author: JUSTICE SCARIANO

text:
    MARY ROBLES, as Adm’r of the Estate of Ralph Robles, Deceased, Plaintiff-Appellee and Cross-Appellant, v. CHICAGO TRANSIT AUTHORITY, Defendant-Appellant and Cross-Appellee.
    First District (2nd Division)
    No. 1—90—3217
    Opinion filed September 1, 1992.

      Flynn, Galvin & Ryan, of Chicago (Richard T. Ryan, of counsel), for appellant.
    Edward A. Cohen, of Chicago, for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court:

On December 17, 1980, the decedent, Ralph Robles, was fatally injured while exiting from the side doors at the rear of a Chicago Transit Authority (CTA or defendant) bus. The administrator of his estate, Mary Robles, brought a wrongful death and survival action against the CTA, but the original suit ended in a mistrial. In the subsequent trial, the court directed a verdict in favor of the CTA on the wrongful death and survival counts, which were premised on the doctrine of res ipsa loquitur; and the jury found for the CTA on the remaining counts as well. On appeal, this court held that the trial court “erred in directing verdicts for [the CTA] on the res ipsa [loquitur] counts” and remanded those counts for a new trial. Robles v. Chicago Transit Authority (1988), 173 Ill. App. 3d 46, 54, appeal denied (1988), 123 Ill. 2d 566 (Robles I).

On remand, seven eyewitnesses testified on behalf of Robles, and according to them, the bus pulled up to the bus stop, reached a complete stop and remained there for several minutes as passengers exited from the rear doors. Many of these witnesses testified that they were standing in line with the decedent in the aisle and in the rear door stairwell waiting to get off the bus. The gist of the testimony of all seven was that as the decedent was attempting to exit the rear doors of the bus, and while the doors were open, the bus, which was still at a stop, began to accelerate, causing the decedent to fall out of and under the bus.

The two witnesses who testified for the CTA gave a sharply conflicting view of the incident. Lloyd Foster, a dean at the high school near the bus stop, who was observing the loading of the bus, testified that the rear doors of the bus were never open while the bus was at the stop. However, Foster did not see the bus pull away. Eva Sanchez, who was sitting in the rear of the bus, testified that no one was standing in the rear door stairwell. According to her, after the bus pulled away from the stop, the decedent pulled the emergency knob, pushed open the rear doors and jumped off the moving bus because another boy had flashed a knife at him.

Earl Jones, who was the night foreman of the CTA’s 77th Street garage at the time of the accident, and who at the time of trial was the maintenance superintendent at the same garage, testified as to the operation of the bus’ rear door safety interlock system, and was also called by Robles as an adverse witness. His testimony was that if a bus is standing at a bus stop and someone wishes to exit from the rear doors, the driver of the bus may, by moving a lever from neutral to the rear position, unlock the doors so that they may be manually pushed open. After the person exits the bus, the rear doors, which are on springs, will automatically swing shut. According to Jones, the driver cannot accelerate until the lever is moved back into the neutral position. Jones further testified that there is an emergency handle with a knob on its end above the rear doors which when pulled will unlock those doors, thereby allowing the passenger to push them open. If the handle is pulled when the bus is moving, the driver will lose acceleration; but, once the handle is pushed back up, and the doors close, the driver can proceed. According to Jones’ testimony, “if the interlock system is working properly, [the bus] cannot accelerate with doors open, with rear doors open.”

The jury returned a verdict in favor of Robles on her wrongful death and survival claims based on a finding of negligence inferred through the doctrine of res ipsa loquitur; however, the jury also found the decedent to be 65% negligent. The circuit court denied the CTA’s post-trial motion for judgment notwithstanding the verdict and the CTA appeals, contending that the circuit court erred in denying its motion and that this court should enter judgment in its favor because the jury’s verdict contained inconsistent findings of fact. Alternatively, the CTA seeks a reversal and remand for a new trial on the grounds that the trial court improperly refused to submit an exhibit to the jury and that it impermissibly admitted the testimony of two expert witnesses into evidence. In her cross-appeal, Robles contends that the trial court erred in failing to award her prejudgment interest and that the lower interest rate applicable to judgments rendered against government entities is unconstitutional as it applies to the CTA. We affirm the judgment of the circuit coúrt in all respects.

Before considering the merits of this appeal, we must determine whether to grant the CTA’s motion to supplement the record. On July 24, 1991, Robles filed a motion to dismiss this appeal based on an allegedly incomplete record, which motion we denied on August 7, 1991. In its response to that motion, the CTA argued that the effect of the omissions on our consideration of the appeal would be easily rectified without any prejudice to the plaintiff by our allowing the record to be supplemented. However, the CTA did not file its motion to supplement the record until October 28, 1991, after the briefs were filed and just one week before oral argument. We took the motion and Robles’ objections thereto with the case. The supplemental record accompanying the CTA’s motion, consisting of certain reports of proceedings, was not bound or certified by the trial court, but it was certified by the court reporter. Robles opposes the motion on the ground that the supplement does not contain the trial judge’s certification of correctness or a stipulation of correctness by the parties. In addition, Robles argues that the supplement is insufficient since “several exhibits and sidebar conferences are still excluded along with crucial evidence, including the testimony of several witnesses.” Finally, Robles denies that the filing of the supplemental record at this time would not prejudice her.

“The burden is on the appellant to present a record of sufficient completeness in order to question the evidence pertaining to issues raised at trial. [Citation.]” (Casas v. Liberty Savings & Loan Association (1984), 128 Ill. App. 3d 68, 69.) Supreme Court Rule 329 (87 Ill. 2d R. 329) permits a reviewing court to correct “[m]aterial omissions or inaccuracies or improper authentication” of the record. Although Robles argues that the record is not certified, we note that “[certification is designed to assure the accuracy of the record, but it is not a jurisdictional requirement” (Ray v. Winter (1977), 67 Ill. 2d 296, 302-03), and we note also that she is not challenging the accuracy of the record. In Ray, the court, pursuant to Supreme Court Rule 329, treated the record as having been properly certified where no prejudice was alleged concerning inaccuracies or omissions in the verbatim report of proceedings. Although Robles is challenging the sufficiency of the supplemental record, she has failed to specify what portions are missing from the proffered supplement. At any rate, our review of the proposed supplement reveals that it is sufficiently complete to allow us to consider the merits of the arguments raised on appeal. As to Robles’ contention that she will be prejudiced by the timing of the supplemental filing, in People v. Span (1987), 156 Ill. App. 3d 1046, 1053, the court allowed the defendant’s motion to supplement the record even though it was presented after the briefs were filed because the State would not be unduly prejudiced, its brief having contained an alternative argument based on the merits of the issue. Similarly, here, we fail to apprehend how Robles would be prejudiced if the CTA is allowed to supplement the record in light of the fact that she has presented alternative arguments addressing the merits of all of the issues on appeal. We therefore grant the CTA’s motion to supplement the record.

I

A review of Robles I, in which we held that the trial court erred in directing a verdict for the CTA on Robles’ res ipsa loquitur counts, is essential to an understanding of this case. The court directed the verdict for the reasons expressed in the following colloquy with the plaintiff:

“ ‘THE COURT: Your argument is the interlock system was defective?
MR. COHEN: One of the arguments.
THE COURT: And that’s your basis for the res ipsa logic or intention [sic]?
MR. COHEN: But for the failure of the interlock system, the accident would not and could not have happened as the witnesses testified that it happened.
THE COURT: You have no evidence in this case to my knowledge, direct evidence of the defect. Mr. Ryan’s motion will be granted on relationship of counts two and four [sic].’
In denying plaintiff’s motion for reconsideration the court stated:
‘Any question, however, in this case, the test pertinent to this Court is [the] second element[,] if the party charged used proper care.
Other speculation^] we’ve no evidence that the interlock system was in no way defective to show the CTA was using improper care.
I have no reason to overturn my decision.’ ” Robles, 173 Ill. App. 3d at 51-52.

In Robles I, we explained that “[t]he doctrine of res ipsa loquitur allows the trier of fact to draw an inference of negligence on the part of defendants from circumstantial evidence” and that “[t]he inference of negligence by circumstantial evidence from otherwise inexplicable facts is particularly appropriate ‘when the direct evidence concerning the cause of injury is primarily within the knowledge and control of defendant.’ ” (Robles, 173 Ill. App. 3d at 52-53, quoting Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill. 2d 446, 449.) With respect to the procedural effect of the doctrine, we further explained:

“ ‘Like any other proof it may be explained or rebutted by the opposing party. *** [T]he inference, or presumption, does not simply vanish or disappear when contrary evidence appears, but remains to be considered with all the other evidence in the case and must be weighed by the jury against the direct evidence offered by the party charged.
Whether the doctrine [of res ipsa loquitur] applies in a given case is a question of law which must be decided by the court, but once this has been answered in the affirmative, it is for the trier of fact to weigh the evidence and determine whether the circumstantial evidence of negligence has been overcome by defendant’s proof.’ ” Robles, 173 Ill. App. 3d at 53, quoting Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill. 2d 446, 449-50.

Applying these principles to the facts of the case, we stated:

“Here, there was testimony that the bus accelerated while the rear doors were open, and according to the CTA’s garage foreman [Jones] that should have not occurred if the interlock system was functioning properly. Further, defendants drove and maintained the bus and thus had control over it; the fact that Robles was able to open the rear doors does not negate the control defendants had over the bus.” Robles, 173 Ill. App. 3d at 53, citing Douglas v. Board of Education (1984), 127 Ill. App. 3d 79.

Quoting Dyback v. Weber (1986), 114 Ill. 2d 232, 234, this court noted:

“ ‘A plaintiff need not conclusively prove all the elements of res ipsa loquitur in order to invoke the doctrine. He need only present evidence reasonably showing that [the requisite] elements exist.’ [Citation.]” Robles, 173 Ill. App. 3d at 53-54.

Because “there was sufficient evidence from which the jury could have inferred negligence,” we held that the trial court erred in directing the verdict and remanded the res ipsa loquitur counts for a new trial. Robles, 173 Ill. App. 3d at 54.

