author: JUSTICE ROMITI

text:
    THOMAS J. RADOSTA, Plaintiff-Appellant, v. CHRYSLER CORPORATION et al., Defendants-Appellees.
    First District (4th Division)
    No. 81—2929
    Opinion filed December 9, 1982.

      Frank Glazer, Ltd., of Chicago, for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith and Stanley J. Davidson, of counsel), for appellees.
   JUSTICE ROMITI

delivered the opinion of the court:

In 1972 plaintiff Radosta, while driving on the Calumet Expressway, lost control of his truck and collided with a car driven by Patrick Millette. Millette sued Radosta in negligence and the manufacturer and seller of the truck in strick liability and (as to the dealer) negligence and (as to the manufacturer) wilful and wanton conduct because the steerage in Radosta’s truck was defective and this defect was known to the manufacturer. Radosta counterclaimed against the dealer and manufacturer in both strict liability and negligence for the damage to the truck. He did not file a third-party complaint against either the dealer or the manufacturer for indemnification for any liability he might sustain in Millette’s action against him although such third-party action was permitted by section 25(2) of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 25(2)). The jury returned verdicts for Millette and against all three defendants, and for Radosta and against the dealer and manufacturer. This court affirmed in Millette v. Radosta (1980), 84 Ill. App. 3d 5, 404 N.E.2d 823, appeal denied (1980), 81 Ill. 2d 593. Among other issues, the court ruled that the verdicts for and against Radosta were not inconsistent since while, as Radosta admitted, if he was so negligent as to be liable to Millette he could not recover on his own claim in negligence, he could still recover in strict liability.

As noted above, Radosta in the original action did not seek indemnity for Millette’s claim against him. Accordingly, having paid that judgment (or some part thereof — the record is contradictory as to exactly how much he paid), he has filed this action seeking indemnification “for the reason that the primary misconduct causing Millette’s injury was the defect in the product [Radosta’s vehicle] while Plaintiff’s misconduct, if any, was passive or secondary.” Defendants initially moved to dismiss the complaint on the basis that in the original action Radosta had been found guilty of active misconduct and that that finding was binding on him barring any recovery in this action. Radosta responded by contending that he was not suing on the theory of active-passive negligence but in strict liability; he did not, however, amend his complaint which only alleged that defendants were active tortfeasors and his negligence was only passive. Defendants in their reply raised this pleading defect and then contended that Radosta was barred by res judicata from seeking a second recovery in strict liability.

The trial court found that any claim for indemnification was barred by res judicata and dismissed the complaint.

We affirm the holding because: (1) regardless of whether the claim is one in negligence or strict liability, it is barred by res judicata since it arose out of the same group of operative facts in the first action and it could have been raised at that time; and (2) Radosta is collaterally estopped by the judgment in the first action from denying that he was actively negligent.

I

Radosta, relying on Security Insurance Co. v. Mato (1973), 13 Ill. App. 3d 11, 298 N.E.2d 725, contends that since section 25(2) of the Civil Practice Act is only permissive, the party may wait until after he is found liable before filing a claim for indemnity. This is true; it is also irrelevant. The issue here is not whether Radosta could have waited until after the conclusion of the first action before making any claim against the defendants (see, for example, City of Burbank v. Glazer (1979), 76 Ill. App. 3d 294, 395 N.E.2d 97, where none of the issues between the co-defendants was litigated in the initial action). Rather, the issue here is whether Radosta having elected to counterclaim against the defendants in the initial action could split his cause of action, seeking recovery for only some of the damages sustained in the first suit and seeking to recover the rest of the damages arising out of the accident in the second action.

Illinois, like most States, as a matter of public policy generally does not permit splitting causes of actions. (46 Am. Jur. 2d Judgments sec. 405 (1969).) As this court held in Baird & Warner, Inc. v. Addison Industrial Park, Inc. (1979), 70 Ill. App. 3d 59, 387 N.E.2d 831, appeal denied (1979), 79 Ill. 2d 609, in accord, Morris v. Union Oil Co. (1981), 96 Ill. App. 3d 148, 421 N.E.2d 278, appeal denied (1981), 85 Ill. 2d 567, generally a plaintiff cannot divide an entire demand or cause of action so as to maintain several actions for his recovery; he cannot indulge in piecemeal litigation. Thus an entire claim arising from a single tort cannot be divided and be the subject of several actions regardless of whether or not the party suing has recovered all he might have recovered. This is true even as to prospective damages, as our courts have held that there cannot be successive actions brought for a single tort as damages in the future are suffered but the one action must embrace prospective as well as accrued damages. (Melohn v. Ganley (1951), 344 Ill. App. 316, 100 N.E.2d 780; Lake E. & W. Ry. Co. v. Purcell (1897), 75 Ill. App. 573; 23A Ill. L. & Prac. Judgments sec. 339 (1979).) This rule is founded upon the plainest and most substantial justice, that litigation should have an end and that no person should be unnecessarily harassed with a multiplicity of lawsuits. Baird & Warner, Inc. v. Addison Industrial Park, Inc. (1979), 70 Ill. App. 3d 59, 387 N.E.2d 831, appeal denied (1979), 79 Ill. 2d 609.

Since the parties in the two actions are the same, the claims here are barred under the doctrine of res judicata as they arose out of the same cause of action as those in Radosta’s counterclaim. (Baird & Warner.) It is immaterial that Radosta seeks different damages here since the assertion of different kinds of relief or different damages still constitute a single cause of action if a single group of operative facts give rise to the assertion of relief (Morris; Baird & Warner; Melohn) and Radosta could have joined the second claim in the first action. Radosta’s claim in both actions is based on the claim that defendants sold him a vehicle with defective steering which caused an accident and that defendants should be liable for damages resulting therefrom, and the fact that the second action is based on proof that he paid funds to another does not make this a different cause of action from the first. Melohn:

II

Radosta’s claim is also barred because he is collaterally es-topped from denying that he was actively negligent. An indemnitee is bound for all necessary findings in the underlying actions. (Preston v. National Broadcasting Co. (1971), 133 Ill. App. 2d 200, 272 N.E.2d 700.) It is clear from the pleadings in the earlier case that the jury found Radosta liable either because he was negligent in operating the vehicle and lost control of it causing the accident, or because he drove the vehicle when he knew or should have known of the steering defect and that such defect was dangerous and could lead to an accident or on both grounds. But either ground constitutes active negligence barring indemnification. (Halligan v. Shulman (1961), 31 Ill. App. 2d 168, 175 N.E.2d 590.) An indemnitee’s negligence resulting in his losing control of Ms veMcle is active misconduct as a matter of law and bars Ms claim of indemnity. (Chapel v. Thompson (1977), 56 Ill. App. 3d 548, 372 N.E.2d 95.) Likewise, a person operating a veMcle with knowledge of a serious defect wMch might cause an accident is guilty of active negligence and cannot seek indemnification. (Halligan v. Shulman (1961), 31 Ill. App. 2d 168, 175 N.E.2d 590.) Accordingly, regardless of wMch ground formed the basis of Radosta’s liability, he was convicted of active negligence and barred as a matter of law from recovering from defendants.

Radosta has contended in Ms brief below and in Ms reply brief on appeal that he was seeking recovery in strict liability and that the doctrine of active-passive negligence was inapplicable. However, as noted earlier, Radosta’s complaint only alleged an action in negligence and even after defendants pointed out tMs defect Radosta did not amend Ms complaint. While a complaint must be liberally construed, tMs court cannot read in allegations that are totally absent. An allegation in active-passive negligence clearly fails to meet the test of section 42(2) of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 42(2)) that the pleadings put the defendant on notice that he must contest a claim in strict liability.

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

Affirmed.

JOHNSON, P.J., and LINN, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE BARRY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CAROL CISEL, Defendant-Appellant.
    Third District
    No. 81—528
    Opinion filed December 13, 1982.

      Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

The defendant, Carol Cisel, was charged by traffic complaint with the offenses of driving while her license was revoked and driving while under the influence of intoxicating liquor. Following a bench trial in the circuit court of Peoria County, the defendant was found guilty of the first charge and found not guilty of the second charge. She subsequently received a 30-day term of imprisonment. She appeals from both the judgment of conviction and the sentence. Although the trial was apparently transcribed, the parties have submitted a certified agreed statement of facts for purposes of our review.

To establish the Class A misdemeanor of driving with a revoked license under section 6 — 303(a) of the Illinois Vehicle Code (Ill1. Rev. Stat. 1981, ch. 95V2, par. 6 — 303(a)), the prosecution must prove beyond a reasonable doubt that the accused was driving a vehicle on an Illinois road and that the Secretary of State had revoked the accused’s license. Proof of the second element may be adduced as provided by section 6 — 118(f):

“(f) An abstract issued by the Secretary of State pursuant to Section 6 — 118 of this Act, on request of a law enforcement agency, for the record of a named person as to the status of his driver’s license shall be prima facie evidence of the facts therein stated and if the name appearing in such abstract is the same as that of a person named in an information or warrant charging a violation of this Section, such abstract shall be prima facie evidence that the person named in such information or warrant is the same person as the person named in such abstract.” (Ill. Rev. Stat. 1981, ch. 95x/2, par. 6 — 118(f).)

