviewing decisions made under section 2 — 1203 includes an inquiry as to “whether substantial justice is being done between the litigants and whether, under the circumstances of the case, it is reasonable to compel the other party to go to trial on the merits.” In re Marriage of Sheber (1984), 121 Ill. App. 3d 328, 334, 459 N.E.2d 1056.

We find that the interests of fairness and justice compel the exercise of the equitable powers of this court to remand this case for new trial. While Sheber states that a movant is not required to show a meritorious defense or present a good excuse for failure to appear in court in order to obtain a vacatur, we find both of these factors present in defendant’s case.

Defendant provided a meritorious defense and counterclaim that it was plaintiff who was negligent in proceeding through the intersection after the light turned green, because defendant was simply waiting for traffic to stop to complete his turn when plaintiff hit him.

The circumstances of the case also establish that defense counsel had a reasonable explanation for not appearing on time and was duly diligent in trying to rectify the situation. Defense counsel’s late appearance was inappropriate, harmful to defendant’s interests and showed poor planning. However, counsel’s explanation of the circumstances surrounding the unfortunate situation was certainly unintentional and comprehendible.

Defense counsel explained that since the trial was continued on four earlier dates at plaintiff’s behest, counsel was anxious to conclude the litigation in his client’s best interests, so agreed to February 18, 1987. Further, he stated that he made inquiries to the personnel of the Federal immigration court as to when he could expect to conclude proceedings there and was told that he would be done by 10:30 a.m.

Counsel also tried to allow for any unexpected lateness by instructing defendant to inform the court that he would be there shortly, which defendant, in his unfamiliarity with the court system, failed to do. Counsel explained that when he realized he would be late, he was unable to phone from the Federal court because there were no nearby telephones. As soon as possible, counsel phoned and instructed an associate to appear on defendant’s behalf, but by then defendant’s case had been heard. At most, defense counsel was one hour late.

We reverse because we find the trial court abused its discretion in denying defendant’s motion to vacate judgment since defendant posed a meritorious position, plaintiff would suffer no hardship from vacatur and sufficient rational reasons existed for counsel’s failure to appear on time.

We remand for new trial because we find that substantial justice was not done by the trial court’s decision and that under the circumstances of the case, defendant is entitled to argue the merits.

Because we reach this decision, we need not determine the other issues raised in this case.

Reversed and remanded.

TULLY and CERDA, JJ., concur.


author: JUSTICE LORENZ

text:
    RONALD POTURALSKI, Appellant, v. THE POLICE BOARD OF THE CITY OF CHICAGO, Appellee.
    First District (5th Division)
    No. 1—90—3150
    Opinion filed May 1, 1992.

      Law Offices of Joseph V. Roddy, of Chicago, for appellant.
    Kelly R. Welsh, Corporation Counsel, of Chicago, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Appellant, Ronald Poturalski, appeals from an order dismissing his complaint for administrative review and affirming the decision of appellee, the Police Board of the City of Chicago (board), to discharge him as a police officer. We consider whether the trial judge properly dismissed Poturalski’s complaint when he failed to name the superintendent of police as a party and issue summons on him within 35 days of receiving the agency’s decision. For the following reasons, we affirm.

Poturalski was employed as a police officer with the City of Chicago. In March of 1989, the superintendent of the police department filed charges against Poturalski alleging, among other things, that he did not live in the city as required under the department’s rules. The board held a hearing on the charges, and based on the evidence presented, it found that Poturalski did not live in the city. In a written decision, the board discharged him from his duties as a police officer on August 2, 1989.

Poturalski filed a complaint for administrative review on September 1, 1989, and named only the board as a defendant. Because Poturalski failed to name the superintendent as a defendant, the board moved to dismiss the complaint arguing he was a necessary party. The motion to dismiss was denied and the board answered the complaint.

The board renewed its motion to dismiss a few months later after the supreme court decided in Lockett v. Chicago Police Board (1990), 133 Ill. 2d 349, 549 N.E.2d 1266, that a superintendent who filed charges was a necessary party to an action for administrative review of the police board’s decision.

Before a hearing was held on the board’s renewed motion, Poturalski moved for leave to amend his complaint to add the superintendent as a party. The trial judge granted the motion, and on June 15, 1990, Poturalski filed an amended complaint naming the superintendent and issued a summons for him. However, the judge later granted the board’s motion to vacate that ruling because Poturalski failed to give the board notice of the motion to amend.

After a hearing on the board’s motion to dismiss, the judge dismissed the complaint and also affirmed the board’s ruling discharging Poturalski. Poturalski now appeals.

Opinion

The procedures of the Administrative Review Law (the Act) (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 101 et seq.) must be strictly adhered to on judicial review of an administrative agency’s decision. (Lockett, 133 Ill. 2d 349, 549 N.E.2d 1266.) Unless review of the agency’s decision is sought within the time and manner provided under the Act, judicial review of the agency’s decision shall be barred. (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 102.) A complaint for administrative review must be filed and summons must be issued within 35 days of receipt of the administrative agency’s decision. (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 103.) The administrative agency and all persons, other than plaintiff, who were parties of record to the proceedings before the agency must be made defendants in an action for administrative review. Ill. Rev. Stat. 1989, ch. 110, par. 3 — 107.