As pointed out by Robles, in the instant case, the doctrine of the law of the case “holds that when a judgment of a trial court is reversed and remanded, the trial court is bound by the reviewing court’s resolution of the questions presented to it and must proceed in a manner consistent with the reviewing court’s directions.” (People v. Webb (1982), 109 Ill. App. 3d 328, 330, citing National Boulevard Bank v. Department of Transportation, Division of Highways (1979), 78 Ill. App. 3d 168, 170.) “ ‘After a judgment is reversed and the cause is remanded the [trial court] can take only such further proceedings as conform to the judgment of the appellate [court]. If specific directions are given nothing can be done except carry out those directions. If no specific directions are given it must be determined from the nature of the case what further proceedings will be proper and not inconsistent with the opinion.’ ” (Webb, 109 Ill. App. 3d at 331, quoting Roggenbuck v. Breuhaus (1928), 330 Ill. 294, 297-98.) It is clear that in Robles I we determined, as a matter of law, that Robles sufficiently established the elements of res ipsa loquitur in order to get her case to the jury. Lynch v. Precision Machine Shop, Ltd. (1982), 93 Ill. 2d 266, 274.

Nevertheless, as discussed in Robles I, the doctrine merely creates a permissive inference of negligence which may be overcome by the defendant’s proof. (Metz, 32 Ill. 2d at 449-50; W. Keeton, Prosser & Keeton on Torts §40, at 257-58 (5th ed. 1984).) Despite the application of res ipsa loquitur to the case, the jury was free to find in favor of either side based upon the evidence adduced at trial. On remand, the jury was instructed that the plaintiff had the burden of proving:

“FIRST: THAT THE DECEDENT, RALPH ROBLES, WAS INJURED.
SECOND: THAT THE INJURY WAS RECEIVED AS A RESULT OF A MALFUNCTION OF THE REAR DOOR SAFETY INTERLOCK SYSTEM WHICH WAS UNDER THE CHICAGO TRANSIT AUTHORITY’S CONTROL.
THIRD: THAT IN THE NORMAL COURSE OF EVENTS, THE INJURY WOULD NOT HAVE OCCURRED IF THE CHICAGO TRANSIT AUTHORITY HAS [sic] USED THE HIGHEST DEGREE OF CARE CONSISTENT WITH THE TYPE OF VEHICLE USED AND THE PRACTICAL OPERATION OF ITS BUSINESS AS A COMMON CARRIER BY BUS WHILE THE REAR DOOR SAFETY INTERLOCK SYSTEM WAS UNDER THEIR [sic] CONTROL.”

In addition, the jury was instructed:

“IF YOU FIND THAT EACH OF THESE PROPOSITIONS HAS BEEN PROVED, THE LAW PERMITS YOU TO INFER FROM THEM THAT THE CHICAGO TRANSIT AUTHORITY WAS NEGLIGENT WITH RESPECT TO THE REAR DOOR SAFETY INTERLOCK SYSTEM WHILE IT WAS UNDER ITS CONTROL OR MANAGEMENT.
IF YOU DO DRAW SUCH AN INFERENCE, AND IF YOU FURTHER FIND THAT THE DECEDENT, RALPH ROBLES’ INJURY WAS PROXIMATELY CAUSED BY THAT NEGLIGENCE, YOUR VERDICT MUST BE FOR THE PLAINTIFF.”

However, the jury was also instructed:

“ON THE OTHER HAND, IF YOU FIND THAT ANY OF THESE PROPOSITIONS HAS NOT BEEN PROVED, OR IF YOU FIND THAT THE CHICAGO TRANSIT AUTHORITY USED THE HIGHEST DEGREE OF CARE CONSISTENT WITH THE TYPE OF VEHICLE USED AND THE PRACTICAL OPERATION OF ITS BUSINESS AS A COMMON CARRIER BY BUS FOR THE SAFETY OF RALPH ROBLES IN ITS CONTROL OF THE REAR DOOR SAFETY INTERLOCK SYSTEM, OR IF YOU FIND THAT THE DEFENDANT’S NEGLIGENCE, IF ANY, WAS NOT A PROXIMATE CAUSE OF THE DECEDENT, RALPH ROBLES’ INJURY, THEN YOUR VERDICT SHOULD BE FOR THE CHICAGO TRANSIT AUTHORITY.”

If the jury found for Robles, it was instructed to consider the CTA’s claim that the decedent was eontributorily negligent. As to that claim the jury was instructed that the defendant had the burden of proving the following:

“FIRST, THAT WHILE THE BUS WAS MOVING, THE DECEDENT, RALPH ROBLES, CARELESSLY PULLED THE EMERGENCY HANDLE, PUSHED OPEN THE REAR DOORS AND JUMPED OFF THE MOVING BUS.
SECOND, THAT RALPH ROBLES’ NEGLIGENCE WAS A PROXIMATE CAUSE OF HIS INJURY.”

If the jury found that the CTA proved each of these propositions, it was instructed to reduce Robles’ damages accordingly. Although the jury found in favor of Robles and against the CTA, it also found that 65% of the negligence was attributable to the decedent.

In the instant appeal, the CTA raises several arguments as to the application of res ipsa loquitur to this case. It first asserts that the jury’s finding of negligence against it pursuant to the doctrine of res ipsa loquitur is irreconcilably inconsistent with the jury’s finding of 65% contributory negligence on behalf of the decedent. The CTA further urges that the factual basis of the jury’s finding of contributory negligence that “ ‘while the bus was moving, decedent, Ralph Robles, carelessly pulled the emergency handle, pushed open the rear doors and jumped off the moving bus’ ” precludes a finding that the instrumentality of the decedent’s demise was within its control. The CTA further avers that the jury’s inconsistent verdict resulted from the circuit court’s improper “refusal to instruct the jury that it should not *** consider the allegations of specific acts of negligence by the [CTA] and its driver, Ernest Brown.” Accordingly, the CTA contends that the trial court erred in refusing to grant it judgment notwithstanding the verdict.

Judgments notwithstanding the verdict should be “entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510.) The doctrine of res ipsa loquitur “traditionally ha[s] required the plaintiff to demonstrate three elements: (1) that the occurrence is one that ordinarily would not happen in the absence of negligence; (2) that the defendant had exclusive control of the instrumentality that caused the event; and (3) that the occurrence was not caused by the plaintiff’s own negligent acts or omissions. [Citation.]” (Dyback v. Weber (1986), 114 Ill. 2d 232, 238.) The CTA cites Lynch v. Precision Machine Shop, Ltd. (1982), 93 Ill. 2d 266, and Politakis v. Inland Steel Co. (1983), 118 Ill. App. 3d 249, in support of the third element that the injury must not be due to any voluntary act or negligence on the part of the plaintiff. However, this element is no longer required in order to establish a prima facie case of negligence using res ipsa loquitur. As a result of the adoption of pure comparative negligence in Alvis v. Ribar (1981), 85 Ill. 2d 1, which ordered its application to all cases in which trial was commenced on or after June 8, 1981 (Alvis, 85 Ill. 2d at 28), the Illinois Supreme Court held in Dyback that “a plaintiff’s freedom from contributory negligence should no longer be a requirement in order to make out a prima facie case under the doctrine.” Dyback, 114 Ill. 2d at 239.

In Dyback, the court pointed out that several other comparative fault jurisdictions had eliminated proof of a plaintiff’s freedom from contributory negligence as an element of res ipsa loquitur. (Dyback, 114 Ill. 2d at 239.) Of the jurisdictions cited, the court noted that those having a modified form of comparative fault bar recovery on res ipsa loquitur claims “where the plaintiff is found more than 50% negligent.” (Dyback, 114 Ill. 2d at 239.) However, our supreme court adopted the reasoning of the New Mexico Supreme Court, the only jurisdiction cited which had a pure form of comparative negligence as Illinois did at the time, which stated that “ ‘[t]he mere existence of concurrent negligence does not preclude a particular finding of negligence of one or more tortfeasors through reliance on the res ipsa loquitur doctrine. Otherwise, “we would effectively erect a complete bar to recovery in cases where a plaintiff must rely on res ipsa loquitur to establish a prima facie case of negligence. *** Such a result would be in direct contravention of the concept of comparative negligence.” ’ Tipton v. Texaco, Inc. (1985), 103 N.M. 689, 697, 712 P.2d 1351, 1359, quoting Montgomery Elevator Co. v. Gordon (Colo. 1980), 619 P.2d 66, 70.” (Dyback, 114 Ill. 2d at 239-40; Gatlin v. Ruder (1990), 137 Ill. 2d 284, 295-96.) Accordingly, we agree with the circuit judge in the instant case, who explained the compatibility of the two doctrines as follows:

“Even where res ipsa loquitur is operative in a case, I believe that the doctrine of comparative fault still is operative in Illinois. I think, on the evidence that we have here, if the jury found, based upon the evidence it had before [it] that the CTA was accountable; then the jury could have considered the contributory fault of the decedent in allocating the degree of responsibility in terms of damages of the CTA. I don’t think a case that goes to the jury, res ipsa loquitur requires a finding by the jury that the plaintiff, the injured party, be free of any responsibility whatsoever.”

Therefore, it is clear that the decedent’s contributory negligence does not preclude Robles from pursuing and prevailing on her res ipsa loquitur claims; it is also evident that the CTA overlooks that the cases it relies upon to the contrary pertain to trials begun before June 8,1981, the cut-off date established in Alvis.

However, the CTA also claims that the factual basis of the jury’s finding of 65% contributory negligence, that “ ‘while the bus was moving, decedent, Ralph Robles, carelessly pulled the emergency handle, pushed open the rear doors and jumped off the moving bus,’ ” precludes her from meeting the second element of the res ipsa loquitur doctrine, which is control. The purpose of this requirement is to link the defendant with the probability that the accident would not ordinarily have occurred in the absence of negligence; that it was the defendant’s negligence which caused the accident. (W. Keeton, Prosser & Keeton on Torts §39, at 248-49 (5th ed. 1984).) As pointed out by the CTA, “[t]he injury must either be traced to a specific instrumentality or cause for which the defendant was responsible, or it must be shown that the [defendant] was responsible for all reasonably probable causes to which the accident could be attributed.” W. Keeton, Prosser & Keeton on Torts §39, at 248 (5th ed. 1984); see also Lynch v. Precision Machine Shop, Ltd. (1982), 93 Ill. 2d 266, 273, quoting Restatement (Second) of Torts §328D, Explanatory Notes, Comment g (1965).

However, “[w]here such other causes are in the first instance equally probable, there must be evidence which will permit the jury to eliminate them. *** [T]he evidence need not be conclusive, and only enough is required to permit a finding as to the greater probability.” (W. Keeton, Prosser & Keeton on Torts §39, at 249 (5th ed. 1984).) “This element usually is stated as meaning that the defendant must be in ‘exclusive control’ of the instrumentality which has caused the accident.” (W. Keeton, Prosser & Keeton on Torts §39, at 249 (5th ed. 1984).) However, “ ‘[c]ontrol’ if it is not to be pernicious and misleading, must be a very flexible term.” (W. Keeton, Prosser & Keeton on Torts §39, at 250 (5th ed. 1984); see also Lynch, 93 Ill. 2d at 274.)