Here, the prosecution introduced into evidence a license abstract showing that Carol Cisel’s driving license had been revoked by the Secretary of State when she was stopped on April 14, 1981. She contends on appeal that the presumption that the person named in the license abstract is the person named in the charging instrument is unconstitutional.

Inferences and presumptions occur throughout our legal milieu. For our purposes, a presumption is a standardized practice, under which certain “predicate” facts are held to require uniform treatment with respect to their effect as proof of other facts. (See McCormick, Evidence sec. 342 (2d ed. 1972).) The validity of this evidentiary device under the due process clause varies depending upon the strength of the nexus between the predicate facts and the presumed facts and upon the degree to which the presumption curtails the trier-of-fact’s freedom to assess the evidence independently.

A permissive presumption is one which would allow, but not require, the trier of fact to accept the existence of the presumed fact even in the absence of contrary evidence. A mandatory presumption, by contrast, is one which would require the trier of fact to find the presumed fact, at least until the defendant has come forward with some amount of evidence to the contrary. Mandatory presumptions can run afoul with the due process clause not only because they can relieve the prosecution of its burden to prove the elements of the offense beyond a reasonable doubt, but also because they can shift to the accused the burden of persuasion.

In view of the foregoing principles, we have examined section 6— 118(f) and we find no unconstitutional infirmity in the presumption expressed therein. Accordingly, we affirm the defendant’s conviction.

The section 6 — 118(f) presumption, contrary to the State’s contention, is not permissive, but mandatory. A plain reading of section 6— 118(f) shows that, by stating the license abstract “shall be prima facie evidence of the facts therein stated” (emphasis added) (Ill. Rev. Stat. 1981, ch. 95x/2, par. 6 — 118(f)), the General Assembly intended that the trier of fact must consider the presumed facts once the predicate facts are established. In none of the several cases cited by the State is a similar statutory presumption found to be permissive. The impact of this mandatory presumption on the defendant’s due process rights, however, is no greater than that of a permissive inference because the presumption imposes an extremely low burden of production on the defendant — i.e., being satisfied by “any evidence.” (County Court v. Allen (1979), 442 U.S. 140, 60 L. Ed. 2d 777, 99 S. Ct. 2213.) Here, the defendant needs only to contradict or rebut the presumed fact by any relevant, admissible evidence to destroy the effect of the presumption. Thus, as the court noted in People v. Navis (1974), 24 Ill. App. 3d 842, 321 N.E.2d 500, the defendant can easily show that the records sought to be introduced against him are actually not his own. The burden of ultimate persuasion remains with the prosecution.

Moreover, the nexus between the predicate fact and the presumed fact survives the beyond-a-reasonable-doubt standard. The presumption of correctness is quite reasonable since the Secretary of State’s records identify drivers more precisely than merely by name. (Navis.) The license abstract is also the most direct method of proving suspension or revocation. Here, because the defendant failed to offer any evidence that the Carol Cisel named in the complaint and the Carol Cisel listed on the license abstract were different persons, the presumption of identity stands uncontradicted and must be accepted by the trier of fact.

We also reject the defendant’s contention that the sentence of 30 days’ imprisonment was excessive. The sentence lay well within the prescribed statutory range of less than one year for the Class A misdemeanor of driving with a revoked or suspended license. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—3(a)(1).) Although the imposition of such a sentence could adversely affect her somewhat bleak financial situation, the circuit court found that such a sentence was necessary in view of her record of abuse of her driving privilege. For the same reason, the court also rejected the once failed alternative of probation. We cannot say that the decision was an abuse of the circuit court’s discretion.

Accordingly, we affirm the judgment and sentence entered in the circuit court of Peoria County.

Affirmed.

STOUDER and SCOTT, JJ., concur.


text:
    GEORGE A. STARCEVICH, Plaintiff-Appellant, v. THE CITY OF FARMINGTON, Defendant-Appellee.
    Third District
    No. 82—26
    Opinion filed December 13, 1982.

      Judith A. Toohill, of Toohill, Toohill & Toohill, of Farmington, for appellant.
    Richard E. Stites, of Livingston, Barger, Brandt, Slater & Schroeder, of Bloomington, for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Fulton County which dismissed plaintiff’s three-count complaint against the City of Farmington, Illinois, a municipal corporation.

The plaintiff, George A. Starcevich, on February 17, 1981, filed a complaint for flood damages to his real estate. The complaint was amended twice; and the second amended complaint, which is the subject of this appeal, sought relief in three counts for negligence, trespass to land and an unconstitutional taking of land for public use. The defendant moved for dismissal on grounds that each count failed to state a cause of action against it. After a hearing on the motion, the trial court allowed defendant’s motion and dismissed the complaint with prejudice on grounds that each of plaintiff’s counts failed to state a cause of action, and that, even if they did, they would be barred by applicable limitations periods. Upon denial of plaintiff’s post-judgment motion, plaintiff filed a timely notice of appeal, thus conferring jurisdiction in this court.

The issues before us require that we reassess the grounds for dismissal as presented to the trial court with reference to the pleadings and relevant law. A rather detailed recitation of the allegations of plaintiff’s second amended complaint is necessary. It alleges that plaintiff has owned and occupied land abutting the defendant city since 1955. Access to plaintiff’s home and farm buildings was provided by a gravel driveway extending from a public road to them. At the base of the driveway, there was an 18-inch concrete culvert which permitted surface waters to flow in their natural course of drainage from east to west.

Around 1969 and 1970, the defendant city began removing trees and shrubs and adding fill to a recreational field to eliminate a bowl-effect depression. A large underground culvert line was also installed across the field. According to the complaint, these municipal improvements increased the water on plaintiff’s land by diverting the natural flow of surface waters which would not otherwise have reached plaintiff’s land. The complaint further recites that the defendant city negligently designed the aforementioned culvert system and that in 1974 during a rainstorm, plaintiff’s driveway was washed away as a proximate result of the additional quantity and force of water propelled through the culvert and upon plaintiff’s property. Upon plaintiff’s request, the city did partially pay for repairs to plaintiff’s drive on that occasion. Further developments undertaken by the city after 1974 included annexing 11 acres of land in 1976 on which buildings have been constructed and permitting 14 additional trailers to be set up in a trailer park, both of which allegedly further diminished the land area available for surface drainage; revising the city’s sanitary system; and continued filling of the recreational field. The cumulative effect of these improvements, plaintiff alleges, was to increase the amount and force of water propelled through the culvert and over plaintiff’s land. As a consequence, in June of 1980, a heavy rainstorm once again washed away plaintiff’s driveway. This time, however, the defendant city declined plaintiff’s invitation to help him pay for repairs. Plaintiff furnished notice of his injury in accordance with section 8 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1979, ch. 85, par. 8 — 102), and thereafter proceeded in court with his cause of action for which he seeks $4,120 in damages.

Before proceeding to consideration of the substance of the pleadings we must determine whether the trial court correctly ruled that plaintiff’s purported causes of action are time-barred.

The trial court, in a supplemental order of December 17, 1981,. stated that sections 15 and 21.3 of the Limitations Act (Ill. Rev. Stat., 1979 Supp., ch. 83, pars. 16, 22.3) barred plaintiff’s three causes of action, if such exist. On appeal, plaintiff takes the position that neither the five-year statutory period (Ill. Rev. Stat. 1979, ch. 83, par. 16) nor the two-year statutory period (Ill. Rev. Stat., 1979 Supp., ch. 83, par. 22.3) cited by the trial court apply to a suit, such as this, filed by a private party against a municipal corporation. Plaintiff suggests that a five-year limitations period should apply since the subject matter of the complaint is essentially concerned with drainage. While directing our attention to section 11 — 13 of the Illinois Drainage Code (Ill. Rev. Stat. 1979, ch. 42, par. 11 — 13), plaintiff acknowledges that the statute would appear to apply to suits between formally constituted drainage districts or municipalities rather than, as here, between a private property owner and the drainage district or municipality. Defendant suggests that the appropriate limitations period for this suit is found in section 8 — 101 of the Local Governmental and Governmental Employees Tort Immunity Act. Ill. Rev. Stat. 1979, ch. 85, par. 8 — 101.