In Lockett, the supreme court found that a superintendent of police, who had filed charges which resulted in the dismissal of an officer, was a party of record to the police board’s proceedings and a necessary party to the officer’s action for administrative review. The court noted that the 35-day period to issue summons is mandatory rather than jurisdictional and it may be relaxed if a party made a good-faith effort to issue summons within the required period but due to circumstances beyond his or her control, summons was not issued within that period. However, the failure to name parties of record and issue summons on them within the 35-day period cannot be cured by subsequent amendment to the complaint. The officer in Lockett did not name the superintendent and issue summons on him within the 35-day period and there was no evidence that the officer made a good-faith effort to do so. As a result, the court found that the officer’s failure to comply with the Act required dismissal of the complaint.

Although Poturalski initially argued that Lockett should only be applied prospectively rather than retroactively, at oral argument he waived that issue. At least two appellate court decisions have held that Lockett should be applied retroactively. Marozas v. Board of Fire & Police Commissioners (1991), 222 Ill. App. 3d 781, 584 N.E.2d 402; Strang v. Department of Transportation (1990), 206 Ill. App. 3d 368, 564 N.E.2d 261.

The facts of Lockett are essentially identical to the present case and its holding is directly applicable here. In this case, the superintendent filed the charges which resulted in Poturalski’s dismissal. As in Lockett, the superintendent here was a party of record and a necessary party to the complaint. Poturalski, however, failed to name the superintendent in his complaint for administrative review and failed to issue summons on him within the 35-day period. Lockett dictates that when a party of record was not named as a defendant and summons was not issued on that party within the 35-day period, the complaint must be dismissed. Although Lockett also recognized that a good-faith effort to issue summons within the time period may warrant relaxing the rule, it is undisputed in this case that Poturalski made no effort to comply with the Act during that time period. Further, because Lockett overturned appellate court decisions which held to the contrary, Poturalski’s failure to name the superintendent and issue summons within the time period could not be cured by amending his complaint. (See also Gilty v. Village of Oak Park Board of Fire & Police Commissioners (1991), 218 Ill. App. 3d 1078, 578 N.E.2d 1294.) As a result, dismissal of Poturalski’s complaint was required.

At oral argument in this court, Poturalski for the first time raised an argument that the board denied him procedural due process when it failed to notify him that he had a right to appeal within 35 days of receiving its decision, relying on Johnson v. State Employees Retirement System (1987), 155 Ill. App. 3d 616, 508 N.E.2d 351. Because Poturalski failed to preserve this argument, it is waived. (134 Ill. 2d R. 341(e)(7).) We note that, unlike the situation in Johnson, Poturalski filed a timely complaint despite the alleged failure of the board to notify him of his right to appeal.

Affirmed.

MURRAY and GORDON, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WALTER L. JACKSON, Defendant-Appellant.
    First District (6th Division)
    No. 1—90—1156
    Opinion filed May 1, 1992.
    Rehearing denied June 9, 1992.

      Karoll & Raidbard, of Chicago (Marv Raidbard, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Michael Latz, and John E. Gilhooly, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Following a trial in which defendant Walter L. Jackson proceeded pro se, the jury found defendant guilty of the murder of his brother, Anthony Jackson. The court subsequently imposed a sentence of 49 years’ imprisonment. On appeal, defendant contends that he did not knowingly and intelligently waive his right to counsel; that the State’s failure to disclose a prosecution witness until the commencement of trial did not allow him adequate time to prepare his defense; that he was not proved guilty beyond a reasonable doubt; and that his constitutional rights were violated when he was not afforded a prompt preliminary hearing.

On September 4, 1988, defendant was arrested in Baton Rouge, Louisiana, under a fugitive from justice warrant which charged him with two counts of first-degree murder of the deceased. On November 30, 1988, defendant was extradited from Louisiana to Illinois. Thereafter, on December 29, 1988, the grand jury returned a true bill indicting defendant for first-degree murder in violation of section 9 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1).

On May 17, 1989, defendant filed a pro se motion before Judge John Morrissey requesting representation by counsel other than the public defender. The judge denied defendant’s motion, finding that he failed to state any grounds for the relief sought. On June 14 and 23, 1989, defendant repeated his request for other counsel, contending that he could not communicate with counsel from the public defender’s office. Judge Morrissey denied these motions. On October 2, 1989, defendant again filed motions in which he sought appointment of other counsel, and a motion to dismiss Donna Foley, the public defender appointed to represent him. Both motions were denied.

On December 8, 1989, defendant filed a pro se motion for substitution of judge, which was heard before Judge Mary Maxwell Thomas. At that time, Foley filed a motion to withdraw and for appointment of other counsel, stating that defendant filed a complaint with the Attorney Registration and Disciplinary Commission (ARDC) alleging ineffective assistance of counsel. Because defendant’s complaint extended to any attorney from the public defender’s office, Foley requested that the public defender’s office be allowed to withdraw to avoid any possible appearance of impropriety.

At the hearing before Judge Thomas, defendant requested that he be allowed to represent himself and proceed pro se. After admonishing defendant that he had to be prepared to represent himself in all ways, and that he would be held to the same standard as any practicing lawyer admitted to the bar, Judge Thomas allowed the public defender’s office to withdraw and defendant to represent himself. Defendant’s education consisted of a high school equivalency certificate. The court determined that defendant was mentally fit to stand trial and legally sane.

On December 11, 1989, another hearing was conducted before Judge Thomas, wherein the following colloquy occurred.