“ ‘It is not, however, necessary to the inference that the defendant have such exclusive control; and exclusive control is merely one way of proving his responsibility. He may be responsible, and the inference may be drawn against him, where he shares the control with another ***. He may be responsible where he is under a duty to the plaintiff which he cannot delegate to another ***. He may be responsible where he is under a duty to control the conduct of a third person ***. *** The essential question becomes one of whether the probable cause is one which the defendant was under a duty to the plaintiff to anticipate or guard against.’ ” Lynch, 93 Ill. 2d at 273-74, quoting Restatement (Second) of Torts §328D, Explanatory Notes, Comment g (1965).

According to the CTA, Robles “was unable to present evidence as to the instrumentality which caused the death of her decedent. The only evidence presented with respect to the operation of the rear door of the Chicago Transit Authority bus in question was that the rear door interlock system of the bus was working both before and after the incident in question, that no defects were discovered when the bus was checked after the incident, and that the rear door interlock system was not ‘self-correcting’ (meaning that if a defect existed at the time of the incident, that defect could not correct itself).” (Emphasis in original.) Therefore, the CTA concludes that Robles “was unable to demonstrate that the defendant’s actions were responsible for all reasonable causes to which the accident could be attributed.”

Although “[liability cannot be predicated upon surmise or conjecture as to the cause of the injury” (Salinas v. Werton (1987), 161 Ill. App. 3d 510, 514, appeal denied (1988), 118 Ill. 2d 551), seven eyewitnesses testified on behalf of Robles that as the decedent attempted to exit the rear doors of the bus, while the doors were open, the bus, which had been stopped, began to accelerate causing him to fall. Robles also called, as an adverse witness, Earl Jones of the CTA, who testified that “if the interlock system is working properly, [the bus] cannot accelerate with the doors open, with rear doors open.” In contrast, the CTA called Eva Sanchez, who testified that the decedent pulled the emergency knob, opened the doors and jumped off the moving bus. The CTA also called Jones, who testified that on November 22, 1980, there was a general inspection of the bus including the safety interlock system and that the bus was returned to service. He testified further that on December 22, 1980, the rear doors of the bus “were checked and found okay.” A review of this evidence makes it clear that Robles’ theory of the case was that the rear door interlock system failed and that she presented enough evidence from which the jury could have inferred negligence if it believed the testimony that the bus started to move as the decedent was alighting, as we held in Robles I. (See Annot., Application of Res Ipsa Loquitur Doctrine to Accidents Incurred by Passenger While Boarding or Alighting from a Carrier, 93 A.L.R.3d §4[a], at 784-87 (1979), citing Moeller v. Market Street Ry. Co. (1938), 27 Cal. App. 2d 562, 81 P.2d 475, Moehle v. St. Louis Public Service Co. (Mo. Ct. App. 1950), 229 S.W.2d 285, and Paul v. Salt Lake City R.R. Co. (1905), 30 Utah 41, 83 P. 563. But see Annot., 93 A.L.R.3d §4[b], at 787-88 (1979), citing Holmes v. Birmingham Transit Co. (Ala. 1959), 116 So.2d 912, and Wyatt v. Pacific Electric Ry. Co. (1909), 156 Cal. 170, 103 P. 892.) “In many cases the inference to be drawn is a double one, that the accident was caused in a particular manner, and that the defendant’s conduct with reference to that cause was negligent.” W. Keeton, Prosser & Keeton on Torts §39, at 247 (5th ed. 1984).

In Moehle, the trial court was held not to have erroneously shifted the burden of proof to defendant where a res ipsa loquitur instruction told the jury that if it found certain facts to be true, including that the bus jerked while the passenger was alighting, it was sufficient to warrant a finding of negligence. (Moehle, 229 S.W.2d 290-91.) Similarly, here, if the jury believed the accounts of the seven eyewitnesses called on behalf of Robles and the testimony of Jones, there was sufficient evidence from which it could have inferred negligence. Counsel for the CTA acknowledged as much at oral argument stating, “Earl Jones testified *** that there’s no doubt if a bus starts up and accelerates, that there’s something wrong with the interlock. We’re negligent. A bus can’t operate like that. A bus cannot stop, start up, from a bus stop with the rear doors open and accelerate unless there’s a defect in the interlock system.”

Moreover, as we stated in Robles I, “the fact that Robles was able to open the rear doors does not negate the control defendants had over the bus.” (Robles, 173 Ill. App. 3d at 53.) In Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill. 2d 446, 450, the court explained that the requirement of exclusive control by the defendant “doesn’t mean actual physical control at the time of the accident, if the instrumentality or dangerous agency is one which it is defendant’s responsibility to maintain at all times and which responsibility cannot be delegated by consent, agreement or usage.” Clearly, in light of the high degree of care owed by the CTA to its passengers when they are exiting its buses (Crutchfield v. Yellow Cab Co. (1989), 189 Ill. App. 3d 1091, appeal denied (1990), 129 Ill. 2d 562, citing Katamay v. Chicago Transit Authority (1972), 53 Ill. 2d 27), it is the CTA’s responsibility to maintain the rear door interlock system on the bus.

While in hindsight the fact that the jury found the decedent 65% contributorily negligent seems inconsistent with the application of res ipsa loquitur, at the time we determined that the doctrine was applicable in Robles I and at the time the case was submitted to the jury after remand, the requirement was met that there be evidence to permit the jury to eliminate any other equally probable causes and that there be enough evidence to permit a finding as to the greater probability. (W. Keeton, Prosser & Keeton on Torts §39, at 249 (5th ed. 1984).) Furthermore, while the finding of 65% contributory negligence also appears to be inconsistent with the rationale behind the element of control, as our supreme court stated in Dyback, “ ‘[t]he analysis, from the viewpoint of comparative negligence, focuses on whether a “defendant’s inferred negligence was, more probably than not, a cause of the injury *** though [the] plaintiff’s [or third party’s] negligent acts or omissions may also have contributed to the injury” ’ Tipton v. Texaco, Inc. (1985), 103 N.M. 689, 697, 712 P.2d 1351, 1359, quoting Montgomery Elevator Co. v. Gordon (Colo. 1980), 619 P.2d 66, 70.” (Emphasis added.) Dyback, 114 Ill. 2d at 240.

For these reasons we hold that the factual basis for the jury’s finding the decedent 65% contributorily negligent is not inconsistent with the defendant’s control of the rear door interlock system; accordingly, we need not address the CTA’s argument that the alleged inconsistency would have been prevented if the trial court had given the CTA’s proffered instruction cautioning the jury not to consider allegations of specific negligence on the part of the CTA or its bus driver. Furthermore, the judge sustained many of the CTA’s objections to such testimony. In any event, we fail to perceive how the CTA was prejudiced by testimony, which it claimed at trial related to “what the bus driver did after this incident was over.” Finally, we note that “the introduction of some evidence which tends to show specific acts of negligence on the part of the defendant, but does not purport to furnish a full and complete explanation of the occurrence *** does not deprive the plaintiff of the benefit of res ipsa loquitur.” W. Keeton, Prosser & Keeton on Torts §40, at 260 (5th ed. 1984); Kolakowski v. Voris (1980), 83 Ill. 2d 388, 397-98; Daly v. Carmean (1991), 210 Ill. App. 3d 19, 27, appeal denied (1991), 141 Ill. 2d 538.

II

The CTA also contends that the trial court erred in refusing to grant the jury’s request to see the computer printout of the repair and maintenance records of the bus. The CTA claims that it was prejudiced by this refusal because the jury was unable to “confirm” that in 1980 there were six general inspections of the bus, as well as that the door emergency control was repaired on November 7, 1980, inspected on November 22, 1980, and checked on December 22, 1980. Although Robles claims that the exhibit was never admitted into evidence and that, therefore, there was no error, it appears from the supplemental record that it was admitted into evidence, but not submitted to the jury. “The decision to submit exhibits to the jury is within the sound discretion of the trial court, whose decision will not be reversed absent an abuse of discretion. [Citation.]” (People v. Herron (1991), 218 Ill. App. 3d 561, 575.) We are unable to conclude that the CTA was prejudiced by the court’s refusal to submit the exhibit to the jury inasmuch as Earl Jones, maintenance superintendent at the CTA’s 77th Street garage, who was the night foreman at the time of the accident, testified at length as to these repairs. Although there was some question as to the sufficiency of the foundation for the computer record, the circuit judge did not submit the record to the jury because “it was not clear to [him] how the jury would interpret the records in view of the fact that a multitude of codes had been used.” According to the judge, the records would have created “a hopeless task” for the jury. Accordingly, we hold that the circuit judge did not abuse his discretion in refusing to allow the exhibit to go to the jury.

III

Finally, the CTA claims that the trial court improperly permitted Robles to present expert testimony in rebuttal to its case. First, the CTA objects to the testimony of Roland Ruhl, which it claims was reconstruction testimony used to rebut the testimony of eyewitness Eva Sanchez. Second, the CTA objects to the testimony of Dror Kopemik, which it claims was “rank speculation,” and to his use of a demonstrative exhibit which it claims has a “built-in defect.”

“Whether expert testimony should be introduced is a matter within the discretion of the trial judge. [Citation.]” (Misch v. Meadows Mennonite Home (1983), 114 Ill. App. 3d 792, 800.) “Rebuttal evidence is that which tends to explain, repel, contradict, counteract or disprove facts already placed in evidence by an adverse party.” (Hall v. Northwestern University Medical Clinics (1987), 152 Ill. App. 3d 716, 721, appeal denied (1987), 115 Ill. 2d 541.) “The decision to permit rebuttal testimony rests largely in the discretion of the trial court [citations], and that decision will not be reversed on appeal unless the court has abused its discretion resulting in prejudice to the defendant [citations].” People v. Williams (1991), 209 Ill. App. 3d 709, 723, appeal denied (1991), 139 Ill. 2d 604.