Careful reading of the various statutes convinces us that the appropriate limitations period for this suit is found in the Local Governmental and Governmental Employees Tort Immunity Act. The Act (hereinafter also referred to as Tort Immunity Act), as amended in 1973, provides that “[n]o civil action may be commenced *** against a local entity for any injury unless it is commenced within 2 years from the date that the injury was received or the cause of action accrued.” (Ill. Rev. Stat. 1979, ch. 85, par. 8 — 101.) As between this two-year limitations statute and the five-year limitations period contained in section 15 of the Limitations Act, we find that the oft-cited maxim of statutory construction that a special act prevails over a general act applies so as to resolve any apparent conflict. (Stanley v. Denning (1970), 130 Ill. App. 2d 628, 264 N.E.2d 521; 82 C.J.S. Statutes sec. 369 (1953).) Furthermore, to the extent that the instant suit is brought against a public entity and the legislature initially enacted the Tort Immunity Act in response to Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11, 163 N.E.2d 89 (common law sovereign immunity doctrine held inapplicable to school districts), it is apparent to us that the legislature intended to provide greater protection for a public entity defendant than would be available under the general limitations statute by shortening the period for the filing of claims. See Latturner, Local Governmental Tort Immunity and Liability in Illinois, 55 Ill. B.J. 28 (1966).

With respect to the plaintiff’s suggestion that we should be guided by section 11 — 13 of the Elinois Drainage Code, we need state simply that plaintiff is entirely correct in his observation that the five-year limitation period there stated applies only to suits brought under article 11 of the Act and is therefore limited to causes of action between drainage districts and/or municipal corporations exercising drainage powers. (Ill. Rev. Stat. 1979, ch. 42, par. 11 — 1 et seq.) The Elinois Drainage Code does not apply to a private suit levied against a body politic.

Having thus determined that plaintiffs causes of action, if they exist, are controlled by a two-year statute of limitations, our next task is to determine when the period began running. The language of the Tort Immunity Act plainly allows for actions to be “commenced within 2 years from the date that the injury was received.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 85, par. 8 — 101.) Plaintiff has alleged “receipt of injury” on two specific occasions — in 1974, and, again, in 1980, both during unusually heavy rainstorms. The only act of wrongful conduct or negligence by defendant alleged in the complaint is negligent design of the culvert system. This negligent act preceded the 1974 damage. The defendant city on appeal takes the position that, regardless of which statute of limitations applies, plaintiff’s cause of action is barred because it accrued either between 1969 and 1970 or in 1974 when plaintiff had notice of his first injury.

Plaintiff, on the other hand, contends that either the defendant city is estopped from asserting the statute of limitations defense because of its partial payment for the 1974 injury; or the cause of action for the 1980 injury accrued, at the earliest, in 1979 when the sanitary sewer system was being revised.

Although there appears to be a paucity of case law in Illinois specifically addressing the statute-of-limitations issue before us, this precise issue has been the subject of some controversy in foreign jurisdictions. The reported cases have been collected in Annot., 5 A.L.R.2d 302 (1949). There, the cases are grouped into four categories: (1) those which have held that completion of construction by the defendant starts the running of the statutory period; (2) those which hold generally that the statutory period begins to run from the time of injury by overflow; (3) those which hold that plaintiff’s entire cause of action accrues from when the injury caused to plaintiff’s land is permanent, rather than temporary in nature; and (4) those which hold that separate causes of action accrue and start new periods of limitations at each successive injury by overflow. ' .

We find that the rule in Illinois applicable to the situation herein most accurately falls within the ambits of group 4. Clearly, the statutory period in Illinois does not begin running only at completion of a defendant city’s construction. The plain language of the Tort Immunity Act permits plaintiff to bring his cause of action within two years of the “injury.” In the present case, the plaintiff alleges injuries that did not become apparent upon completion of the municipality’s improvements.

Plaintiff’s complaint alleges two separate injuries and one negligent act followed by other acts which, although not wrongful in and of themselves, exacerbated the problems caused by the earlier negligent design of the culvert system. Assuming at this point that plaintiff’s allegations can be proved, he is the victim of “repeated” injury.

Where a tort involves repeated injury, the statute of limitations in Illinois begins to run from the date of the last injury or when the tortious acts cease. (City of Rock Falls v. Chicago Title & Trust Co. (1973), 13 Ill. App. 3d 359, 364, 300 N.E.2d 331, 334.) We perceive of no reason to restrict this rule so as to preclude plaintiff’s causes of action in the instant case. Rather, we find that the rule is particularly applicable to suits brought under the Tort Immunity Act inasmuch as the Act is in derogation of common law and must be strictly construed against the local public entity. (Clark v. City of Chicago (1980), 88 Ill. App. 3d 760, 410 N.E.2d 1025.) Accordingly, we hold that the two-year statute of limitations, for purposes of plaintiff’s 1980 injury, began to run on June 2, 1980, the date when plaintiff’s driveway was washed away during a rainstorm. As such, plaintiff’s suit against the city of Farmington for the 1980 injury is not time-barred.

We turn next to the question of whether plaintiff’s three counts sufficiently state causes of action. As aforesaid, plaintiff’s three counts sound in negligence, intentional trespass and an unconstitutional “taking,” respectively. Having considered only the allegations of the complaint, we find that count III was properly dismissed and that counts I and II must be remanded for further proceedings. As defendant correctly asserts, and the trial court correctly ruled, plaintiff’s count III must fail because the injuries complained of are neither so frequent nor permanent in nature as to constitute a “taking.” (County of Winnebago v. Kennedy (1965), 60 Ill. App. 2d 408, 208 N.E.2d 612; see also Dutton v. City of Crest Hill (N.D. Ill. 1982), 547 F. Supp. 38.) Rather, it would appear that plaintiff’s allegations as contained in counts I and II more properly state a cause of action for money damages.

Counts I and II are premised on defendant’s duty, as owner of the dominant estate and of the culvert system allegedly at the heart of plaintiff’s injuries, not to so increase the flow of surface waters on plaintiff’s land as to be beyond the policy of reasonableness of use. (Templeton v. Huss (1974), 57 Ill. 2d 134, 311 N.E.2d 141.) The city contends that plaintiff’s allegations of unreasonableness are not well-pleaded because they fail to allege a duty not to make a change resulting in an “unreasonable use.” Defendant’s position misconstrues the standard of care expressed in Templeton.

The Illinois Supreme Court in Templeton defined the correct rule in Illinois respecting suits by landowners for damages resulting from an adjoining landowner’s deflection of surface water from his own property onto that of his neighbor. To prevail, the landowner must establish that “the increased flow of surface waters from the land of the defendants to that of the plaintiff *** was beyond a range consistent with the policy of reasonableness of use which led initially to the good-husbandry exception.” (Templeton v. Huss (1974), 57 Ill. 2d 134, 141, 311 N.E.2d 141, 146.) In our opinion, the “unreasonableness” to be pleaded and proved is not in the defendant’s use of the dominant estate, but rather in the interference with drainage through natural flow and seepage that defendant’s changes cause upon the plaintiff’s servient estate. Plaintiff clearly alleges defendant’s duty not to unreasonably increase the quantity and force of waters cast upon his land. As we see it, plaintiff thereby sufficiently alleges defendant’s duty not to unreasonably interfere with drainage upon his land. Plaintiff further alleges specific changes made on the dominant estate which he alleges constitute breaches of that duty. If those changes resulted in an unreasonable interference, then plaintiff has, in our view, sufficiently pleaded a breach of the standard of care as required by Templeton. Having carefully reviewed the plaintiff’s second amended complaint, we cannot say that counts I and II are substantially insufficient in their allegations of defendant’s duty and the breach thereof. Nor do we find any other basis for dismissing these counts.

Although the defendant city alluded generally to statutory immunities in its motion to dismiss, it does not appear to us that a sufficient basis for raising such immunities exists. Specifically, we do not believe that the crux of plaintiff’s complaint is defendant’s failure to inspect property (Ill. Rev. Stat. 1979, ch. 85, par. 2 — 105), or adoption of a design approved by a body exercising discretionary authority to give such approval (Ill. Rev. Stat. 1979, ch. 85, par. 3 — 103). Nor do we find a factual basis to establish nonliability of any of the defendant city’s employees (Ill. Rev. Stat. 1979, ch. 85, par. 2 — 109) or that a public employee was serving in a position involving the determination of policy or exercise of discretion and as a result of such employee’s act plaintiff suffered the injury complained of (Ill. Rev. Stat. 1979, ch. 85, par. 2 — 201). On the face of the pleadings, we cannot therefore determine that the defendant city will necessarily prevail on the statutory defenses.

In sum, we conclude that the plaintiff’s complaint sufficiently alleged causes of action in counts I and II of the complaint; that such causes of action are not barred by the applicable statute of limitations; and that the trial court properly dismissed count III of the complaint for failure to state a cause of action.

Affirmed in part, reversed in part, and remanded.

STOUDER and ALLOY, JJ., concur.