“THE COURT: The charge is two counts of first degree murder and one count of unlawful use of a firearm by a felon.
THE DEFENDANT: Yes.
THE COURT: First degree murder charge *** would carry a penalty from 20 to 60 years. That would be the penalty. I don’t know what your background is. If there were certain aggravating factors, it could carry a death penalty, that is a possibility. You understand that ***.
And you have, of course I know that you know this, but I’m just going to say it because I want to make sure that you understand that you are waiving your right to have an attorney in open court. That you have the right to have a lawyer, and if you are without funds to hire a lawyer to have counsel appointed by this court to represent you. What you have had in the past, is that correct?
THE DEFENDANT: Yes.
THE COURT: The Court admonished you extensively about your desire of waiving an attorney and to represent yourself, is that correct?
THE DEFENDANT: Yes.
THE COURT: And in light of all that and knowing the possible penalties, you are still electing at this time to represent yourself, is that correct?
THE DEFENDANT: Yes, your Honor.”

On December 15, 1989, defendant again stated that he wanted to exercise his sixth amendment right to self-representation. Judge Thomas repeated her admonishment that defendant was running a very strong risk of jeopardizing his position by representing himself at trial. Judge Thomas denied defendant’s motion for substitution of judge and referred the case back to Judge Morrissey.

On December 18, 1989, Judge Morrissey found that Judge Thomas had no authority to permit the public defender to withdraw from the case. Judge Morrissey asked defendant whether he wanted a lawyer; defendant refused the offer and indicated that he wanted to proceed pro se. Judge Morrissey questioned defendant as to whether he understood the nature of the charges against him, the minimum and maximum sentencing range, and that defendant had a right to appointed counsel. Defendant again stated that he wanted to exercise his right to self-representation. Judge Morrissey then allowed the public defender leave to withdraw from representing defendant.

On January 8, 1990, defendant appeared before Judge Morrissey, filed numerous pro se motions and demanded a jury trial. Trial was scheduled to start on February 5, 1990. However, on that date defendant informed the court that he was not ready to proceed and that he wanted appointed counsel other than the public defender.

On February 6, 1990, defendant appeared before Judge John W. Crilly and again sought a substitution of judge. After Judge Crilly’s inquiry about defendant’s self-representation, the following dialogue transpired:

“THE COURT: You’re acting as your attorney, are you?
[DEFENDANT]: Only because I was forced to, your Honor. I tried to get counsel other than the public defender. The public defender had withdrew from my case, asked leave. I don’t know if that pertains to this motion here, but Judge Morrissey denied me that, so I’m forced to represent myself.”

Judge Crilly denied defendant’s motion for substitution of judge, finding no evidence of Judge Morrissey’s bias against defendant. Defendant proceeded pro se at trial and was assisted by standby advisory counsel from the public defender’s office who was appointed by Judge Morrissey.

The following testimony was adduced at trial. Jessie Kimble testified on behalf of the State that on August 30, 1988, at approximately 12:30 p.m., he was in the vicinity of 4020 West Maypole, Chicago. Kimble and two other persons were drinking beer in a vacant lot. Upon hearing a gunshot, Kimble turned around and saw defendant holding a pistol while standing near the driver’s door of a car stopped on Maypole. Defendant’s sister, Ella Jackson, was also standing near the car. Kimble watched the deceased running east on Maypole away from defendant. Defendant got into his car and drove away. Kimble found the deceased lying on the ground at the intersection of Maypole and Pulaski. Another brother, Melvin Jackson, was standing above the deceased. Under cross-examination, Kimble testified that he did not see anyone point the gun because his back was towards the action; however, he heard the gunshot come from the area where defendant was standing.

Dr. Margarita Arruza, who performed the autopsy on the deceased, testified that she found a bullet hole in the back of the victim, with no exit wound. Dr. Arruza opined that the deceased was killed by a gunshot wound through the back that involved the left lung and the heart.

Ella Jackson, sister of both the deceased and defendant, testified on behalf of the State that on the afternoon of the occurrence, she was walking across Maypole with the deceased when defendant and Melvin drove up in a car. Defendant and Melvin both got out of the car and began a conversation with the deceased and Ella. An argument ensued between the deceased and defendant. Defendant retrieved a pistol from the car and hit the deceased on the forehead with the gun. The blow caused the deceased to fall to the ground. The deceased then arose and began running down the street away from defendant. Ella heard two shots ring out, which appeared to be fired by defendant. Under cross-examination, Ella testified that after she heard the shot, she assumed defendant fired at Anthony because they were arguing, but that she did not see the actual shooting.

Melvin Jackson testified on behalf of the State that defendant picked Melvin up on the morning of the occurrence and asked him to accompany him while he picked up some cocaine to sell. After picking up the cocaine, they returned to Maypole and approached Ella and the deceased.

Defendant and the deceased got into an argument over a gun. Defendant then went to the trunk of the car and removed a silver .22 gun with a short barrel and black handle. Defendant struck the deceased in the face with the gun. The deceased fell to the ground, jumped up, turned and ran away from defendant. Defendant ran behind the deceased and shot him in the back at a distance of 10 to 12 feet. The deceased reached for his back, but continued running down the street. Melvin saw the deceased fall to the ground and unsuccessfully attempted to help him.

Under cross-examination, Melvin stated that he did not tell the police the same story at first because he did not want his mother to know about his involvement with drugs. However, later that evening, defendant informed the police that defendant shot the deceased.