As to the testimony of Ruhl, “reconstruction testimony may not be used as a substitute for eyewitness testimony where such is available. Whether it may be used in addition to eyewitness testimony is determined by whether it is necessary to rely on knowledge and application of principles of science beyond the ken of the average juror.” (Plank v. Holman (1970), 46 Ill. 2d 465, 470-71.) “[T]here appears to be a certain amount of confusion as to when reconstruction testimony may be received when eyewitness testimony is available.” (M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §703.2, at 533 (5th ed. 1990); Augenstein v. Pulley (1989), 191 Ill. App. 3d 664, 678, appeal denied sub nom. Augenstein v. Steinmetz (1990), 131 Ill. 2d 557.) The “lack of clarity in the approach of the decisions [on this issue] leaves the matter very much in the discretion of the trial court.” (M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §703.2, at 533 (5th ed. 1990).) However, the court in Augenstein, through its comprehensive examination of the authorities on this issue, gleaned the following two requirements for the use of expert reconstruction testimony: (1) that the expert be appropriately qualified, and (2) that the jury be assisted by testimony regarding knowledge beyond that which they would ordinarily have. (Augenstein, 191 Ill. App. 3d at 679.) According to the court, the presence or absence of eyewitness testimony is only one of the criteria used to determine admissibility and it obviously applies only to the second prerequisite, dealing with admissibility. Augenstein, 191 Ill. App. 3d at 681.

In Augenstein, a mechanical engineer testified that in his opinion the collision occurred in the northbound lane of traffic. (Augenstein, 191 Ill. App. 3d at 672.) Although the court acknowledged the preference for eyewitness testimony, particularly in automobile accident cases (Peterson v. Lou Bachrodt Chevrolet Co. (1979), 76 Ill. 2d 353), it held that the trial court did not err in admitting the expert testimony, despite the availability of eyewitness testimony to the accident, since the expert was properly qualified and his testimony could be of assistance to the jury. (Augenstein, 191 Ill. App. 3d at 679-81; see also Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co. (1971), 49 Ill. 2d 118.) Similarly, here, there is no dispute as to Ruhl’s qualifications. Although his testimony was used to contradict Eva Sanchez’ account of the accident, we believe his testimony was of assistance to the jury. Ruhl performed time, distance and velocity calculations based on his review of a plat of the accident scene, the police report, the bus specifications, a study of the acceleration of 24 CTA buses, and the testimony of the witnesses to the accident. For example, Ruhl testified as to the force that would be applied to the body of a person exiting the bus. Although we are cognizant of the danger that an expert may unduly impress the jury (Augenstein, 191 Ill. App. 3d at 675, citing Burns, Evidence: The Role of Reconstruction Experts in Witnessed Accident Litigation, 22 DePaul L. Rev. 7, 14 (1972)), in this case, we are persuaded by the view expressed by the trial judge in the Augenstein case:

“[N]ow whether the jury wants to believe him or not is up to them. They have the other version before them. *** The mass difference in these two vehicles travelling at the same speed in a curve and the principles of physics acting upon these vehicles to reconstruct the point of impact relative to the gouge marks and where they ended up, it is necessary that the jury have somebody to explain these principles to them.” (Augenstein, 191 Ill. App. 3d at 672.)

Therefore, we hold that the trial court did not abuse its discretion in permitting Ruhl to testify.

As to Kopernik’s testimony, the CTA claims that it was not rebuttal testimony and that his opinion was speculative. Ralph Ma-lee testified on behalf of the CTA that there are only two ways in which the rear doors can be opened: (1) if the driver of the bus moves a handle which unlocks the doors thereby allowing the passenger to push them open; or (2) if the passenger pulls on an emergency knob located above the rear doors which unlocks them thereby allowing the passenger to push them open. According to Malee, when the system is activated in either of these two ways, a push-button microswitch is triggered which turns on the light and transmits a signal to a valve which prevents the bus from accelerating. Robles argues that her witness testified as to a third way in which the system could be activated in rebuttal to Malec’s testimony: while the doors are unlocked and open, the driver could put the handle back in the neutral position which the driver thinks locks the doors, but the interlock system could be on or off depending on the adjustment of the microswitch. We believe this was proper rebuttal testimony.

The CTA also objects to the following opinion expressed by Kopernik as to the possible intermittent operation of the system, on the ground that it is speculative.

“Q. Okay. Thank you. Now based upon your investigation in this case, including the inspection of the bus which you personally performed, in your expertise in the field as an engineer and your review of the manual that you spoke about and the other documents that you previously testified about, do you have an opinion based on a reasonable degree of engineering certainty as to whether the particular interlock system on this bus could be out of adjustment so that it works intermittently?
MR. RYAN: Objection, Your Honor.
THE COURT: You may answer.
THE WITNESS: Yes.
BY MR. COHEN:
Q. And what is that opinion, sir?
A. That it could.”

As the CTA points out, “a witness may not guess or state an opinion which is based merely on speculation or conjecture. [Citations.]” (Loitz v. Remington Arms Co. (1988), 177 Ill. App. 3d 1034, 1051, aff’d in part & reversed in part (1990), 138 Ill. 2d 404.) In Schultz v. Hennessy Industries, Inc. (1991), 222 Ill. App. 3d 532, the plaintiff’s expert testified that the “design and manufacture of the subject switch raised the possibility that a foreign object or substance could enter the switch and short out the circuit.” However, the expert stated that “his examination of the switch revealed no physical evidence to suggest that the circuit had been shorted out at the time of the accident, and that he did not observe any foreign object or moisture in the switch, or any visible markings or residue indicating that some foreign object or substance had previously been inside the switch.” In addition, he testified that “there was no evidence that any of the component parts of the switch had become loose or that loose parts caused the subject car to start,” or that “the alligator clips attached to the solenoid had crossed to cause a short circuit.” The expert “could not testify that the circuit had been shorted out and stated that such an opinion would be based on speculation.” (Schultz, 222 Ill. App. 3d at 541-42.) The court found it evident that “all of the expert testimony presented by plaintiff as to the cause of the accident and the dangerous condition of the remote starter switch was based purely on speculation and conjecture.” (Schultz, 222 Ill. App. 3d at 542.) The court stated that “[e]xpert testimony based on speculation, guess, or conjecture is insufficient to avoid summary judgment” and found that the “mere possibility [of] a short circuit *** is insufficient to establish a causal relationship between defendant’s alleged negligence and plaintiff’s injuries.” Schultz, 222 Ill. App. 3d at 542-43.

Similarly, here, Kopernick admitted on cross-examination that a “misadjusted” switch would need to be repaired and that the system was working properly at the time of his inspection. However, although he also admitted that in prior deposition testimony he stated that without the testimony of Robles’ witnesses, there was no basis for his statement that there was a “misadjusted” switch, that testimony distinguishes this case from Hennessy. In any event, even if the admission of this testimony did constitute error, it would not require reversal since it did not substantially prejudice the CTA. Yassin v. Certified Grocers of Illinois, Inc. (1986), 150 Ill. App. 3d 1052, 1064, appeal denied (1987), 114 Ill. 2d 559.

Finally, the CTA objects to Kopernik’s use of a demonstrative exhibit of the interlock system. However, the CTA has not included the exhibit in the record on appeal and in its absence, we must presume that the trial court’s ruling on this issue was correct. People v. Quinn (1988), 173 Ill. App. 3d 597, 606, appeal denied (1988), 123 Ill. 2d 564; Robles, 173 Ill. App. 3d at 54.

IV

Turning to issues raised in the cross-appeal, Robles contends that the trial court erred in failing to award her prejudgment interest and that the lower interest rate applicable to judgments entered against government entities is unconstitutional as it applies to the CTA.

As to Robles’ first contention, the rule is well established in Illinois that prejudgment interest is not allowed unless authorized by statute. (Lakefront Realty Corp. v. Lorenz (1960), 19 Ill. 2d 415, 423.) “Section 2 of the Interest Act does not authorize prejudgment interest in wrongful death or other tort cases. (See Ill. Rev. Stat. 1977, ch. 74, par. 2.)” (Gardner v. Geraghty (1981), 98 Ill. App. 3d 10, 14; Ill. Rev. Stat. 1989, ch. 17, par. 6402.) However, Robles argues that the language of the Wrongful Death Act (Ill. Rev. Stat. 1979, ch. 70, par. 1 et seq.) contemplates the award of prejudgment interest. The Act provides in part:

“[I]n every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death ***.” (Ill. Rev. Stat. 1979, ch. 70, par. 2.)

In support of her position, Robles cites In re Air Crash Disaster Near Chicago, Illinois on May 25, 1979 (N.D. Ill. 1979), 480 F. Supp. 1280, 1286, aff’d (7th Cir. 1981), 644 F.2d 633, in which the court concluded that prejudgment interest was “an essential element of ‘fair and just compensation’ under the Illinois wrongful death statute.” However, the Federal district court’s interpretation of the Illinois Wrongful Death Act is not binding on this court. Russ v. Pension Consultants Co. (1989), 182 Ill. App. 3d 769, 776.

In Johnson v. Human Rights Comm’n (1988), 173 Ill. App. 3d 564, 567, appeal denied (1988), 123 Ill. 2d 559, the court declined to award prejudgment interest under section 8 — 108(J) of the Illinois Human Rights Act (Ill. Rev. Stat. 1985, ch. 68, par. 8 — 108(J)), which provided that the Commission should “[t]ake such action as may be necessary to make the individual complainant whole.” The court reasoned, “We do not believe that the right to prejudgment interest can be implied from a statutory provision. To the contrary, we believe that such a remedy must be clearly and specifically provided for by the legislature.” (Johnson, 173 Ill. App. 3d at 567.) We agree. Although Robles has raised several public policy reasons in support of her position, the debate over the award of prejudgment interest under the Wrongful Death Act more properly belongs in the chambers of the General Assembly since the language of the Act does not clearly provide for it. Therefore, the circuit court was correct in declining to award prejudgment interest under the Illinois Wrongful Death Act.

V

Robles also contends that section 2 — 1303 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1303), which provides for a lower interest rate for judgments rendered against government debtors than is applied to judgments rendered against private sector debtors, violates her right to equal protection of the law under the United States and Illinois Constitutions. (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2.) The parties agree that the rational basis test applies in determining the constitutionality of the classification since neither a fundamental right nor a suspect class is involved. (Harrington v. City of Chicago (1983), 116 Ill. App. 3d 137, 139.) “Under that test, the court determines whether the statutory classification is rationally related to a legitimate governmental purpose.” (Harrington, 116 Ill. App. 3d at 139.) “In making this determination, it is constitutionally irrelevant what reasons in fact served as the basis for the legislation.” Harrington, 116 Ill. App. 3d at 139.