      Certainly on a different set of facts, e.g., if an improvement displays obvious defects upon completion or results in immediate permanent injury to the servient landowner, the limitation period does begin to run upon completion of the improvement. Wheeler v. Sanitary District (1915), 270 Ill. 461, 110 N.E. 605.


author: JUSTICE STOUDER

text:
    JOHN J. PARRISH, a minor, by Charles Bowker et al., his Legal Guardians and next Friends, Plaintiff-Appellee, v. RONALD J. DONAHUE, Defendant-Appellant.
    Third District
    No. 82—65
    Opinion filed December 20, 1982.

      Mark F. Cyr, of Peter F. Ferracuti & Associates, Ltd., of Ottawa, for appellant.
    Louis E. Neuendorf & Associates, of Sandwich, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

Plaintiff John J. Parrish, a minor, by his next friends Charles Bowker and Roxanne Bowker, legal guardians, filed a three-count complaint for compensatory and exemplary damages for personal injuries allegedly occasioned by the assault and battery of defendant Ronald J. Donahue. At the close of the evidence, the circuit court of La Salle County dismissed one count of the complaint and directed a verdict on the question of liability in favor of plaintiff. The jury thereafter returned a verdict of $10,000.

The scenario of this tort action began at approximately 11:45 p.m. on May 5, 1980. Jane McGuinn was awakened by the sound of a vehicle being driven in the fields of her farm. She called defendant as he farmed the fields as her tenant. When defendant arrived, he found a car, which had broken through a pasture fence at several points, spinning “donuts” in the newly-planted fields. He attempted to stop the vehicle and fired a warning shot from a handgun. The driver responded by attempting to run him over, driving through another section of fence, and again driving at him. Defendant fired a second shot and followed the car down a country road. The driver parked in front of the Bowker residence and ran around the house. Defendant followed.

The parties’ versions of what then happened bear almost no similarity. Plaintiff testified that, after hearing a vehicle coming up the road, he saw an individual running around the house and up to the barn. Defendant appeared and ordered him, at gunpoint, to turn around and put his hands on his truck. Plaintiff explained that defendant then kicked him in the groin, ordered him down “on all fours,” and twice struck him in the head with the butt of the handgun. Defendant testified that plaintiff came out of the barn and, while he realized he was not the driver of the car, believed the driver might be inside the bam. He asked plaintiff, at gunpoint, to turn around and put his hands on the track. Defendant explained that plaintiff then whirled around and swung at him, whereupon he pushed him to the ground with the gun butt.

The first issue we today address is whether the trial court erred in directing the verdict on the question of liability. The standard is well established:

“[V]erdicts ought to be directed *** only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelming 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, 229 N.E.2d 504, 513-14.

So viewing the facts, defendant was called late in the evening and when he went to his fields, someone twice tried to ran him over. He pursued this individual and found plaintiff. Concerned that his assailant was in the barn from which plaintiff had exited, he held plaintiff at bay. When plaintiff spun around and threw a punch at him, defendant pushed him down with the butt of his handgun.

With respect to civil liability, an assault can be defined as an intentional, unlawful offer of corporal injury by force, or force unlawfully directed, under such circumstances as to create a well-founded fear of imminent peril, coupled with the apparent present ability to effectuate the attempt if not prevented. (See 3 Ill. L. & Prac. Assault and Battery sec. 2 (1953).) A battery can be defined as the wilful touching of the person of another or a successful attempt to commit violence on the person of another. (See 3 Ill. L. & Prac. Assault and Battery sec. 2 (1953).) Under these definitions defendant, in the absence of an affirmative defense, committed the alleged torts.

Defendant raised the affirmative defense of provocation; however, he did not similarly raise self-defense as an issue. As was recently noted:

“In an action for assault and battery, provocation would not defeat the action except to the extent that it may be involved in the issue of self-defense. Thus, in the present case, self-defense would have been the proper defense to raise, rather than provocation, and self-defense would be an ultimate issue. [Citations.]” (Walker v. Dominick’s Finer Foods, Inc. (1980), 92 Ill. App. 3d 645, 647, 415 N.E.2d 1213, 1215.)

As self-defense was not here raised, the trial court did not err in directing the verdict of assault and battery.

Our so holding, however, does not dispose of the issue. Count II of the complaint alleged that defendant was guilty of wilful and wanton assault and battery, such a conclusion premising an award of exemplary damages (Chicago Consolidated Traction Co. v. Mahoney (1907), 230 Ill. 562, 82 N.E. 868). In directing a verdict on the issue of liability, the trial court impliedly found the tort at bar to have the requisite wanton or malicious character. Viewing the facts from the Pedrick perspective, defendant only held plaintiff at bay because he came out of a bam where defendant’s assailant might have still remained. Only when plaintiff spun and threw a punch at him did defendant strike plaintiff. That single blow occurred as defendant attempted to push him down. Plaintiff’s damages consisted of a $159.30 bill for emergency room treatment and a $65 bill from his doctor. He has no permanent injuries and has not required medical attention since the day following the incident. In most cases the issue of wilful and wanton misconduct is a question for the jury, and only in an exceptional case will the issue be taken from the jury’s consideration. (Cf., e.g., Pedersen v. Kinsley (1975), 25 Ill. App. 3d 567, 323 N.E.2d 562 (negligence action).) Given the circumstances at bar, we do not find the evidence, viewed from the Pedrick perspective, so overwhelmingly favors plaintiff on this issue that no contrary verdict could ever stand. This being the case, the trial court erred in taking the question of whether defendant’s conduct was wanton and malicious from the jury.

As this cause must necessarily be remanded, we shall address an additional issue likely to arise again. During direct examination, Roxanne Bowker testified that she smelled beer on defendant’s breath during a conversation after the incident. On cross-examination, she said she had no opinion as to whether he was intoxicated. Charles Bowker later testified that, the day after the incident, defendant stated “that if he hadn’t been drunk probably, he probably wouldn’t have done it.” Defendant moved for a mistrial and introduced refuting evidence, including the testimony of a deputy who came to the scene to investigate. At issue is the propriety of such evidence.

While there is some authority that evidence of a defendant’s intoxication during an assault may, under certain circumstances, be admissible (see 6 Am. Jur. 2d Assault and Battery sec. 208 (1963)), the issue has not been widely discussed in actions of this nature. Reference to dramshop or criminal cases are neither controlling nor persuasive as, in such cases, the presence of intoxication is a necessary part of the case. (Shore v. Turman (1965), 63 Ill. App. 2d 315, 210 N.E.2d 232, appeal denied (1966), 33 Ill. 2d 626.) Where such is not the case, the issue most frequently arises in negligence actions, where the rule has been stated:

“Evidence of intoxication is admissible in a personal injury-action as tending to show the negligence of one of the parties. [Citation.] *** However, drinking, standing alone, cannot be equated with intoxication, nor can the use of alcoholic liquor, standing alone, characterize a person as intoxicated. [Citation.] Accordingly, questions cannot be asked which intimate to the jury that a party was intoxicated at the time of the accident unless there is supporting evidence [citation]; in the absence of supporting evidence, testimony concerning the drinking of intoxicants should be stricken [citation], and under certain circumstances, may constitute reversible error notwithstanding a sustained objection. [Citation.]” (Ballard v. Jones (1974), 21 Ill. App. 3d 496, 501, 316 N.E.2d 281, 286, appeal denied (1974), 57 Ill. 2d 604.)

Moreover,

“A plaintiff must bolster the probative value of the drinking with other evidence of the next step in the chain of causation, namely, actual impairment of physical or mental capabilities so as to diminish the defendant’s ability to act with due care. [Citation.] In short, intoxication.” Bohnen v. Wingereid (1979), 80 Ill. App. 3d 232, 237, 398 N.E.2d 1204, 1208.

In the case at bar, intoxication is clearly not a necessary part of the cause of action as in a dramshop or criminal case. Defendant’s ability to act with due care is likewise not a part of the cause of action as it might be in a negligence action. Due to these facts and the prejudicial nature of the evidence of drinking (see Bohnen v. Wingereid (1979), 80 Ill. App. 3d 232, 238, 398 N.E.2d 1204, 1208) and intoxication, plaintiff may not introduce such evidence on retrial of this cause.

Accordingly, the judgment of the circuit court of La Salle County is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

Affirmed in part, reversed and remanded in part.

ALLOY and HEIPLE, JJ., concur.


author: PRESIDING JUSTICE BARRY JUSTICE HEIPLE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL TERRELL, Defendant-Appellant.
    Third District
    No. 82-75
    Opinion filed December 13, 1982.
    HEIPLE, J., dissenting.
    Robert Agostinelli and Pamela A. Peters, both of State Appellate Defender’s Office, of Ottawa, for appellant.

      L. Patrick Power, State’s Attorney, of Kankakee (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

Defendant was tried in the circuit court of Kankakee County on an indictment charging him with attempt (armed robbery) and unlawful use of weapons. After a bench trial, the court entered a judgment of conviction on the attempt (armed robbery) charge and sentenced the defendant to two years’ probation. In this appeal, defendant contends that the State’s evidence failed to prove the two essential elements of the offense of which he was convicted — miewi to commit armed robbery; and an act constituting a substantial step toward the commission of armed robbery. (Ill. Rev. Stat. 1979, ch. 38, par. 8— 4(a).) We affirm.