Detective David Dalponte of the Chicago police department testified for the State that he and a partner flew to Louisiana to extradite defendant. Dalponte also recovered a .22 caliber revolver found in defendant’s possession at the time of the arrest.

Officer Richard Chenow testified on behalf of defendant as a ballistics expert. Chenow examined the .22 long rifle caliber bullet recovered from the deceased and the .22 long rifle caliber gun found in defendant’s possession upon his arrest and found no matching individual characteristics. On cross-examination, Chenow stated that the evidence bullet removed from deceased bore the same class characteristics as test-fired bullets fired from the .22 long rifle caliber gun. Chenow further testified that the barrel of the gun was so heavily leaded that it obscured the individual characteristics which may have been in the gun at the time it was fired.

On appeal, defendant first contends that he did not knowingly and intelligently intend to waive his right to counsel, but was forced to proceed pro se after withdrawal of the public defender’s office.

According to Supreme Court Rule 401 (134 Ill. 2d R. 401(a)), a defendant can waive his right to counsel under the following circumstances:

“(a) Waiver of Counsel. Any waiver of counsel shall be in open court. The court shall not permit a waiver of counsel by a person accused of an offense punishable by imprisonment without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; and
(3) that he has a right to counsel and, if he is indigent, to have counsel appointed for him by the court.”

It is well established that whether there has been a waiver of the right to counsel is a matter to be determined by the trial court, and that decision will not be reversed absent an abuse of discretion. (People v. Graves (1984), 134 Ill. App. 3d 473, 480 N.E.2d 1142; People v. Amft (1982), 109 Ill. App. 3d 619, 440 N.E.2d 924.) A careful inquiry must be made to determine defendant’s ability to conduct his own defense, focusing on his age, level of education, mental capacity, and prior experience with legal proceedings. People v. Kavinsky (1980), 91 Ill. App. 3d 784, 414 N.E.2d 1206.

We reject defendant’s argument that he did not knowingly and intelligently intend to waive his right to counsel. Review of the record indicates that both Judges Morrissey and Thomas queried defendant as to whether he understood the nature of the charges, the maximum and minimum penalties prescribed by law, and the right to appointed counsel if indigent. Both judges strongly discouraged defendant from embarking upon his own defense, yet defendant persisted in invoking his sixth amendment right to self-representation. Defendant, age 37, had earned a high school equivalency certificate and had been found mentally fit to stand trial. Defendant had several arrests prior to this offense and also filed numerous pro se pretrial motions in this case; thus, it appears that defendant possessed sufficient familiarity with the judicial process to advance his defense. In addition, the trial judge also assigned an assistant public defender as advisory counsel to assist defendant throughout the trial.

We are also unpersuaded by defendant’s trial-day request for other counsel because of the public defender’s withdrawal. We first note that the public defender withdrew because defendant filed a complaint for ineffective assistance of counsel before the ARDC. More importantly, however, at the three hearings conducted before Judge Thomas, and during the two hearings before Judge Morrissey, defendant unequivocally indicated his desire to proceed pro se and agreed to begin trial on February 5, 1990. As such, we find defendant’s trial-day request for other counsel little more than a dilatory tactic. The right to counsel of one’s own choosing cannot be permitted to indefinitely thwart the administration of justice or otherwise impede the effective prosecution of crime. People v. Little (1990), 207 Ill. App. 3d 720, 566 N.E.2d 365.

We also note parenthetically that it was well within the discretion of the trial court to deny defendant’s request for counsel other than the public defender. Although defendant has an unqualified right to assistance of counsel, he does not have an unqualified right to choose his court-appointed attorney. (People v. Morrissette (1986), 150 Ill. App. 3d 431, 501 N.E.2d 781; People v. Johnson (1982), 109 Ill. App. 3d 511, 440 N.E.2d 992.) Absent a showing of good cause, it is within the court’s discretion to deny such a request. (People v. Dorsey (1982), 109 Ill. App. 3d 218, 440 N.E.2d 394.) In this case, defendant failed to show good cause for appointing an attorney other than the public defender.

Defendant next contends that he was not informed of the State’s intention to call Jessie Kimble to testify; thus, he was denied a fair trial because he did not have an opportunity to interview this witness. However, the record indicates that in the State’s response to defendant’s pretrial discovery filed on April 4, 1989, the name of Jessie Kimble was included among the list of persons who might be called to testify at trial. Assuming arguendo that defendant did not have the opportunity to review the State’s list of witnesses, his failure to object to the testimony of Kimble at trial on the basis of nondisclosure constitutes a waiver of this issue on appeal. People v. Zarebski (1989), 186 Ill. App. 3d 285, 542 N.E.2d 445.

Defendant further asserts that he was not proved guilty beyond a reasonable doubt. Specifically, defendant states that the testimony of Ella and Melvin Jackson was insufficient to prove that he shot his brother.

It is well established that the standard of review for challenging a criminal conviction based upon reasonable doubt is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) (Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.) Our supreme court has held that a criminal conviction will not be reversed “unless the evidence is so unreasonable, improbable, or so unsatisfactory as to justify a reasonable doubt of the defendant’s guilt.” People v. Young (1989), 128 Ill. 2d 1, 51, 538 N.E.2d 453, 461; see also People v. Hooper (1989), 133 Ill. 2d 469, 552 N.E.2d 684.