In Harrington, the court upheld the constitutionality of section 2 — 1303 under the rational basis test as it applied to the City of Chicago since the “legislature may well have enacted the disparate interest rates in order to somewhat lessen the burden on taxpayers who ultimately pay for judgments rendered against governmental entities.” (Harrington, 116 Ill. App. 3d at 139.) However, Robles argues that Harrington is distinguishable because the CTA, unlike the City of Chicago, does not have the power to levy taxes. (See Ill. Rev. Stat. 1989, ch. 111⅔, par. 318.) We note, however, that the CTA does receive tax money. Pursuant to the Metropolitan Transit Authority Act (Ill. Rev. Stat. 1989, ch. 111⅔, par. 301 et seq.), the CTA is authorized to receive funds and grants from the Regional Transportation Authority (RTA) (Ill. Rev. Stat. 1989, ch. 111⅔, pars. 309a(b), (c)), which, pursuant to the Regional Transportation Authority Act (Ill. Rev. Stat. 1989, ch. 111⅔, par. 701.01 et seq.), is authorized to allocate a percentage of the taxes it collects within the City of Chicago to the CTA (Ill. Rev. Stat. 1989, ch. 111⅔, par. 704.01(d)). The RTA is also authorized to receive local, State and Federal funds. (Ill. Rev. Stat. 1989, ch. 111⅔, par. 704.02.) In any event, if this court can discern any reasonable basis for the classification the statute will be upheld. (Harrington, 116 Ill. App. 3d 137.) Clearly, the legislature may well have enacted the favorable rate in order to lessen the burden borne not only by “taxpayers who ultimately pay for judgments rendered against” the CTA. (Harrington, 116 Ill. App. 3d at 139), but also by those who depend upon a highly subsidized public transportation system. (See Bilyk v. Chicago Transit Authority (1988), 125 Ill. 2d 230, 238.) We hold, therefore, that section 2 — 1303 is not unconstitutional as it applies to the CTA.

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

Affirmed.

DiVITO and McCORMICK, JJ., concur.

      The trial court used the term “contributory negligence” throughout the case; in order to prevent confusion, we retain its use in this opinion in all of the instances in which the trial court employed it.

      At oral argument before this court, the CTA also argued that res ipsa loquitur did not apply because there was direct evidence of negligence. However, because the CTA did not argue this point in its brief, we need not consider it here. 134 Ill. 2d R. 341(e)(7).

      Although section 2 — 1116 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1116) replaced the pure form of comparative negligence adopted in Alvis with a modified form, section 2 — 1116 applies only to causes of action accruing on or after November 25, 1986 (Ill. Rev. Stat. 1987, ch. 34, par. 429.7); therefore, this is a pure comparative negligence case.


source: Caselaw Access Project

author: JUSTICE DiVITO

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHNNY ALMODOVAR, Defendant-Appellant.
    First District (2nd Division)
    Nos. 1—89—2586, 1—91—1659 cons.
    Opinion filed September 1, 1992.

      Hinshaw & Culbertson, of Chicago (Thomas M. Burnham, Gerald Ha-berkorn, and Robert C. Heist, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and William D. Carroll, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DiVITO

delivered the opinion of the court:

Following a bench trial, defendant Johnny Almodovar was found guilty of murder, armed robbery, and armed violence; he was subsequently sentenced to 60 years’ imprisonment for murder. Defendant sought post-conviction relief, arguing that his trial counsel provided ineffective assistance. The circuit court denied defendant’s petition. Defendant appeals from that denial and from his conviction, contending that (1) the circuit court erred in failing to hold an evidentiary hearing on his petition for post-conviction relief where he alleged that his trial counsel was ineffective for failing to move to quash his arrest and to suppress his statement following his arrest; (2) the circuit court erred in denying his petition for post-conviction relief where he alleged that his trial counsel suffered from a conflict of interest; (3) he was not proved guilty of murder beyond a reasonable doubt; and (4) the circuit court erred in denying his motion to strike the State’s affidavit supporting its motion to dismiss his post-conviction petition.

On October 14, 1988, defendant was arrested for and later charged with the murder of Maximino Pedraza. At trial, the State presented the testimony of several witnesses, none of whom directly linked defendant with the crime.

Maria Levia testified that on October 11, 1988, at approximately 12:45 in the afternoon, while in her home, she noticed three men coming out of a yard and walking towards the alley. The man walking in front was wearing a grey sweat shirt; just behind him and to his right walked a man in a navy blue sweat shirt. The man in the navy blue sweat shirt had his left hand on the neck of the first man and held his right hand next to his stomach, pointing it at the first man. Another man walked directly behind the man in the navy sweat shirt. Shortly after losing sight of the three men, Levia heard a gunshot. When she left her house and walked into the alley, Levia saw only the man in the grey sweat shirt, lying facedown in the alley covered with blood.

Responding to a battery call, Chicago police officer Luis Montalvo found the body of the man in the grey sweat shirt lying in the alley; another officer at the scene, Jose Capetillo, identified the dead man as Maximino Pedraza. Though Montalvo recovered a spent .25 caliber shell, he found no weapons in the area, nor did he find any money, jewelry, or keys on Pedraza. Officer Anthony Bongiorno, also at the scene, located Pedraza’s Mercedes-Benz near the scene and requested that the evidence technicians lift fingerprints from the car.

According to the testimony of Luz Castro, a “friend” of Pedraza, defendant and Pedraza were “associates.” On October 10, 1988, Luz’s boyfriend Lorenzo Hill drove to her house in Pedraza’s Mercedes-Benz. There, Hill asked Luz to return the keys to the Mercedes to Pe-draza and to tell him that Hill did not want the car; Hill further asked Luz to tell Pedraza not to bring the cocaine that Hill had agreed to purchase. That day, Luz gave Hill’s message to Pedraza; Pedraza, however, asked her not to tell Hill that she had relayed his message because he already had the cocaine.

Luz Castro’s sister Eva Castro testified that Pedraza arrived at her house on October 10, 1988, and invited her to McDonald’s. Before driving to McDonald’s, they stopped at Hill’s house, where Pedraza had a short conversation with Hill and handed him a small paper bag. Eva, still in the car, was unable to see the contents of the bag; however, she knew that Pedraza was a drug dealer. Following dinner at McDonald’s, Eva returned home at 9 or 10 that evening. Pedraza then left, telling Eva that he would meet her the next day after he met with Hill and picked up his car.

Assistant State’s Attorney Joanne Roddy testified that on October 15, 1988, at approximately 4 a.m., she met with defendant at the police station. After reviewing the police reports, she spoke to defendant and advised him of his rights and of her position with the State’s Attorney’s office. Thereafter, defendant voluntarily told her his version of the shooting. Following the brief conversation with defendant, Roddy asked him if he would agree to give a statement to a court reporter; defendant agreed, and later that morning a court reporter took defendant’s statement. Thereafter, defendant was given the opportunity to read, review, and correct his transcribed statement.

At trial, the statement given by defendant while at the police station was entered into evidence. According to his statement, defendant was a friend of Hill; though he did not know Pedraza, defendant had “heard about him.” On October 10, 1988, Hill told defendant that he had purchased drugs from Pedraza and that he had yet to pay for them. Hill then told defendant that Pedraza was going to pick up the money owed to him the following day.

That next day, defendant and his friend Tamany Snow waited behind Hill’s house in order to rob Pedraza. As defendant kept a lookout for Pedraza’s car, Pedraza drove up in his Mercedes and exited it. Snow then ran up to Pedraza and grabbed him, saying “Give me your money”; in response, Pedraza stated, “It’s in my pocket.” Walking Pedraza to the back of the house, Snow then grabbed both the money and Pedraza’s bracelet. Though defendant heard a shot, he could not see Snow shoot Pedraza because Snow had walked Pedraza behind a garage. When defendant asked Snow why he had shot Pedraza, Snow explained that Hill had told him that “if he was going to rob [Pe-draza], that he had to kill him.” Running to the front of the house, Snow was about to “jump” into Pedraza’s Mercedes when defendant told him, “Don’t jump in the car, just throw the keys in there.” Thereafter, the two men ran towards the “neighborhood,” split the money taken (about $130), and “went about [their] business.” Later, defendant told another man to throw away the gun, a black .25 caliber automatic.

Following stipulations that provided the autopsy report and the fingerprint results from the Mercedes, the State rested. The defense did not present any witnesses. Thereafter, the circuit court found defendant guilty of murder, armed violence, and armed robbery and sentenced him in absentia to 60 years’ imprisonment for murder.

Following his conviction, defendant appealed; his appeal, however, was dismissed for want of prosecution. After changing counsel, defendant filed a motion to reinstate his appeal, which was granted by this court on September 4,1990.

On November 7, 1990, defendant filed his petition for post-conviction relief, arguing that he was denied effective assistance of counsel. Specifically, defendant maintained that his trial counsel had failed to file motions to quash his arrest or to suppress the statement he gave to police. Defendant argued that this failure rose to the level of ineffective assistance of counsel because his statement, the only evidence linking him to the shooting, was taken after he was arrested without probable cause. Defendant further argued that he was denied effective assistance of counsel due to his attorney’s conflict of interest; specifically, defendant maintained that his attorney failed to inform either him or the court that the attorney was being investigated for, charged with, and indicted on three counts of Federal tax fraud during the time he represented defendant.

Following arguments of counsel, the circuit court denied defendant’s petition, finding that it had “the testimony of the officer here concerning the circumstances under which [defendant] was arrested,” and that the arrest was a result of an ongoing investigation by the police and thus was made with probable cause.

I

Initially, defendant contends that the circuit court erred in denying his petition for post-conviction relief without an evidentiary hearing. Specifically, he maintains that neither the trial testimony nor the police reports established probable cause for his warrantless arrest. Contending that his statement to the police was a result of an illegal arrest, defendant asserts that his trial attorney was ineffective in failing to move to quash the arrest and suppress the subsequent statement given to the police. The State responds that the circuit court was within its discretion in denying defendant’s post-conviction petition because defendant failed to prove a substantial deprivation of his constitutional rights. See People v. Griffin (1985), 109 Ill. 2d 293, 303, 487 N.E.2d 599.

As the State correctly asserts, a defendant is not entitled to a post-conviction evidentiary hearing unless he has made a substantial showing of a violation of a constitutional right and his allegations are supported by the record or by affidavits. (People v. Del Vecchio (1989), 129 Ill. 2d 265, 279, 544 N.E.2d 312; People v. Hickox (1992), 229 Ill. App. 3d 454, 593 N.E.2d 736.) A court’s dismissal of a defendant’s petition will thus not be disturbed unless that determination was clearly erroneous. People v. Downey (1990), 198 Ill. App. 3d 704, 712-13, 556 N.E.2d 300; People v. Hanrahan (1985), 132 Ill. App. 3d 640, 641, 478 N.E.2d 31.