This case falls squarely within that most troublesome area of criminal law where we are called upon to distinguish between “mere preparation” for the commission of a crime and “attempt.” Although much has been written on the subject, nevertheless we are time and again relegated to a case-by-case analysis of the facts and circumstances of record; and our resolution of the instant case presents no exception.

On August 7, 1980, at 6:17 a.m., the Kankakee city police received an anonymous telephone call reporting that two armed men had been seen hiding in the vicinity of an Owens gas station. The message was dispatched and received by Sergeant Richard Whitehead and by Officers Robert Pekin and Walter Rokus. These officers, occupying two marked squad cars, arrived at the scene of the reported suspicious circumstances within two minutes and observed two men about 25 feet from the gas station, one or both of whom leaped out of the weeds and scaled a fence at the rear of the gas station. Within 20 minutes, the police had captured and arrested the defendant and Charles Lott and secured a recently dropped handgun found at the base of the fence. Black ladies’ stockings were found in the pants pockets of both men. The officer who had searched the defendant noted that he had no money. The defendant nonetheless explained his presence on the scene by stating that his sister lived in the area and that he was going to the gas station to purchase cigarettes.

On these facts the trial court concluded that sufficient evidence had been introduced by the State to prove beyond a reasonable doubt that the defendant was guilty of having committed attempt (armed robbery). No conviction was entered on the unlawful use of weapons charge. The defendant contends that the State’s evidence is insufficient as a matter of law to sustain the attempt (armed robbery) conviction. We disagree.

Attempt is that subtle concept by which society is enabled “to punish malefactors who have unequivocally set out upon a criminal course without requiring law enforcement officers to delay until innocent bystanders are imperiled.” (United States v. Stallworth (2d Cir. 1976), 543 F.2d 1038.) By statute, a defendant may not be convicted of attempt unless he performs some “act which constitutes a substantial step toward the commission of that offense.” (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 4(a).) Our courts have laid down several rules which we will attempt to apply to the facts before us. As indicated earlier, “[m]ere preparation to commit a crime *** does not constitute an attempt to commit it.” (People v. Woods (1962), 24 Ill. 2d 154, 158, 180 N.E.2d 475, 478, cert. denied (1962), 371 U.S. 819, 9 L. Ed. 2d 59, 83 S. Ct. 34.) However, “it is not requisite that the act of the defendant *** necessarily [be] the last deed immediately preceding that which would render the substantive crime complete.” People v. Paluch (1966), 78 Ill. App. 2d 356, 358, 222 N.E.2d 508, 509.

The American Law Institute’s Model Penal Code, under “Conduct Which May Be Held Substantial Step Under Subsection (l)(c)” (defining attempt), lists seven acts which, “if strongly corroborative of the actor’s criminal purpose, shall not be held insufficient as a matter of law.” Among those listed are: “(a) lying in wait, searching for or following the contemplated victim of the crime; *** (c) reconnoitering the place contemplated for the commission of the crime; *** (e) possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances; [and] (f) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances.” Model Penal Code sec. 5.01(2) (Proposed Official Draft 1962).

In the present case, we believe that sufficient evidence has been presented to sustain the trial court’s conclusion and that the defendant’s conduct amounted to more than mere preparation to commit armed robbery and did in fact constitute a substantial step toward the commission of that offense. The record discloses that the defendant was first observed hiding in the weeds of an empty lot about 25 feet from the Owens station. This evidence supports a finding that the defendant was either “lying in wait” or “reconnoitering” the Owens station. (Defendant suggests on appeal that he “merely studied the gas station from a distance,” or “was merely ‘casing’ the station in contemplation of some future crime.”) The defendant was seen wielding a gun — an object of obvious usefulness in an armed robbery which could serve no lawful purpose under the circumstances. Finally, the defendant was found carrying a black ladies’ stocking in his pocket— an article which readily converts into a mask, useful in disguising one’s appearance during the commission of an armed robbery but which could serve no lawful purpose under the circumstances.

The defendant urges that the facts of People v. Peters (1977), 55 Ill. App. 3d 226, 371 N.E.2d 156, and People v. Ray (1972), 3 Ill. App. 3d 517, 278 N.E.2d 170, are analogous to those herein. We disagree. Both of those cases involved attempt (burglary) charges; and, as the State correctly asserts, the proof required in attempt (burglary) would have had to include evidence of a substantial step taken towards entering the buildings. A careful reading of Peters and Ray discloses that the State’s failure in both cases to establish evidence relative to the entry of the buildings was fatal and was, in fact, the basis for reversals in both cases. People v. Peters (1977), 55 Ill. App. 3d 226, 228, 371 N.E.2d 156, 157; People v. Ray (1972), 3 Ill. App. 3d 517, 519-20, 278 N.E.2d 170, 172-73.

We believe that the facts of the instant case fall somewhere between those in People v. Brown (1979), 75 Ill. App. 3d 503, 394 N.E.2d 63, and People v. Burleson (1977), 50 Ill. App. 3d 629, 365 N.E.2d 1162. The defendant relies on Brown. Brown was an attempt (theft) case. The defendant and his companions were arrested as they were walking away from a 10-foot tall enclosure containing pop bottles, which apparently were the object of the intended offense. This court reversed the defendant’s conviction of attempt (theft) because the defendant had neither the tools nor the assistance (his companions had declined defendant’s invitation to help him get the bottles out of the enclosure) needed to carry out the intended theft. We held that, lacking such evidence, the defendant could not have been “in dangerous proximity” of carrying out the offense. In contrast to Brown, the facts of the instant case disclose that the defendant was equipped with all material needed to commit armed robbery; and, with his companion, Charles Lott, he had any assistance he may have required to get the job done.

The State relies upon People v. Burleson (1977), 50 Ill. App. 3d 629, 365 N.E.2d 1162. In Burleson the defendants cased the bank and made a practice run at it before they finally approached the bank wearing nylon stocking masks and carrying a suitcase and shotgun with the intent to commit an armed robbery. The court sustained the defendant’s conviction of attempted armed robbery primarily on the basis that the defendants were in possession of all materials needed to commit the intended offense when they approached the target of the crime. Under the circumstances, the defendants’ conduct constituted a substantial step toward the commission of the intended armed robbery.

In the present case, as aforesaid, the defendant and his companion were not observed physically proceeding in a direction progressively nearer to the gas station. They were, however, armed and in possession of all needed materials and apparently interrupted from committing an armed robbery only by the intervention of the police officers who arrived on the scene within minutes of the reported sighting of the armed men. And, because the offense of attempt may be committed at some point short of the last deed prior to committing the intended offense (People v. Woods (1962), 24 Ill. 2d 154, 180 N.E.2d 475), we affirm the trial court’s conclusion that a substantial step has been proved.

The defendant next argues that the State’s evidence also failed to prove that the defendant had the necessary specific intent to commit armed robbery. The defendant’s argument is unconvincing.

It is well-established that a defendant’s intent may be inferred from the facts and circumstances surrounding the offense. (67 Am. Jur. 2d Robbery sec. 83 (1973).) The question of intent is a factual question which is peculiarly within the province of the trier of fact to determine, and we will not reverse the trial court’s finding in this regard unless it is so improbable as to raise a reasonable doubt of the defendant’s guilt. People v. Berland (1978), 74 Ill. 2d 286, 385 N.E.2d 649, cert. denied (1979), 444 U.S. 833, 62 L. Ed. 2d 42, 100 S. Ct. 63.

In the present case, we believe that the defendant’s flight from the scene upon arrival of the police together with his unbelievable story to explain his whereabouts constitute evidence of the defendant’s consciousness of guilt. This factor corroborates the circumstantial evidence of intent to commit armed robbery— that is, unexplained possession of a stocking mask and gun while hiding very near to and behind a recently opened gas station. On these facts, we do not hesitate to affirm the judgment of the trial court finding the defendant guilty of attempt (armed robbery).

Affirmed.

ALLOY, J., concurs.

JUSTICE HEIPLE,

dissenting:

The majority opines that this case is troublesome. Indeed it is. Here we are confronted with a defendant who was obviously up to no good. He was seen hiding in the weeds in a vacant lot some 25 feet behind the Owens gas station. He had a gun. He had a black stocking in his pocket. He ran from the police. His name is Michael Terrell.

Under such circumstances, reasonable men might reasonably conclude that Michael Terrell was surely guilty of some offense. The troublesome part of this case is that “being up to no good” is not an offense under the law. The police and prosecutor believed, however, that a person in this situation must be guilty of something. Accordingly, Michael Terrell was charged with attempted armed robbery and unlawful use of weapons. After trial, a judgment of conviction was entered on the attempted armed robbery charge. No judgment of convictions was entered on the charge of unlawful use of weapons. He was sentenced to two years probation. He appeals. The majority would affirm. I dissent.