We conclude that defendant was proved guilty beyond a reasonable doubt. Melvin and Ella Jackson, defendant’s brother and sister, testified that on the afternoon of the offense, defendant and the deceased became embroiled in an argument. Further testimony indicated that defendant shot the deceased in the back as he ran away from defendant. The testimony of Jessie Kimble, a disinterested witness, corroborates the testimony of Melvin and Ella Jackson. A reviewing court may not substitute its judgment for that of the trier of fact on questions involving the weight of the evidence or the credibility of the witnesses. People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313.

Defendant’s final argument posits that his constitutional rights were violated because he was not afforded a prompt preliminary hearing establishing probable cause that he committed the crime for which he was arrested.

Defendant was taken into custody on September 4, 1988, in Louisiana. He was extradited from Louisiana to Illinois on November 30, 1988, and was indicted by the grand jury on December 29, 1988.

Section 109 — 3.1(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 109 — 3.1(b)) provides in relevant part:

“(b) Every person in custody in this State for the alleged commission of a felony shall receive either a preliminary examination as provided in Section 109 — 3 or an indictment by Grand Jury as provided in Section 111 — 2, within 80 days from the date he or she was taken into custody.” (Emphasis added.)

In People v. Perez (1981), 100 Ill. App. 3d 901, 427 N.E.2d 229, this court held that the 120-day period within which the State is required to bring defendant’s case to trial does not commence on the date defendant was taken into custody; rather, it begins on the date when defendant was extradited to Illinois. (See also People v. Hayes (1962), 23 Ill. 2d 527, 179 N.E.2d 660; People v. Gilliand (1971), 131 Ill. App. 2d 635, 267 N.E.2d 140.) We find that the grand jury indictment of December 29, 1988, following defendant’s return to Illinois on November 30, 1988, demonstrates sufficient compliance with this well-established rule.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

EGAN, P.J., and RAKOWSKI, J., concur.


author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES F. BOMMERSBACH, Defendant-Appellant.
    First District (1st Division)
    No. 1—90—0689
    Opinion filed May 4, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Stephanie L. Ellbogen, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Janet Mahoney, and Leslie Quade, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a hearing before a jury, defendant, James F. Bommersbach, was adjudicated a sexually dangerous person and committed to the custody of the State of Illinois Department of Corrections. On appeal, defendant contends that: (1) the trial court erred in rejecting a proposed voir dire question concerning the venire members’ opinions as to the validity of psychiatric testimony; and (2) defendant was prejudiced by the testimony of two nonqualified psychiatrists. For the following reasons, we affirm the judgment of the trial court.

The following facts are relevant to this appeal. On December 15, 1987, defendant was arrested and charged with the attempted aggravated criminal sexual assault of two prostitutes. At that time, defendant was on Federal parole.

On January 23, 1990, a hearing was conducted for the purpose of adjudging defendant a sexually dangerous person pursuant to the Sexually Dangerous Persons Act (Ill. Rev. Stat. 1987, ch. 38, par. 105— 1.01 et seq.). At the hearing, the State presented evidence of defendant’s numerous prior convictions during the period 1951 to 1981 for indecent liberties with a child, aggravated kidnapping, rape, sexual assault, indecent assault, forcible confinement, weapons offenses, and violation of probation. The evidence at the hearing revealed that defendant was twice declared a criminal sexual psychopath, in 1960 and again in 1967.

In addition, four psychiatrists testified that, in their opinions, defendant was a sexually dangerous person. At the time Dr. Stipes examined defendant, he had been a psychiatrist with the Psychiatric Institute of the Cook County Circuit Court for 10 years. He testified that defendant suffered from antisocial personality disorder as well as the three sexual deviations of sexual sadism, pedophilia and transvestic fetishism. The testimony of Dr. Kaplan, a psychiatrist with the same Institute since 1960, corroborated that of Dr. Stipes.

Dr. Hardy testified that he had been a psychiatric consultant with the Forensic Psychiatric Center at Rush-Presbyterian-St. Luke’s Hospital for three years at the time he examined defendant. Dr. Hardy testified as to the psychological tests to which defendant was subjected, and his testimony corroborated that of the other testifying doctors with regard to defendant’s sexual deviations and propensity to commit crimes. Dr. Hardy testified that he relied on the psychological reports prepared by other doctors and conferred with Dr. James Cavanaugh.

Dr. Markos, a psychiatrist with the Psychiatric Institute, testified that at the time he examined defendant, he had been a licensed physician in the State of Illinois for six to seven years and that he has been diagnosing mental disorders since 1978. Upon graduating from medical school, Dr. Markos completed five years of residency training in general psychiatry at the University of London in the United Kingdom, and a one-year fellowship training program at the Isaac Ray Center at Rush-Presbyterian-St. Luke’s Hospital in Chicago. Dr. Markos completed an additional intern program at Mount Sinai Hospital and Medical Center in Chicago. In 1986, Dr. Markos became employed by the circuit court of Cook County. Dr. Markos examined defendant on two separate occasions, in March 1989 and April 1989, and diagnosed defendant as suffering from antisocial personality disorder. Dr. Markos concurred that defendant is a sexually dangerous person.

After the hearing, the trial judge found defendant to be a sexually dangerous person and committed him to the custody of the Illinois Department of Corrections for an indeterminate period. Defendant’s timely appeal followed.