In the instant case, defendant predicated his petition on denial of effective assistance of counsel, asserting that his trial counsel should have moved to quash his arrest and suppress his statement to police; he supported his petition with affidavits and with police reports. Defendant therefore was required to show that his counsel’s conduct fell below an objective standard of reasonableness and that such conduct prejudiced defendant. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) Thus, in order to evaluate the circuit court’s dismissal of defendant’s petition, we must look to whether defendant would have succeeded on motions to quash and suppress, in other words, whether his arrest or detention was illegal, whether his confession was a fruit of that illegal arrest, and further, whether he was prejudiced by his attorney’s failure to present these issues in motions to quash and suppress. See Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248.

An arrest without a warrant is valid only if it is supported by probable cause. (People v. Montgomery (1986), 112 Ill. 2d 517, 525, 494 N.E.2d 475; People v. Tisler (1984), 103 Ill. 2d 226, 236-37, 469 N.E.2d 147.) Probable cause exists when the totality of the facts and circumstances known to the officers is such that a reasonably prudent person would believe that the suspect is committing or has committed a crime. (Montgomery, 112 Ill. 2d at 525.) Whether probable cause is present is governed not by technical legal rules but by commonsense considerations which are factual and practical. Tisler, 103 Ill. 2d at 236.

In the instant case, the circuit court denied defendant’s petition, finding that defendant’s arrest was proper because “the police don’t have to have absolute probable cause in the investigatory phase of investigating crimes, and the officers in this instance were investigating.” Nevertheless, defendant asserts that the police officers effectuated an illegal arrest because, though they were indeed “investigating” Pedraza’s murder, they were not justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warranted their detention of defendant.

For support, defendant points to the police reports, attached to his post-conviction petition, which state:

“While searching for [Lorenzo Hill] a male white hispanic approached the reporting detective and informed him that word on the street revealed that [defendant] was involved in the shooting and that he could be located at his sisters [sic] residence ***. Proceeding to this location [defendant] was observed and was asked to accompany the Officers to the [14th] District for additional investigation relative to this Homicide. [Defendant] was advised of his Miranda Warnings and stated that he understood these Warnings and agreed to accompanied [sic] the Officers.”

The police reports further indicated that, after being readvised of his rights, defendant told the police essentially the same story that he subsequently told Assistant State’s Attorney Roddy.

Defendant thus argues that an anonymous tip about “word on the street” is insufficient to constitute probable cause for his arrest. Likewise, he further asserts that the police officers were not merely “investigating,” but rather, arrested him, put him in handcuffs, and then brought him to the station.

Defendant relies upon People v. Hollins (1988), 169 Ill. App. 3d 304, 523 N.E.2d 1309, where the court found that a “tip” to police given by an unknown person was not sufficient to constitute probable cause. The Hollins court instead held that the officer’s information that “someone” told him that the defendant “had been involved” in the crime merely established a “suspicion” and did not establish probable cause to arrest. Hollins, 169 Ill. App. 3d at 308.

Like the defendant in Hollins, defendant in the instant case was arrested by police after an anonymous tip about the “word on the street.” Here, according to the police reports, no other information linked defendant with Pedraza’s murder. Thus, it appears from the record on appeal that defendant may have been arrested without probable cause. Without the testimony of the arresting officers, however, it is difficult to determine whether they knew the tipster, and if they did, found him to be a reliable informant or whether they had additional information implicating defendant in Pedraza’s murder. Contrary to the belief of the circuit court, the record is devoid of information concerning defendant’s arrest other than the arrest reports. The circuit court was mistaken when it stated, in denying defendant’s petition, that it had “the testimony of the officer here concerning the circumstances under which [defendant] was arrested”; no such testimony was presented.

Furthermore, though the police were indeed “investigating,” a review of the record persuades us that the police officers may not have had “knowledge of facts which would lead a reasonable man to believe that a crime has occurred and that it has been committed by the defendant.” (See People v. Gacho (1988), 122 Ill. 2d 221, 234-35, 522 N.E.2d 1146.) Rather, the police officers’ information from an unidentified man that “word on the street” was that defendant “was involved” in the shooting was hardly information sufficient to constitute probable cause for arrest.

If defendant was under arrest when he was brought to the police station and if that arrest was without probable cause, the question then arises whether defendant’s subsequent statement to the police was obtained as a direct result of the invalid arrest. (See Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 96 S. Ct. 2254.) The record reflects that defendant was “arrested” at 10:45 p.m. Though defendant spoke with Assistant State’s Attorney Roddy at 4 a.m. the next day, he also spoke to the police officers sometime after his arrest but before Roddy arrived at the station. The record is unclear, however, as to what time between 10:45 p.m. and 3 a.m. defendant spoke with the police officers. Accordingly, based on the record, we cannot determine whether defendant’s statement to the police was sufficiently attenuated from his arrest; an evidentiary hearing is thus necessary to determine the voluntariness of defendant’s statements. See, e.g., People v. Foskey (1990), 136 Ill. 2d 66, 85, 554 N.E.2d 192.

Nevertheless, the State asserts that, even if defendant was arrested without probable cause, defense counsel’s decision not to file a motion to suppress was a matter of trial tactics and thus not a proper basis for asserting ineffective assistance of counsel. None of the State’s cases, however, are apposite. See People v. Gierbolini (1984), 128 Ill. App. 3d 794, 797, 471 N.E.2d 625 (holding the defendant’s contention that had his attorney filed a motion to suppress based on unlawful entry into the defendant’s apartment, the prosecution would have been prevented from introducing any evidence of possession of controlled substances to be “wholly speculative”); People v. Bryant (1989), 128 Ill. 2d 448, 458-59, 539 N.E.2d 1221 (holding that the defense counsel’s failure to file motions to quash the arrest and suppress the statement of the defendant was not ineffective assistance of counsel where the public defender explained that her decision was strategic and that the defendant had assured her that he had made no statement to police).

More analogous to the instant case is the fact situation presented in Downey (198 Ill. App. 3d 704, 556 N.E.2d 300), where the court determined that the defense counsel’s failure to challenge the defendant’s arrest could have supported the defendant’s petition for post-conviction relief and thus the circuit court had erred in dismissing that petition without an evidentiary hearing. (Downey, 198 Ill. App. 3d at 716-17.) The Downey court determined that there was a probability that motions to quash the arrest and to suppress subsequent statements to the police would have been successful had they been filed, and if successful, the defendant might not have been convicted. Accordingly, the court reversed the circuit court’s dismissal and remanded for an evidentiary hearing. Downey, 198 Ill. App. 3d at 717.

Though disputes as to trial tactics are rarely the basis for post-conviction relief (see People v. Conley (1983), 118 Ill. App. 3d 122, 454 N.E.2d 1107; People v. Taylor (1982), 110 Ill. App. 3d 112, 441 N.E.2d 1231), where, as Downey indicates, those “tactics” clearly may have denied a defendant a fundamental constitutional right, a court should hold an evidentiary hearing to determine if a defendant’s rights were indeed violated. Because, in the case at bar, the record indicates that defendant's arrest may have been illegal and his statement to the police “the fruit of the poisonous tree,” the circuit court erroneously dismissed defendant’s petition without holding an evidentiary hearing, particularly where defendant would not have been convicted were it not for the admission into evidence of his statement. Moreover, because the circuit court, in dismissing defendant’s petition, apparently harbored the misconception that it had heard from the arresting officers, the court’s dismissal without an evidentiary hearing is suspect.

Here, though the record is by no means complete, we find that defendant has made a substantial showing of a violation of his constitutional right to effective assistance of counsel and his allegations are supported by the record and by affidavits. (See Downey, 198 Ill. App. 3d at 712.) Because the court’s dismissal of defendant’s petition without an evidentiary hearing was in error, we reverse the court’s dismissal and remand for an evidentiary hearing where the circuit court will determine whether defendant was indeed arrested, whether his arrest was made without probable cause, and whether his statements were made as a result of an invalid arrest. See Del Vecchio, 129 Ill. 2d at 284.

Although we find that defendant is entitled to an evidentiary hearing on these issues, we emphasize that we make no determination regarding defendant’s ultimate success on his petition. We hold only that, given the nature of defendant’s allegations of ineffective assistance of counsel, the circuit court incorrectly dismissed the petition without conducting an evidentiary hearing. Consequently, we remand the cause for further consideration in accordance with sections 122 — 4 through 122 — 6 of the Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, ch. 38, pars. 122 — 4 through 122 — 6).

II

Defendant next contends that his trial counsel suffered from a conflict of interest during trial which prejudiced defendant and thus the circuit court erred in dismissing his petition for post-conviction relief. Specifically, defendant maintains that he was denied effective assistance of counsel because his trial attorney failed to advise either him or the court that Federal charges were pending against the attorney. The State responds that defendant’s contention does not rise to the level of ineffective assistance of counsel.

As stated previously, defendant is not entitled to a post-conviction evidentiary hearing unless he has made a substantial showing of a violation of a constitutional right and his allegations are supported by the record or by affidavits. (Downey, 198 Ill. App. 3d at 712.) Thus, the court’s dismissal of defendant’s petition will not be disturbed unless that determination was clearly erroneous. Downey, 198 Ill. App. 3d at 712-13.

In the instant case, the circuit court, in denying defendant’s petition, stated that the fact that defendant’s trial counsel was indicted on Federal charges did not rise to the level of “being a Constitutional deprivation because he didn’t allow his client to make a considered waiver as to whether he wanted [the attorney] under those circumstances to continue to represent him.” In so finding, the court stated that the evidence presented did not show “in any way that [defense counsel] allowed his personal matter to involve with his responsibilities as an attorney representing a client.” Defendant, however, disagreed and suggested to the court that “the very failure to file the appropriate motions in and of itself [showed that defense counsel] was not paying attention to what he was doing at the time he was representing [defendant].”

Though a defendant is entitled to representation by counsel who is free of conflicting interests (People v. Olinger (1986), 112 Ill. 2d 324, 339, 493 N.E.2d 579), defendant’s assertion that the mere pendency of criminal charges brands an attorney incompetent to defend a person charged with a crime does not necessarily follow. Nevertheless, relying upon People v. Williams (1982), 93 Ill. 2d 309, 444 N.E.2d 136, defendant argues that the charges against defense counsel, which counsel failed to disclose to him, affected his performance at trial and resulted in deficient representation.