In order to sustain a conviction for attempted armed robbery, the State must prove beyond a reasonable doubt: (1) that defendant intended to commit the specific offense of armed robbery and (2) that defendant performed an act which constitutes a substantial step toward the commission of that offense. The majority acknowledge that such is the state of the law. They believe that the facts in this case bring the defendant within such law. I do not.

What Michael Terrell did has been cited in support of his conviction. It is not enough. It gives rise to nothing more than mere suspicion or supposition. It does not even come close to approaching the settled certainty that the defendant was guilty of the specific offense of attempted armed robbery beyond a reasonable doubt.

A person cannot, for instance, be held guilty of murder in the abstract. It must be murder in the concrete. That is to say, murder of a specific person. So it is with armed robbery or attempted armed robbery. It cannot be armed robbery in the abstract. It must be armed robbery of a specific person at a specific place at a specific time.

The defendant was convicted here of attempted armed robbery of the Owens gas station. Yet, the question must be asked: what did the defendant do with reference to the Owens gas station or with reference to any person on the premises thereof? The answer is nothing. What the defendant did not do in this case is more instructive than what he did do. He did not approach the Owens gas station. He did not speak to any person on or about its premises. He did not brandish his weapon. He did not remove the stocking from his pocket and pull it over his face. Although seen hiding in the weeds in an empty lot behind the station, his only observed movement was away from the station. With reference to the gun, he discarded it.

Once again we are confronted with the troublesome aspect of this case. The police, the prosecutor, the trial judge and the majority of this court recognize that the defendant was up to no good. They desire that he should be convicted of something. They have settled on attempted armed robbery. They have done so in the absence of connective and convincing evidence beyond a reasonable doubt.

It is not the defendant’s burden to prove that he did not attempt to commit armed robbery of the Owens gas station. He does not have to prove that he was hiding in the weeds hoping to bag a rabbit or a pheasant. He does not have to prove that he was waiting there for a tryst. He does not have to prove that he was intending to rob one of the other businesses in the neighborhood. Indeed, he does not have to prove anything. Is any principle more settled than that in American constitutional law? It is clear, however, that the prosecution had the burden of proving that the defendant was guilty of attempt armed robbery of the Owens gas station beyond a reasonable doubt. They never came close.

Whatever we may think of this defendant, whatever we may surmise as to his improper motivation and intentions, respect for the rule of law demands that this case be reversed. Accordingly, I dissent.


author: JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE R. PHILLIPS, Defendant-Appellant.
    First District (4th Division)
    No. 80—1196
    Opinion filed December 9, 1982.

      Steven Clark and Bruce Mosbacher, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Joel A. Stein, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Defendant, George Phillips, was charged by indictment with the murder of Dean Terrill. Following a bench trial in the circuit court of Cook County, defendant was convicted of murder and sentenced to a term of 100 to 200 years in the penitentiary.

On appeal, defendant claims (1) that he was denied his due process rights when the trial court failed to instruct the jury at defendant’s fitness restoration hearing that the State bore the burden of proving defendant fit for trial; (2) that the jury at the fitness restoration hearing should have been instructed that defendant was presumed unfit on the strength of an earlier finding of incompetence; (3) that the trial court committed reversible error by failing to order a competency hearing prior to the hearing on defendant’s motion to suppress statements despite notice of a bona fide doubt of defendant’s fitness; (4) that defendant’s confessions were admitted into evidence in violation of his constitutional rights; (5) that defendant was deprived of effective assistance of counsel; (6) that the trial court’s erroneous explanation of the factors justifying an extended term sentence prevented defendant from making a knowing and intelligent choice between alternative sentencing provisions; and (7) that the trial court abused its discretion by imposing a sentence of 100 to 200 years.

We affirm the decision of the trial court.

Facts

On November 23, 1973, Detective Douglas Moss of the Brunswick, Georgia, police department was called to the scene of an unsuccessful burglary attempt and saw defendant lying on the floor, surrounded by paramedics. After defendant received emergency medical care for two gunshot wounds he had sustained, Moss advised him of his constitutional rights and placed him under arrest. Defendant was then taken immediately to the local hospital for further treatment. Upon returning to his office, Moss checked defendant’s name and description against a national computerized list of outstanding warrants and learned that defendant was wanted in Cook County, Illinois.

On the following day, November 24, 1973, defendant informed hospital personnel that he wanted to speak with Moss. When Moss arrived at the hospital, he informed defendant that burglary and aggravated assault charges had been filed against him. After the detective again advised defendant of his rights and reminded him that he need not volunteer any information, defendant told Moss that he had murdered an attorney named Dean Terrill in Chicago. This conversation was the first indication that defendant was involved in an unsolved murder dating back to May 2, 1972. Although Moss took notes of this first statement by defendant, he testified that he did not transcribe them because defendant might have been on medication and the statement therefore inadmissible at a future trial.

Upon his release from the hospital the next day, defendant was brought to the Brunswick police station, where he was advised of his constitutional rights before he voluntarily signed a waiver form. He then gave a second statement concerning the murder of Dean Terrill. Defendant subsequently spent almost six months in the Georgia State Penitentiary for burglary and aggravated assault before being extradited to stand trial in Illinois. During the various stages of the trip to Chicago, including an airport layover and a three-hour flight during which both defendant and the two accompanying officers consumed some alcoholic beverages, defendant repeatedly brought up the subject of Terrill’s murder. After the officers advised defendant of his rights, while on the plane he made a third statement about the murder.

When the three men arrived in Chicago, defendant was taken first to the scene of the murder and then to the Area 6 Homicide office, where he made and signed his fourth statement after being advised of his rights and signing a waiver form. On June 3, 1974, defendant was indicted for the murder of Dean Terrill. He immediately filed a motion for a court-ordered psychiatric examination.

The first examination, which took place on July 25, 1974, was conducted by Dr. E. J. Kelleher, Director of the Psychiatric Institute of Cook County. Defendant was found fit to stand trial. Two weeks later, on August 15, 1974, defendant moved to be examined by another psychiatrist, Dr. Werner Tuteur; although the examination was conducted, no report was filed with the court. Three months later, defendant requested a competency hearing, and a re-examination by Dr. Tuteur was ordered; again no report was filed.

Defendant then filed a motion to suppress the four statements he had made prior to indictment. Following another psychiatric examination that indicated he was fit for trial, the hearing on the motion to suppress was held in August 1975 and the motion was denied.

During the next 15 months, defendant was granted four more psychiatric examinations. Although one doctor, Dr. Tuteur, consistently found him unfit to stand trial, a series of doctors from the Psychiatric Institute of Cook County all found defendant to be a “malingerer,” a “faker” of symptoms, and quite competent to stand trial despite the toothpicks he habitually put through his nose and ears and the “666” he had tattooed above his nose. At his November 1976 fitness hearing, defendant was found unfit to stand trial and was remanded to the custody of the Department of Mental Health for treatment.

During the ensuing 15 months, defendant requested and was granted four more psychiatric examinations by Institute psychiatrists, all of whom reported him to be competent. As a result, the State requested and was granted a fitness restoration hearing, which was held on February 15, 1978. After hearing psychiatric evidence from several doctors, the jury found defendant competent to stand trial for murder.

When trial commenced on August 28, 1978, the State introduced only two of the four confessions, those given at the Brunswick and Chicago police stations, and used them to establish the circumstances of the confrontation between defendant and Dean Terrill that led to the attorney’s death. One version described a short but initially friendly conversation between the two men, while the second version described defendant as masked from the moment Terrill opened the door. Despite the inconsistencies in the narratives of the planning and subterfuge used to get into the attorney’s apartment, the descriptions of the actual killing were the same: defendant had borrowed a gun before going to Terrill’s apartment, gained entry through a ruse, beat Terrill with the handle of the gun, and then chased him through the apartment, stabbing him with a knife until a severe wound to the throat caused asphyxiation. Defendant then took $21 from the body, left the apartment, and went home. In both versions defendant related that he consciously decided not to shoot Terrill because of fear that the noise would lead to his discovery.

In response, the defense presented no witnesses, but instead entered into the record the stipulated testimony of Dr. Tuteur. The doctor’s report stated that although he could not reach a definite conclusion about defendant’s sanity at the time of the murder, it was his opinion that defendant suffered from a schizophrenic illness of lengthy duration that “in all probability” existed prior to the murder. The State’s rebuttal consisted of stipulated testimony by an Institute psychiatrist stating that his review of defendant’s medical and psychiatric records led him to conclude that at the time of the murder defendant appreciated the criminality of his actions and could have conformed his conduct to the requirements of the law. Both sides then waived closing argument, and the trial court found defendant guilty of murder.