Defendant first contends that the trial court erred in refusing to ask one question of prospective jurors during voir dire about their opinions regarding the validity and value of psychiatric testimony. Defendant argues that the jurors’ attitude towards psychiatrists and psychiatric testimony is a relevant area of inquiry similar to the nature of police officers’ testimony.

The purpose of voir dire is to assure the selection of an impartial jury (People v. Bowel (1986), 111 Ill. 2d 58, 64, 488 N.E.2d 995), and the scope of permissible questioning during voir dire is properly left to the sound discretion of the trial court. (People v. Thomas (1990), 137 Ill. 2d 500, 548, 561 N.E.2d 57.) Voir dire questioning may not be used as a means for preeducating and indoctrinating prospective jurors as to a particular theory or defense or impanel-ling a jury with particular predispositions (Bowel, 111 Ill. 2d at 64; 134 Ill. 2d R. 234), nor may the questions concern matters of law or instructions. (People v. Skipper (1988), 177 Ill. App. 3d 684, 687, 533 N.E.2d 44.) The standard for evaluating the court’s exercise of its discretion on voir dire is whether the means employed to test impartiality have created a reasonable assurance that prejudice would be discovered if present. People v. Page (1990), 196 Ill. App. 3d 285, 288-89, 553 N.E.2d 753.

In the present case, during voir dire, the trial judge informed the members of the jury venire that the court was seeking fair and impartial jurors who would be free from bias, prejudice or sympathy and inquired of each individual member whether he or she could be fair. The trial judge admonished the venire members that defendant is presumed not to be a sexually dangerous person and that this presumption is not overcome until the State proves otherwise, beyond a reasonable doubt. The trial judge properly instructed the jury on its role in assessing the weight of the evidence and ability to follow the trial court’s instructions. We find that the trial judge’s questioning properly assured defendant of a fair and impartial jury.

The case relied upon by defendant, People v. Stack (1986), 112 Ill. 2d 301, 493 N.E.2d 339, is inapposite here. Stack specifically addressed the defense of legal insanity. The trial judge there agreed to pose questions to the jury members regarding their attitudes toward the insanity defense “when such is involved in a case.” (Stack, 112 Ill. 2d at 313.) The defense of insanity is not a defense in the present case. The State correctly argues that by his proposed question, defendant seeks particular kinds of jurors, rather than simply fair and impartial jurors, and that the question would serve no purpose other than to improperly attempt to preeducate and indoctrinate the jurors as to defendant’s theory of the case. (Skipper, 177 Ill. App. 3d at 688.) Thus, we reject defendant’s contention.

Next, defendant contends that he was prejudiced by the testimony of two of the psychiatrists who were not “qualified psychiatrists” as defined under the Sexually Dangerous Persons Act. (Ill. Rev. Stat. 1989, ch. 38, par. 105 — 4.) Defendant objects to the testimony of Drs. Hardy and Markos because they were not board-certified psychiatrists for five years, and to Dr. Hardy’s testimony because he relied on conferrals with Dr. Cavanaugh in reaching his assessment of defendant. The State responds initially that defendant has waived this issue for review for failure to both object at trial and raise the issue in his motion for new trial. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124.) Even if the issue is not waived, defendant’s contention is without merit.

Under the Sexually Dangerous Persons Act (Act), an allegedly sexually dangerous individual must be examined by two “qualified psychiatrists” who are to file a written report of their findings with the court. (Ill. Rev. Stat. 1989, ch. 38, par. 105 — 4.) Section 4 of the Act defines a “qualified psychiatrist” as follows:

“ ‘Qualified psychiatrist’ means a reputable physician licensed in Illinois to practice medicine in all its branches, who has specialized in the diagnosis and treatment of mental and nervous disorders for a period of not less than 5 years.” Ill. Rev. Stat. 1989, ch. 38, par. 105-4.01.

Defendant contends that the trial court erred in allowing the testimony of Dr. Hardy because he was not board certified for five years at the time of his evaluation. Dr. Hardy testified that he had been practicing psychiatry for three years at the time he evaluated defendant. The State concedes that Dr. Hardy was not a “qualified psychiatrist” under the Act at the time he examined defendant, but indicates that the Act only requires that two qualified psychiatrists examine a defendant and file a written report, and that the Act does not prohibit other doctors from examining a defendant or testifying at trial.

In the present case, defendant was examined by four physicians other than Dr. Hardy: Drs. Cavanaugh, Stipes, Kaplan, and Markos, and all four doctors filed written reports. Three of these doctors testified at trial that defendant was a sexually dangerous person. Where it can be concluded that retrial without the erroneous admission of challenged evidence would produce no different result, the evidence is harmless. (People v. Arman (1989), 131 Ill. 2d 115, 124, 545 N.E.2d 658.) Moreover, the testimony of one qualified psychiatrist is sufficient to establish a prima facie case, absent contradictory reports, where two doctors have examined a defendant and filed reports with the court and only one doctor testifies. (People v. Covey (1966), 34 Ill. 2d 195, 197, 215 N.E.2d 220.) Thus, Dr. Hardy’s testimony was harmless.

Defendant further contends that Dr. Markos was not a “qualified psychiatrist” under the Act because he has only been board certified since 1987. When computing the five-year requirement for specialization in diagnosis of mental disorders, medical residences in the treatment and diagnosis of mental disorders may be taken into account. People v. Oliver (1975), 32 Ill. App. 3d 772, 775, 336 N.E.2d 586, rev’d on other grounds (1976), 63 Ill. 2d 553, 401 N.E.2d 1390.