In Williams, the defense counsel represented the defendant and two other codefendants before one jury, and simultaneously represented a fourth defendant before another jury. All four defendants were charged with capital crimes, and the defendant was subsequently convicted and sentenced to death. Disciplinary proceedings were in progress at the time of trial and the attorney was subsequently disbarred. In Williams, the court relied upon the defendant’s showing of “numerous instances of inaction by counsel to demonstrate that he was denied the effective assistance of counsel.” (Williams, 93 Ill. 2d at 324.) Moreover, the Williams court’s doubts about counsel’s representation were accentuated by the burden of his simultaneous defense of four clients before two juries. (Williams, 93 Ill. 2d at 325.) Ordering a new trial for the defendant, the Williams court characterized the facts there as “unique circumstances and sequence of events *** which will rarely, if ever, be duplicated.” Williams, 93 Ill. 2d at 325.

Though defendant urges this court to apply the reasoning used in Williams, that case and the other cases cited by defendant are inapposite. (See People v. Flores (1989), 128 Ill. 2d 66, 538 N.E.2d 481 (where defense counsel represented a State witness some time prior to the defendant’s trial); Olinger, 112 Ill. 2d 324, 493 N.E.2d 579 (where the defendant was advised by the court that his attorney was being investigated for witness tampering); People v. Kester (1977), 66 Ill. 2d 162, 361 N.E.2d 569 (where defense counsel had prior to the defendant’s trial been involved in his prosecution as an assistant State’s Attorney).) Defendant’s further reliance on People v. Washington (1990), 210 Ill. App. 3d 147, 568 N.E.2d 1279, is misplaced because that case, where the court, relying on Williams, found that the pendency of disciplinary proceedings established that an attorney was incompetent to defend a person charged with a crime, was vacated by the Hlinois Supreme Court in a supervisory order and remanded to the appellate court for further consideration in light of People v. Szabo (1991), 144 Ill. 2d 525, 582 N.E.2d 173. See People v. Washington (1991), 142 Ill. 2d 663 (supervisory order).

In Szabo, the court limited the Williams decision, holding that it was “an aberration peculiar to the facts of that case.” (Szabo, 144 Ill. 2d at 529.) The Szabo court refused to apply Williams to a case where the defendant urged a new trial solely on the basis of his counsel’s problems with the Attorney Registration and Disciplinary Commission. Emphasizing that the defendant’s post-conviction petition alleged only “two brief paragraphs” of deficient representation, the court held that the defendant failed to establish that his counsel’s conduct fell below an objective standard. Szabo, 144 Ill. 2d at 530-31.

Here, we cannot say that trial counsel’s pending criminal charges led to a per se conflict of interest; however, the record is not sufficient to determine whether counsel’s failure to file motions to quash or suppress in and of itself indicates that defendant was prejudiced by a conflict. Though trial counsel stated in his affidavit that he intended to file a motion to suppress defendant’s statement, he further stated that he did not “because [defendant] failed to keep numerous appointments with a clinical psychologist.” We are at a loss to explain why this would prohibit counsel’s filing of the motion to suppress. Nevertheless, because the record presented in the instant case is slim, and because we remand to the circuit court, we direct the circuit court to consider this issue together with the previously discussed issue in the evidentiary hearing to be held on defendant’s post-conviction petition.

Ill

Defendant next contends that he was not proved guilty of murder beyond a reasonable doubt because the State did not provide any substantive evidence that he committed the crime, other than his own confession. Arguing that the State is required to provide independent evidence or corroborating evidence outside of his confession, defendant asserts that his conviction must be reversed.

Defendant, however, misinterprets the holding of the cases he cites. In People v. Lambert (1984), 104 Ill. 2d 375, 472 N.E.2d 427, the court, holding that the corpus delicti cannot be proved by a defendant’s confession alone, found that there was no evidence of the crime of deviate sexual conduct with a child other than the defendant’s confession. Because the State offered no evidence that a crime even occurred, the Lambert court held that the State could not support a conviction of the defendant on his confession alone. (Lambert, 104 Ill. 2d at 379-80.) The court further stated, though, that if there is some independent or corroborating evidence that establishes that a crime occurred, then that evidence may be considered with the confession to establish the corpus delicti. Lambert, 104 Ill. 2d at 379.

In the instant ease, though there were no eyewitnesses to the shooting, the police did discover the body of Pedraza, who the medical examiner determined had died of a gunshot from a .25 caliber gun. Moreover, defendant’s confession was corroborated by the physical evidence found at the scene of the shooting: among other things, defendant described the alley, identified the caliber of pistol used to shoot Pedraza, and described the type of car which Pedraza had driven prior to being shot.

Accordingly, we find that the State is correct in its assertion that the evidence, when viewed in a light most favorable to the prosecution, supports the circuit court’s determination that, based on the evidence presented at trial, defendant was proved guilty of murder beyond a reasonable doubt. People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 453.

IY

Defendant lastly contends that the circuit court erred in denying his motion to strike the State’s affidavit supporting its motion to dismiss defendant’s post-conviction petition. Specifically, defendant asserts that the affidavit of his trial counsel contained inadmissible con-clusional opinions and was not supported by factual evidence.

Relying on Supreme Court Rule 191(a), defendant maintains that trial counsel’s affidavit, which asserted that defendant failed to keep scheduled appointments with counsel and did indeed sign a “waiver” acknowledging counsel’s pending Federal charges, was conclusional and failed to support its contentions with the alleged “waiver” or any other documentation. The State responds that Rule 191(a) is inapplicable to criminal post-conviction affidavits and that defendant’s reliance upon Simpson v. Irving (1981), 99 Ill. App. 3d 176, 425 N.E.2d 62, is misplaced.

In Simpson, an inmate of a State prison filed a mandamus petition alleging that the chairman of the Illinois Prison Review Board was denying him almost two years’ credit off his sentence. The Department of Corrections filed a motion to dismiss the petition, supported by an affidavit alleging that the inmate’s sentence had already been recalculated. Though the circuit court dismissed the petition, the appellate court reversed, finding that the affidavit did not comply with Rule 191(a) in that it was conclusional and did not provide supporting documents. (Simpson, 99 Ill. App. 3d at 178.) The court further emphasized that the “wholly deficient” affidavit was substantially the only evidence offered by the Department of Corrections. Simpson, 99 Ill. App. 3d at 179.

Though defendant, in the case sub judiee, urges this court, like the court in Simpson, to apply Rule 191(a), the State argues that Rule 191(a), by its own terms, applies only in civil cases and does not apply in criminal cases. (See People v. Frieder (1980), 90 Ill. App. 3d 116, 121, 413 N.E.2d 432.) Rule 191(a) provides that affidavits filed in support of and in opposition to motions for summary judgment, for involuntary dismissal, and to contest personal jurisdiction “shall set forth with particularity the facts upon which *** the defense is based; *** shall not consist of conclusions but of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto.” (134 Ill. 2d R. 191(a).) Accordingly, the State contends that Rule 191(a) does not apply to criminal proceedings.

We find that Rule 191(a) is inapplicable to criminal proceedings and thus hold that the court did not err in refusing to strike the affidavit. We emphasize, however, that the affidavit is rife with conclusional statements and even contradictions. As such, the circuit court must judge the affidavit’s weight accordingly.

Based upon the foregoing, the judgment of the circuit court of Cook County denying defendant’s post-conviction petition is reversed and the cause is remanded for an evidentiary hearing on defendant’s petition.

Reversed and remanded.

SCARIANO and McCORMICK, JJ., concur.

      That appeal was stayed during the pendency of defendant’s petition for post-conviction relief.

      Both defendant and his sister, in affidavits attached to his post-conviction petition, stated that he was arrested and taken away in handcuffs by the police, though the police showed no warrant for his arrest. The State contends that defendant was not “arrested,” but merely taken to the station for questioning. The record is unclear as to whether defendant was subjected to any of the procedures of an arrest — searching, booking, and fingerprinting; however, the police “arrest report” indicates that defendant was “arrested” on October 14, 1988, at 10:45 p.m., the time the police brought him to the station for questioning. Furthermore, the same written police reports which reflect that defendant was invited to accompany the police to the station at 10:45 p.m. also indicate that defendant was “arrested” at his sister’s house at that same time.

      Trial counsel’s affidavit, attached to the State’s motion to dismiss defendant’s petition, alleged that defendant was apprised of the charges against his attorney and that he signed a waiver; no waiver, however, was attached to the affidavit.

      Despite his statement in his affidavit that he “intended to file a motion to suppress” defendant’s statement, trial counsel’s affidavit contradictorily states that “it was my opinion that there was sufficient probable cause to support [defendant’s] arrest.”


author: JUSTICE TULLY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY OLLINS, Defendant-Appellant.
    First District (3rd Division)
    No. 1—88—2340
    Opinion filed September 2, 1992.

      G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and William P. Pistorius, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE TULLY

delivered the opinion of the court:

Defendant Larry Ollins was found guilty after a jury trial of murder, aggravated criminal sexual assault, armed robbery, and aggravated kidnapping. (Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 1(a)(1), 12— 14(a)(2), 18 — 2(a), 10 — 2(a)3.) Defendant was sentenced to serve natural life for the murder charge, 30 years’ imprisonment for the aggravated criminal sexual assault and armed robbery charges, to run consecutively, and a concurrent term of 15 years for the aggravated kidnapping charge. Defendant argues on appeal that: (1) the trial court improperly admitted into evidence expert testimony as to the results of Ollins’ blood test assessing his blood type compatibility with semen specimens taken from the victim; (2) the State’s introduction into evidence that Marcellius Bradford and the defendant were roommates for a period in 1984 violated the trial court’s order prohibiting introduction of evidence of the defendant’s prior juvenile criminal history; (3) prior consistent statements of Marcellius Bradford were improperly admitted into evidence by the trial court; and (4) the defendant’s right to a fair trial was prejudiced by the cumulative effect of improperly admitted evidence.

The defendant’s case was severed from his codefendants’ cases on February 24, 1988. The victim, Lori Roscetti, was a medical student at Rush University Medical School. She lived in an apartment in the vicinity of the school. On the evening of the attack, she left the campus accompanied by another student at approximately 1 a.m. They left the campus with Roscetti driving her beige Subaru. Roscetti dropped off the other student at his apartment nearby and then drove towards her apartment. As she was stopped for a stop sign, a man jumped in front of her car. Another man then jumped into the car followed by two others. The assailants held Roscetti in the back of the car while they drove to an isolated railway access road. Upon arrival, Roscetti was taken from the car and assaulted. Her severely beaten body was discovered by a railroad security guard on a routine patrol.

The defendant first argues the trial court improperly admitted into evidence the expert testimony of Pamela Ann Fish of the Chicago crime laboratory. Fish testified as to the results of an analysis of the victim’s blood. A vaginal swab was also taken from the victim Which indicated the presence of semen. The results of the tests revealed that the vaginal swab was consistent with blood samples taken from both Ollins and another codefendant. The tests did not reveal how many individuals had deposited semen into the victim's vagina. The characteristics of the defendant’s blood sample matched the semen found in the victim. However, Fish stated the results of the test also were consistent with 37% of the United States male population.