At the sentencing hearing, defendant was informed that because the applicable sentencing provisions had been amended between the date of the murder and the date of trial, he had the option of choosing between the two sentencing schemes. After the court explained the differences between the two provisions, defendant consulted with his attorney and chose to be sentenced under the earlier statute. The State argued in aggravation that the murder not only had occurred during a premeditated armed robbery, but also was characterized by wanton violence and cruelty. Defendant had an extensive criminal background, including convictions of aggravated assault, criminal trespass to a vehicle, possession of narcotics, multiple convictions of theft and burglary, and parole violations. In mitigation, the defense reminded the court of the defendant’s social background, childhood deprivations, and long-term emotional problems. The trial court, after noting that defendant was a dangerous person lacking rehabilitative potential, sentenced defendant to a term of not less than 100 nor more than 200 years in the Illinois Department of Corrections.

Opinion

I

Defendant first claims that the trial court erred by failing to instruct the jury at defendant’s fitness restoration hearing that the State bore the burden of proving defendant competent to stand trial. (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 2—l(i).) We initially note that by failing either to tender an alternate instruction or to object to the instruction as given, defendant has waived the right to raise the issue on appeal unless the omission amounts to plain error. (People v. Garza (1981), 92 Ill. App. 3d 723, 415 N.E.2d 1328; 73 Ill. 2d R. 615(a).) “It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.” Henderson v. Kibbe (1977), 431 U.S. 145, 154, 52 L. Ed. 2d 203, 212, 97 S. Ct. 1730, 1736.

Our review of the record demonstrates that not only was the jury properly instructed that the State bore the burden of proving defendant fit for trial by a preponderance of the evidence, but also that the State met its burden. The waiver exception here argued by defendant is applicable only “to correct ‘grave errors’ ” or where the evidence is closely balanced. (People v. Roberts (1979), 75 Ill. 2d 1, 14, 387 N.E.2d 331, 337.) Defendant claims that the portion of the instruction directing the jury to find defendant unfit if the defense had proved that fact by a preponderance of the evidence was just such a “grave error” in that the burden of proof was unconstitutionally shifted to the defense. People v. McCullum (1977), 66 Ill. 2d 306, 362 N.E.2d 307.

The cases cited by defendant to support his claim that reversal is required were decided under a statute that placed on a defendant the burden of proving his own unfitness. (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 2—l(i).) The amendment of the statute in 1977 made it clear that the State always bears the burden of proving fitness. (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 2—l(i).) Therefore, the earlier, reversed decisions reflected either a specific instruction that defendant bore the evidentiary burden or a presumption that the trial judge had followed the unconstitutional statute. (See People v. Thompson (1978), 60 Ill. App. 3d 198, 376 N.E.2d 442; People v. Hubert (1977), 51 Ill. App. 3d 394, 366 N.E.2d 909.) Here, the jury was properly instructed that defendant could be found fit only if the State had proved that fact by a preponderance of the evidence. Although we agree that omission of the second portion of the instruction would have been preferable, the additional information did not unconstitutionally shift the burden of proof to defendant. Also, the opening and closing statements by.both prosecution and defense reflect the recognition that the burden of proof was on the State. Accordingly, we find no plain error in the instruction given.

Defendant also cites People v. Roberts (1979), 75 Ill. 2d 1, 387 N.E.2d 331, to support his claim that the closely balanced evidence at the hearing requires application of the rule of waiver even though no objection was raised before the trial court and no alternative instruction was tendered. Our examination of the record, however, establishes that defendant’s claim that the evidence was closely balanced is without support. The State presented Drs. Kaplan and Reifman to testify to defendant’s competence. In addition, several other reports of court-ordered examinations had consistently confirmed defendant’s competence. In contrast, the defense presented its case for unfitness through the testimony of Dr. Tuteur, the only doctor to find defendant incompetent at any point during the lengthy process from indictment to trial. Further, Dr. Tuteur mitigated the effect of his own testimony by stating that his opinion of defendant’s mental condition would not change even if he learned that defendant had consciously controlled his behavior to simulate unfitness. Under such circumstances, defendant cannot claim that the evidence was so closely balanced that the rule of waiver should be applied to correct defense counsel’s failure to raise any objection at the hearing. We therefore hold that defendant has waived his right to claim reversible error based on faulty jury instructions.

II

The second error claimed by defendant to necessitate reversal was the failure of the State to instruct the jury at the fitness restoration hearing that because defendant had been found qnfit IV2 years earlier, the presumption of incompetence continued. Defendant argues that People v. Rangel (1982), 104 Ill. App. 3d 695, 432 N.E.2d 1141, supports his claim that a presumption of incompetence continues if the mental illness is continuing and the prior adjudication is not too remote. (People v. Barkan (1970), 45 Ill. 2d 261, 259 N.E.2d 1.) What defendant failed to note, however, was that, absent these two circumstances, not only is a jury at a restoration hearing not told of the prior adjudication, but no restoration hearing need be held at all. (See People v. Santoro (1973), 13 Ill. App. 3d 426, 301 N.E.2d 175 (abstract of opinion).) The only function of a restoration hearing is to determine whether the case presented by the State establishes by a preponderance of the evidence that a defendant is currently fit for trial; presumptions arising from past adjudications have no impact on the hearing other than to ensure that the restoration hearing itself is held before a defendant may be tried. We therefore find no error in the failure to instruct the jury at the restoration hearing that defendant was presumed incompetent.

Ill

Defendant next claims that the trial court erred in not holding a fitness hearing prior to the hearing on the motion to suppress his four confessions despite notice of a bona fide doubt of his competency. (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 2—1(c).) Because no fitness hearing was held until after the suppression hearing, defendant argues that a new suppression hearing should have been held before trial began. We find defendant’s argument devoid of merit.

In Illinois, a defendant has the mental capacity to stand trial if he understands the nature and purpose of the proceedings against him and can cooperate with his counsel in conducting his defense in a reasonable, rational manner. (People v. Hammond (1970), 45 Ill. 2d 269, 259 N.E.2d 44; Ill. Rev. Stat. 1977, ch. 38, par. 1005-2 — 1(a).) If a bona fide doubt exists concerning a defendant’s fitness to stand trial or to be sentenced, “the court shall order that a determination of that question be made before further proceedings.” (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 2—1(c).) However, the court must order a fitness hearing only when facts raising a bona fide question of a defendant’s fitness are brought to its attention. {People v. Foster (1979), 76 Ill. 2d 365, 392 N.E.2d 6.) As recently affirmed in People v. Jones (1982), 109 Ill. App. 3d 120, 440 N.E.2d 261, neither the necessity for psychiatric treatment nor even prior commitment to a mental hospital necessarily raises a bona fide doubt of his ability to understand the proceedings or to assist in his defense. Here, the only notice given to the court before the hearing on the motion to suppress was one sentence in the petition for a competency hearing, an unsupported claim by defense counsel that a Dr. Tuteur had found defendant unfit for trial. As noted earlier, no report from Dr. Tuteur had been filed with the court, so at the time of the hearing on the motion to suppress, the only evidence before the trial court consisted of a series of reports affirming defendant’s competency.

Whether a bona fide doubt has been raised is a matter committed to the sound discretion of the court, and a reviewing court will not disturb the trial court’s determination of that question absent a clear abuse of that discretion. (People v. Pridgen (1967), 37 Ill. 2d 295, 226 N.E.2d 598.) A mere assertion by defense counsel that he has reason to believe defendant is incompetent is insufficient to create a bona fide doubt of defendant’s fitness. (People v. Foster (1979), 76 Ill. 2d 365, 392 N.E.2d 6; People v. Slaughter (1970), 46 Ill. 2d 114, 262 N.E.2d 904.) We agree with the State that the court was well within its discretion in deciding that no bona fide doubt of defendant’s fitness had as yet been raised.

Our review of the record discloses that at no time before, during, or after the suppression hearing did defendant ever suggest that a fitness hearing should have preceded the suppression hearing. Further, and more important, the record in no way supports defendant’s claim that the court had a bona fide doubt of his competence before the suppression hearing. Although defendant had been examined twice by Dr. Tuteur and. apparently found unfit both times, neither of those reports had been filed with the court. The only psychiatric reports before the court at the time of the suppression hearing were the three reports by Drs. Kelleher and Rappaport of the Psychiatric Institute maintaining that defendant was fit. Not until 14 months after the suppression hearing did defendant file Dr. Tuteur’s adverse report. Therefore, because no bona fide question of defendant’s competence had been brought to the attention of the court, we agree with the prosecution that no fitness hearing was necessary prior to the suppression hearing. People v. Dominique (1980), 86 Ill. App. 3d 794, 408 N.E.2d 280.

IV

Defendant next argues that the trial court erred in denying his motion to suppress his confessions because they were neither voluntary nor made after a knowing and intelligent waiver of his rights. We find no merit in this claim.