Dr. Markos testified that at the time he examined defendant he had been a licensed physician in the State of fllinois for six to seven years. He further testified that he has been diagnosing mental disorders since 1978, and completed five years of residency training in general psychiatry, a one-year fellowship training program, and an additional intern program. Dr. Markos has been employed with the circuit court of Cook County since 1986. Taking into account Dr. Markos’ residencies and training, he has been diagnosing mental disorders for 12 years. Therefore, Dr. Markos is qualified under the Act.

Finally, defendant contends that Dr. Hardy’s testimony regarding his conferences with Dr. Cavanaugh constituted inadmissible hearsay. Dr. Hardy testified that he relied upon several of Dr. Cavanaugh’s conclusions about defendant in formulating his own opinion. Although Dr. Hardy did not read Dr. Cavanaugh’s notes, he conferred with Dr. Cavanaugh throughout defendant’s evaluation process.

Dr. Hardy’s testimony is fully admissible, as an expert may testify about facts not in evidence as long as the facts are customarily relied on by experts in the field to form opinions. (People v. Wright (1985), 111 Ill. 2d 128, 154, 490 N.E.2d 640; Wilson v. Clark (1981), 84 Ill. 2d 186, 193, 417 N.E.2d 1322.) Experts may testify as to data presented to them outside of court and other than by their own perceptions. (Wilson, 84 Ill. 2d at 193.) Further, a new hearing without Dr. Hardy’s testimony would not produce a different result. Accordingly, Dr. Hardy’s testimony regarding his conferrals with Dr. Cavanaugh was harmless.

For the aforementioned reasons, the judgment of the trial court is affirmed.

Affirmed.

O’CONNOR and MANNING, JJ., concur.


text:
    CYNTHIA RILEY, Special Adm’r of the Estate of John E. Riley III, Plaintiff-Appellee, v. PRAFULLA KONERU et al., Defendants-Appellants.
    First District (1st Division)
    No. 1—91—0641
    Opinion filed May 4, 1992.

      Bell, Boyd & Lloyd, of Chicago (William L. Barr, Jr., and Erigid M. McGrath, of counsel), for appellants.
    Keith L. Young, of Chicago, for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

During 1980, plaintiff, Cynthia Riley, was pregnant and received prenatal care from defendant Dr. Prafulla Koneru. Unfortunately, on August 5, 1980, plaintiff delivered a stillborn fetus by cesarean section. Subsequently, plaintiff, on behalf of the stillborn fetus, brought a medical malpractice action against Koneru and the medical corporation with which Koneru was associated, North Suburban Clinic, Ltd. The jury returned a verdict against defendants for $400,000, and the trial judge denied defendants’ post-trial motions. Defendants appeal.

We affirm.

At trial, plaintiff’s case in chief was based primarily on the testimony of her expert, Dr. Jeffrey Ellis. Ellis, who is board certified in obstetrics and gynecology and who has taught both at Rush Medical College and Northwestern University, stated he was familiar with the standard of care expected of obstetricians treating pregnancies similar to plaintiff's in the metropolitan Chicago area in 1980. It was Ellis’ opinion that Koneru should have performed an ultrasound examination on July 21, 1980, to determine whether a condition known as hydramnios was present. Ellis also stated that Koneru should have hospitalized plaintiff when Koneru discovered, on August 1, 1980, that the fetus was lying horizontally in the womb. According to Ellis, Koneru also should have evaluated plaintiff when plaintiff complained of lack of fetal movement, cramping, and “spotting” on August 2, 1980. Finally, Ellis asserted that Koneru should have performed an immediate cesarean section on plaintiff. Ellis concluded Koneru’s failure to take such action deviated from the standard of care and resulted in the fetus’ death.

I

Defendants argue that plaintiff failed to establish the applicable standard of care because Ellis evaluated Koneru’s conduct against a higher standard of care than that imposed by Illinois law. Defendants point to several portions of Ellis’ testimony where he defined the standard of care to mean “the highest functioning level.” Specifically, defendants refer to the following testimony:

“The best medicine is practiced by following the standard of care. *** [T]he highest degree of knowledge then contributes to the standard of care.”

Ellis further stated that he was

“equating standard of care with what I consider to be good medical practice based on current information to optimize outcomes. *** My understanding is, of standard of care, is what Mr. Young [plaintiff’s attorney] and I described as good obstetrical practice based on scientific evidence to optimize outcome.”

Plaintiff responds that defendants have waived this argument by failing to properly object to Ellis’ testimony. Although plaintiff argues that defendants’ argument has been waived for failure to object, the record indicates that defendants did, indeed, object to Ellis’ testimony as lacking the applicable standard of care. As a result, we find these objections were sufficiently specific to preserve defendants’ argument for appeal.

Generally, in a medical negligence action, a plaintiff must establish by expert testimony the standard of care against which the defendant’s conduct should be measured. (Walski v. Tiesenga (1978), 72 Ill. 2d 249, 381 N.E.2d 279; Lebrecht v. Tuli (1985), 130 Ill. App. 3d 457, 473 N.E.2d 1322; Bartimus v. Paxton Community Hospital (1983), 120 Ill. App. 3d 1060, 458 N.E.2d 1072; Smith v. St. Therese Hospital (1982), 106 Ill. App. 3d 268, 435 N.E.2d 939.) The plaintiff must then show by affirmative evidence that the defendant’s conduct was negligent in light of that standard and that the negligence caused injury. Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 328 N.E.2d 301.