The defense argues the test results are irrelevant and lack sufficient probative value to be admissible as evidence at trial. The State counters the test results were corroborated by an eyewitness account of the crime. Additionally, the State points out the jury was instructed as to the specific limitations of the test results in both the opening and closing arguments of the prosecution.

The. defense relies principally on the decision in People v. Schulz (1987), 154 Ill. App. 3d 358, 506 N.E.2d 1343. In Schulz, expert testimony about certain blood and semen samples was held to be error so prejudicial as to warrant reversal. The Schulz court held that test results which are overly broad are irrelevant and lack probative value. Thus, the decision of the trial court was reversed. The State maintains that the decision in Schulz is distinguishable from the case at bar primarily because the test results presented in Schulz were the only evidence of the defendant’s guilt. However, the Schulz court further said other evidence which serves to narrow the possible donor group would be properly admissible. The specific limitations of the tests Fish performed were clearly indicated to the jury: (1) the tests could not determine how many males deposited semen into the victim and (2) specific characteristics found in the defendant’s blood sample were also consistent with 37% of the male population of the United States.

In Schulz (154 Ill. App. 3d at 363, 506 N.E.2d at 1346), because of possible deterioration of specific antigens, the defendant could have been or could not have been a secretor or nonsecretor, or could have been or could not have been a donor. A secretor is a person whose blood type is evident in his bodily secretions. Conversely, the blood type of a nonsecretor cannot be determined from his bodily secretions. The inconclusiveness of these specific test parameters serves to further distinguish them from the results of the tests Fish performed on Ollins. Ollins was identified by the test results as a “nonsecretor.” From the entire population of the United States, 20% fall within this category. Thus, this test parameter served to further narrow the universe of possible donors to which Ollins could belong from the 37% of the male population of the United States.

The testimony of Bradford was verified by evidence independently obtained through the police investigation. The extrinsic evidence, viewed according to the dicta established in Schulz, affords further credibility to the tests Fish performed on Ollins. People v. Wright (1989), 186 Ill. App. 3d 159, 542 N.E.2d 367, held where there was also an eyewitness identification of the defendant, such identification would serve to further narrow an identified group of possible assailants. People v. Uzelac (1988), 179 Ill. App. 3d 395, 534 N.E.2d 1250, established that even test results which place the defendant in an extremely broad group, 80% to 90% of the Caucasian population, may be properly admissible into evidence if corroborated by other evidence of the defendant’s guilt.

Bradford described the attack on Roscetti in specific details. The defendant wore gloves; therefore, no fingerprints of the defendant were found at the crime scene. The clothing the victim wore was correctly described. A tool box was placed at the crime scene on the ground. A wooden stick used to hit the victim was described and later identified as being in the victim’s possession by an independent witness at trial. Tom Roscetti, the victim’s brother, described the stick he had made for his sister’s protection at trial and produced a replica which Bradford had described to the police. The cement chunk which the defendant used to bludgeon the victim’s face was identified, and the victim’s book bag was also described.

Because the test results were corroborated by substantial independent evidence, we find that Fish’s testimony was properly admitted into evidence by the trial court. The final argument the defendant raises on the semen donor issue concerns improper comments made by the prosecutor in closing argument. The defense argues that reversible error was committed by the prosecutor saying that the results of the defendant’s test “matched” samples taken from the scene of the crime.

A prosecutor is permitted a wide range of expression in comments made during closing argument. Reversal will not be warranted even if the prosecutive comments could be viewed as improper, unless the defendant is substantially prejudiced. (People v. Thompkins (1988), 121 Ill. 2d 401, 521 N.E.2d 38.) The defendant did not object to the prosecutor’s comments in closing argument either at trial or in his motion for a new trial. Thus, the defendant’s claim is waived in the absence of plain error. (People v. Whitehead (1987), 116 Ill. 2d 425, 508 N.E.2d 687.) The evidence in this case came from sources other than an isolated test result. The totality of the evidence does not present a picture of a closely balanced case. The jury was instructed on the purpose of closing arguments. Such instruction supports that the jury looked at the totality of the evidence in reaching a verdict without being misled by a single comment. Accordingly, even if the jury perceived this single remark in closing argument to be improper, the error would still be harmless. People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200.

Defendant next argues the State improperly admitted into evidence the fact that Ollins was a roommate of Bradford during a specific period of 1984. Bradford had spent nine months at Valley View Correctional Center (Valley View) in 1984. Because defense counsel referred to Bradford’s prior criminal history in their opening statement, it was necessary to negate any inference of concealment of Bradford’s prior criminal history. Thus, the State elicited testimony from Bradford that he had been incarcerated in Valley View during a period of time in 1984. Bradford testified that he entered Valley View on April 11, 1984, and was released on August 22, 1986. Ollins maintains this admission violated the order of the trial court barring introduction of evidence establishing defendant’s prior juvenile criminal history.

The trial court allowed the State to introduce evidence to prove that Ollins lied to Detective Mercurio when he claimed he did not know Marcellius Bradford. Mercurio asked Ollins a few days prior to his arrest if he knew Bradford and if he had any knowledge of the Roscetti murder. Ollins replied negatively to both questions. The State wanted to impeach Ollins’ credibility. Ollins did not testify. The State wanted Bradford to testify that he and Ollins were acquainted prior to the murder. To effect the impeachment of Ollins, the State called Janet Helms to testify. Helms testified only to the fact that she had records in her possession which indicated that Ollins and Bradford lived together during a period of 1984. The State argues that such testimony was in no way prejudicial to the defendant so as to deny him a fair trial. In People v. McDowell (1984), 121 Ill. App. 3d 491, 459 N.E.2d 1018, the court held that an assertion by the defendant which is proved to have been false is admissible as substantive evidence because it indicates a consciousness of guilt. In McDowell, the court held that the defendant’s claim that he was attending school at the time an offense was committed, and the school records showing the contrary, were admissible. Analogously, Ollins’ assertion that he did not know Bradford and proof that he did were properly admitted into evidence.

It should be further noted that the State did ask Ollins to stipulate to the roommate relationship with Bradford but Ollins refused. The stipulation would have overcome the objection that the jury could infer the time period Bradford referred to in his testimony was the period of incarceration at Valley View Correctional Center. The refusal of the stipulation request necessitated the State’s calling of Helms. The defendant cannot complain of alleged prejudice he had the power to avoid. At no time did Helms identify herself as having any affiliation with the Valley View Correctional Center.

The unidentified records Helms testified to could have come from a variety of sources such as postal or educational records. The jury could have also believed that the time period Helms testified to referred to Ollins and Bradford being roommates at the ABLA housing projects because Bradford testified on direct that the defendant also lived in the ABLA projects. Accordingly, we find the State did not present evidence which violated the trial court’s order prohibiting revelation of the defendant’s 1984 juvenile adjudication.

The final issue the defendant raises alleges the trial court erred in allowing specific details of Bradford’s statement which described how Ollins allegedly sexually assaulted and murdered the victim to the police, which were consistent with his testimony at trial, to be elicited from Mercurio on redirect examination.

At trial, it was established that Mercurio had four separate conversations with Bradford between January 27 and 28, 1987. The first conversation took place at 12 a.m. on January 27; the second occurred at 4:45 p.m.; the third at 11 p.m.; and the fourth, the next day, January 28, 1987, at approximately 10 p.m. Bradford’s court-reported statement was given at the January interview. Following Bradford’s testimony and subsequent cross-examination by defense counsel, the State questioned Mercurio as to statements made by Bradford during the third interview which occurred at 11 p.m. on January 27, 1987. The State’s questioning of Mercurio on this point was necessitated by the line of questioning defense counsel pursued on cross-examination of both Bradford and Mercurio. Defense counsel questioned Bradford as to perceived inconsistencies between his statements to the police and his trial testimony. Under the holdings in People v. Hicks (1963), 28 Ill. 2d 457, 192 N.E.2d 891, and People v. Richmond (1980), 84 Ill. App. 3d 1017, 406 N.E.2d 135, the State was entitled to point out correlative consistencies between Bradford’s in-court testimony and his prior custodial statements to the police because defense counsel sought to impeach Bradford’s credibility by relating inconsistencies between his in-court testimony and his prior statements to the police.

Defense counsel relies on People v. DePoy (1968), 40 Ill. 2d 433, 240 N.E.2d 616, which held that where a witness had been impeached by showing that he made statements out of court which contradicted his testimony on the stand, evidence of other previous statements which agree with the witness’ testimony still are not admissible. The holding in DePoy, however, is distinguishable. The court in DePoy disallowed a prior consistent statement made 10 days after the prior inconsistent statement with which the witness was impeached. Because of the 10-day time lapse, the DePoy court held that the rule of evidentiary completeness of Hicks did not apply to the facts of the case. Bradford, however, was impeached with inconsistent statements he made throughout the different interviews which were conducted on January 27, 1987. Therefore, the evidentiary completeness rule allowed the State to rehabilitate Bradford by bringing out prior consistent statements made on the same day.

Further, it is well established that evidence of a statement made by a witness out of court but which is consistent with his trial testimony is admissible where the witness is charged with recent fabrication or his opponent raises an inference that a motive to testify falsely exists which did not exist at the time that the prior statement was made. (People v. Ashford (1988), 121 Ill. 2d 55, 520 N.E.2d 332; People v. Smith (1985), 139 Ill. App. 3d 21, 31-33, 486 N.E.2d 1347, 1354.) Defense counsel charged Bradford with a recent fabrication by implying that he had rehearsed his testimony with prosecutors. Because Bradford reached an agreement with prosecutors approximately three weeks prior to trial, defense counsel also implied that Bradford had a motive to testify falsely. However, it is important to note that no agreement had been reached between Bradford and the State at the time of his January 27, 1987, interviews with the police. Thus, Bradford’s prior consistent statement was admissible to rebut the implied charge of recent fabrication. Ashford, 121 Ill. 2d 55, 520 N.E.2d 332.

Defense counsel’s trial strategy was to portray Bradford as an inherently unreliable witness. In pursuit of this strategy, defense counsel raised inferences that Bradford rehearsed his testimony with prosecutors and that his testimony was influenced by his agreement with the State. For these reasons, we find the State’s introduction of Bradford’s prior consistent statements was proper rebuttal.

The judgment of the trial court is affirmed.

Affirmed.

RIZZI and CERDA, JJ., concur.