Even a cursory review of the record discloses that defendant initiated all conversations concerning the murder and that the first confession came as a complete surprise to the Brunswick police officer defendant had summoned. Further, defendant was repeatedly admonished regarding his constitutional rights each time he began to speak about the murder, and each time he knowingly and voluntarily waived them. As in People v. Kraman (1981), 96 Ill. App. 3d 390, 400, 421 N.E.2d 346, 354, the “police did not initiate any questioning but only responded with questions to defendant’s volunteered statements. Defendant himself ‘let the cat out of the bag.’ ” A confession is properly admissible if it does not appear to the trial court that the defendant’s will was overborne prior to or at the time of the statement. (People v. Lewis (1979), 75 Ill. App. 3d 259, 393 N.E.2d 1098.) We find nothing in the record to indicate that defendant’s will was overborne in any way.

Although defendant moved to suppress all four confessions, he does not maintain that the second and fourth statements, the only two used at trial, were in themselves involuntary. Instead, he attempts to disqualify them on the ground that they were each “fruit of [a] poisonous tree” (Nardone v. United States (1939), 308 U.S. 338, 341, 84 L. Ed. 307, 312, 60 S. Ct. 266, 268), namely, the first and third confessions respectively. Defendant argues that because his first confession was rendered involuntary by medication and the third by liquor, the confessions subsequent to each must be suppressed. We find defendant’s argument to be without merit.

A statement made by a defendant taking medication will be considered involuntary only if the subsequent statement “is, in fact, induced by the administration of a drug.” (People v. Kincaid (1981), 87 Ill. 2d 107, 117, 429 N.E.2d 508, 511.) Even if the officer hearing the first statement in the hospital believed that possible medication might render the statement inadmissible at trial, that belief is irrelevant to the question whether the statement was in fact voluntary and properly admissible at trial. (87 Ill. 2d 107, 429 N.E.2d 508.) Further, the extension of the effect of possible medication to a second confession is unsupportable given the facts in the instant case. Consequently, we find the trial court properly denied defendant’s motion to suppress his first and second confessions.

On the other hand, defendant moved to suppress his third and fourth confessions on the ground that the third was the product of intoxication; indeed, defendant claims the two officers accompanying him from Georgia to Chicago actually “administered” the alcohol as part of a plan to make him confess. Such an accusation is unsupportable. “[I]n cases where the evidence plainly demonstrates that a suspect is so grossly intoxicated that he no longer has the capacity to knowingly waive his rights, suppression of any statements made while he was in such condition is warranted.” (People v. Moon (1976), 38 Ill. App. 3d 854, 860, 350 N.E.2d 179, 183.) However, where, as here, evidence of “such gross intoxication” is less than clear, the fact that the suspect has been drinking “does not make his confession inadmissible but goes only to the weight to be accorded it.” (38 Ill. App. 3d 854, 860, 350 N.E.2d 179, 183.) As we decided concerning the first and second confessions, the extension of the effect of possible intoxication from the third to the fourth confession has no basis in fact.

In the case of both drugs and alcohol, self-administered or not, the sole question is whether defendant’s waiver of his rights was the exercise of a free and rational will. That question is one of fact, and “[i]t is for the [trier of fact] alone to determine the credibility of the witnesses and the weight of the evidence on controverted questions of fact.” (Warren v. Johnson & Johnson (1976), 39 Ill. App. 3d 1029, 1034, 351 N.E.2d 415, 419.) “In nonjury cases the credibility of the witnesses and the weight afforded their testimony are questions to be determined by the trial court, and a reviewing court will not substitute its judgment *** unless the findings of the trial court are against the manifest weight of the evidence.” Guzell v. Kasztelanka Cafe & Restaurant, Inc. (1980), 87 Ill. App. 3d 381, 385, 408 N.E.2d 1124, 1127.

In the instant case, there was no evidence that defendant' was intoxicated at the time of his third confession. Even when there is conflicting evidence concerning a defendant’s intoxication, the trial court may properly find the statement to be “the product of a rational intellect and free will.” (People v. Kelley (1973), 10 Ill. App. 3d 193, 195, 293 N.E.2d 158, 162.) Consequently, we find no error in the trial court’s .refusal to suppress defendant’s third and fourth confessions.

V

Defendant next claims that he was denied his constitutional right to a fair .trial because of the ineffective assistance of his counsel. A review of the conduct of defense counsel at trial, however, demonstrates that defendant received effective representation as far as the facts of the case permitted. It appears clear to us that what defendant is arguing is that merely because his appointed counsel did not prevail at trial, counsel was ineffective.

A defendant, while entitled to assistance of counsel, “is entitled to competent, not perfect or successful, representation.” (People v. Murphy (1978), 72 Ill. 2d 421, 438, 381 N.E.2d 677, 685.) “The inadequacy of a defendant’s trial counsel entitles him to a new trial if his appointed counsel was actually incompetent, as reflected in the performance of his duties as trial attorney, and if this incompetence produced substantial prejudice to the defendant without which the result of the trial would probably have been different.” (People v. Greer (1980), 79 Ill. 2d 103, 120-21, 402 N.E.2d 203, 211.) However, appellate review of a defendant’s representation does not extend to matters involving the exercise of judgment, discretion, or trial tactics; “errors in judgment or trial strategy do not establish incompetency.” People v. Murphy (1978), 72 Ill. 2d 421, 437, 381 N.E.2d 677, 685.

The record fully demonstrates that defendant’s counsel ably pursued all available avenues and defenses. The fact that counsel was unsuccessful is merely a reflection of the evidence, not counsel’s incompetence. Defendant has failed to present one example of so-called incompetence that, if changed, would have changed the result of the trial. Accordingly, we hold that defendant was not denied his right to effective assistance of counsel.

VI

Defendant’s final claim of error focuses on the procedures followed during the sentencing hearing and the term of imprisonment to which defendant was sentenced. Our review of the record and of the factors in aggravation and mitigation argued at the sentencing hearing has convinced us that not only was defendant correctly informed of the differences between the current and former sentencing provisions, he had the specific advice of counsel before he exercised his option to be sentenced under the statute in effect at the time of the offense rather than the amended statute in effect at time of trial. (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1008 — 2—4(b).) It is the duty of defense counsel, not the trial judge, to explain the possible alternative sentences to the defendant; consequently, the trial court’s mistaken explanation of the factors that would justify imposition of an extended term under the amended statute does not warrant vacating defendant’s sentence. (People v. Cross (1980), 84 Ill. App. 3d 868, 406 N.E.2d 66.) We particularly note that while the judge listed as justification for imposing an extended term several factors that do not so operate, he did inform defendant of the two factors that do justify an extended term. Overexplanation hardly entitles defendant to a re-election and resentencing, especially when he fully consulted with counsel before making his unambiguous election. (84 Ill. App. 3d 868, 871, 406 N.E.2d 66, 69.) Finally, as noted in People v. Kurena (1980), 87 Ill. App. 3d 771, 781, 410 N.E.2d 277, 286, defendant’s decision to be sentenced in accord with the former statute leaves no “serious doubts as to [the] validity of his choice for he chose the law with the lesser minimum sentence.” Accordingly, we find no reversible error in the trial court’s explanation of the two sentencing alternatives.

Last, defendant complains that his indeterminate sentence of 100 to 200 years is excessive. We initially note that it is not the function of a reviewing court to serve as a sentencing court; absent a clear abuse of discretion by the trial court, a sentence must not be disturbed on review. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) The trial court, which is charged with the fashioning of a sentence that strikes the appropriate balance between protection of society and rehabilitation of the offender, is in the best position to determine the appropriate sentence. 82 Ill. 2d 268, 279-80, 412 N.E.2d 541, 547.

At the sentencing hearing, the trial court carefully considered all relevant factors in aggravation and mitigation before imposing sentence. Because defendant at age 19 had already been convicted of several crimes, had refused to cooperate in the preparation of the presentence investigation report, and had carefully prepared for the crime, we find the sentence to be well within the bounds of sound judicial discretion. Indeed, the trial court, noting that defendant himself confessed that he had stabbed Terrill until “he bleed like a stuck pig,” described the crime as “viciously executed” and “willful and wanton and cruel in nature.” The court then concluded,

“In view of George Phillips’ background, the nature and circumstances of the crime and the conduct of George Phillips, that he is a very dangerous person; that he lacks rehabilitative potential, and he should never be allowed to walk the streets of our society again.”

We recognize, as did the trial court, that defendant’s "brutal or heinous behavior indicative of wanton cruelty” would justify a sentence of natural life imprisonment under the amended sentencing code. (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 — 8—1(a)(1).) Consequently, the trial judge properly determined that a sentence of 100 to 200 years would be appropriate. We find no abuse of discretion in this determination and therefore will not disturb the sentence on review.

Finding no error, we affirm the decision of the trial court.

Affirmed.

JOHNSON, P.J., and JIGANTI, J., concur.