A plaintiff may rely upon the defendant’s and the defendant’s expert’s testimony in establishing the applicable standard of care. (Metz v. Fairbury Hospital (1983), 118 Ill. App. 3d 1093, 455 N.E.2d 1096.) The defendant is held to that degree of skill, knowledge, and care exercised by a good practitioner in the same or similar community. (Bartimus v. Paxton Community Hospital (1983), 120 Ill. App. 3d 1060; Hirn v. Edgewater Hospital (1980), 86 Ill. App. 3d 939, 408 N.E.2d 970.) However, if only one standard of care exists, the national standard and the community standard are to be considered the same. Hunter v. Sukkar (1982), 111 Ill. App. 3d 169, 443 N.E.2d 774.

An examination of Ellis’ entire testimony belies defendants’ claims. The portions of that testimony to which defendants refer were statements made by Ellis during defendants’ attorney’s cross-examination. Defendants’ attorney’s questioning was an attempt to have Ellis recharacterize his direct testimony in which he established the standard of care in the Chicago metropolitan area with regard to obstetrics. Ellis’ responses do not evince a retreat from Ellis’ opinion of the standard of care in 1980 or Koneru’s violation of that standard. The cross-examination appears to be designed to show Ellis’ misunderstanding of the meaning of the legal term “standard of care.” Ellis himself recognized the direction of defense attorney’s questioning when he responded “I am not an attorney and I don’t understand legal terms. And I’m testifying from the point of view of a physician who has an opinion.”

Defendants cite Smith v. Menet (1988), 175 Ill. App. 3d 714, 530 N.E.2d 277, appeal denied (1989), 124 Ill. 2d 562, 535 N.E.2d 921, in support of their argument regarding the standard of care. In Menet, the court addressed whether “good” medical care could be interpreted to mean better than average, thereby imposing a greater standard of care than the law requires. The court noted that Illinois courts previously have rejected the phrases “highest degree of skill” and “best possible care” because they set too high a standard. (Menet, 175 Ill. App. 3d at 718.) The court did note, however, that the word “good” has been used to define the standing of doctors with which the defendant doctor is to be compared. (Menet, 175 Ill. App. 3d at 718.) As plaintiff notes, Ellis did not restrict the standard of care to good care, but rather to the “standard practice.” Based on the foregoing, the circuit court did not err in allowing Ellis’ testimony.

II

Defendants next claim that damages for loss of society of a stillborn fetus are not available to its parents, arguing that this court should not follow Smith v. Mercy Hospital & Medical Center (1990), 203 Ill. App. 3d 465, 560 N.E.2d 1164.

Defendants’ arguments on this point are groundless in light of our supreme court’s holding in Seef v. Sutkus (1991), 145 Ill. 2d 336, 583 N.E.2d 510. There, the court noted that in Bullard v. Barnes (1984), 102 Ill. 2d 505, 468 N.E.2d 1228, it recognized that parents of a wrongfully killed minor child are entitled to a presumption of injury for the loss of the child’s society. Relying on that holding, the court found no valid reason or distinction to deny similar recovery for the death of a viable fetus. (Seef, 145 Ill. 2d at 338.) Moreover, the court specifically rejected defendants’ argument that Hunt v. Chettri (1987), 158 Ill. App. 3d 76, 510 N.E.2d 1324, appeal denied (1987), 116 Ill. 2d 555, 515 N.E.2d 108, correctly states Illinois law with regard to the loss of society of a stillborn fetus. Seef, 145 Ill. 2d at 341 (Miller, C.J., specially concurring).

Ill

Defendants finally contend that the jury’s damage award was excessive and that the circuit court erred by not granting its post-trial motion for remittitur.

Damages are a question of fact to be decided by the jury, and courts are reluctant to interfere with the jury’s exercise of discretion in this area. (Chambers v. Rush-Presbyterian-St. Luke’s Medical Center (1987), 155 Ill. App. 3d 458, 508 N.E.2d 426, appeal denied (1987), 116 Ill. 2d 549, 515 N.E.2d 102; Mileur v. Briggerman (1982), 110 Ill. App. 3d 721, 442 N.E.2d 1356.) A reviewing court will not disturb a jury’s award of damages unless it is obviously the result of passion or prejudice. (Shaheed v. Chicago Transit Authority (1985), 137 Ill. App. 3d 352, 484 N.E.2d 542.) Furthermore, an award is not excessive unless it falls outside the necessary limits of fair and reasonable compensation or it shocks the judicial conscience. (Shaheed, 137 Ill. App. 3d at 359.) A jury’s award will not be subject to remittitur where it falls within the flexible range of conclusions which can be reasonably supported by the facts. Guerrero v. City of Chicago (1983), 117 Ill. App. 3d 348, 453 N.E.2d 767.

The evidence presented at trial revealed that plaintiff and her husband had three children and enjoyed a satisfying family life, sharing in the activities of each child. Each parent expressed aspirations for the child they expected in 1980. Moreover, the jury properly was instructed not to base any damage awards on prejudice, passion or sympathy and was also instructed not to consider arguments as evidence. In light of this, no basis exists for this court to disturb the jury’s award.

For the foregoing reasons, the judgment of the circuit court is affirmed.

Affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.