author: JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SCOTT STEVE PLANTINGA, Defendant-Appellant.
    First District (4th Division)
    No. 83—2295
    Opinion filed April 4, 1985.

      Sheldon L. Banks, of Chicago (Glenn E. Gutsche and Mark W. Solock, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Cuomo, and Joan M. O’Brien, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Defendant was charged with rape, deviate sexual assault, unlawful restraint and aggravated battery. Following a jury trial, he was found guilty of unlawful restraint and sentenced to a maximum term of three years in the Illinois Department of Corrections.

On appeal, defendant contends: (1) that he was not proved guilty beyond a reasonable doubt, (2) that he was denied a fair trial due to the impropriety of the prosecutor’s closing argument, (3) that the trial judge committed reversible error by prematurely giving a Prim instruction, and (4) that the trial judge abused his discretion by sentencing defendant to the maximum statutory term of imprisonment.

We affirm the conviction and sentence.

Background

The testimony adduced at trial revealed the following:

The victim attended a Halloween party with her boyfriend, Don O’Brien, on the night of October 31, 1981. The victim and O’Brien left the party at approximately 3:30 a.m. She dropped off her boyfriend and proceeded to visit a bar where her brothers worked. She arrived at the bar around 4 a.m., had one beer and left an hour later.

The victim then drove to her boyfriend’s parents’ home at 841 West Oakdale and parked her car in the driveway. Having no house key and realizing that her boyfriend’s brother, John O’Brien, would soon be coming home from work, the victim remained in her car and waited for someone to arrive and let her into the house.

While the victim was waiting, she fell asleep. She testified that the next thing she knew, the car door opened, causing the dome light in the car to go on. When the victim turned to see who had entered the car, she saw defendant, who got into the car, placed his hand over her mouth and said, “Shut up or I’ll kill you.” Defendant then struck the victim with his other hand and told her, “Don’t say anything *** you’re going to do what I say and you are going to like it.” Defendant then partially undressed the victim, who attempted to open the car door, only to find that it was locked. The victim testified that defendant then started choking her, banged her head against the car window two or three times, and had intercourse with her. Defendant then attempted anal penetration, but this attempt was interrupted by the sound of a police siren.

Upon hearing the siren, defendant pushed the victim’s head down and laid on top of her until the siren passed. He then told the victim that he “can’t do this anymore,” got out of the car, and fled. The victim stayed down in the car for awhile and then rang the doorbell at the O’Brien home. The victim’s boyfriend’s sisters let her in and then drove her to Columbus Hospital, where she remained for the next five days, suffering from a severe concussion.

Approximately an hour after her arrival at the hospital, the victim gave a police officer a description of her assailant. She described him as a man in his midtwenties to 30, moustached, between 5 and 6 feet tall, weighing approximately 180 pounds, wearing blue jeans, a white button-down collared shirt, a dark velour vest over the shirt, and a wristwatch with a square black face and a dark leather band. The police report made no mention of a moustache. She was uncertain as to her attacker’s height because he was seated throughout the incident.

On November 10, 1981, the victim went to Area 6 police headquarters and was shown a photo array from which she positively identified defendant. On March 13, 1981, the victim viewed a lineup at the police station and again positively identified defendant. She also made an in-court identification of defendant as the man who restrained her.

John O’Brien, a resident of 841 West Oakdale, testified that on November 1,1981, at approximately 5 a.m., he was returning from work and looking for a parking space in the vicinity of 841 West Oakdale. He saw two cars in his driveway, that of his parents and that of the victim. He also saw defendant “hanging around” in front of the house. O’Brien stated that he had to circle the block twice to find a parking space and that the first time around, he saw defendant getting out of a car directly across the street from 841 West Oakdale. Defendant then proceeded across the street to the side on which the victim’s car was parked. The second time O’Brien circled the block, he saw defendant in front of the Oakdale house, walking down the sidewalk towards the driveway of 841. O’Brien testified that there was a street light directly across from 841 West Oakdale. O’Brien finally found a parking space some time between 5 a.m. and 5:30 a.m., and walked toward his house. He reported that he did not see anyone in either of the cars parked in his driveway, but explained that he did not have to pass the parked cars as he walked into the house.

At the conclusion of the State’s case in chief, defendant moved for a directed finding. The trial court granted the motion only as to the count for deviate sexual assault.

Defendant testified that on October 31, 1981, he had driven from his home in Michigan to a friend’s apartment at 809 West Oakdale in Chicago, to attend a Halloween party. He arrived at approximately 9:30 p.m., wearing blue jeans and a white turtleneck shirt. His friends made him paint his face white with a star on it. He stated that he wore the makeup all evening and did not take it off until he went to bed. Defendant had a moustache, stands approximately 6 feet 3 inches tall, and weighs around 210 pounds. He denied ever owning a dark-faced wristwatch with a dark leather band or a dark velour vest. However, on cross-examination, when faced with a photograph and the garment itself, he admitted owning both items.

Defendant further testified that he left the Halloween party at 809 West Oakdale between 12:30 a.m. and 1 a.m. on November 1, 1981, and went to the Rush Street area with three friends. The group left the Rush Street area and went back to 809 West Oakdale at approximately 5 a.m. Defendant stated that he parked his car on Oakdale, and he and his friends walked across the street, where they saw the victim sitting on the curb in front of 841 West Oakdale. Defendant and the others asked her if she was alright and helped her get into her car. The group then returned to the apartment, where two others were present.

One of those present at the Oakdale apartment was Richard Ishmael, a friend of defendant’s from Purdue University. Ishmael testified that when defendant and the others returned to the apartment, defendant was still wearing white face makeup. The group informed Ishmael about their activities on Rush Street and told him about the young girl they had seen sitting outside on the curb. Ishmael and defendant were to share the couch downstairs and sat around talking until 6 a.m., after the others had gone upstairs to bed. Ishmael stated that around that time, defendant left the apartment and went outside to get his shaving kit. He stated that defendant was gone from the apartment for approximately five minutes and that when he returned, he was still wearing the white makeup but that his moustache was visible. Defendant then washed off the makeup, and he and Ishmael went to sleep on the downstairs couch.

Defendant’s testimony was corroborated by two of the friends who were with him on November 1, 1981. The third companion did not testify. On rebuttal, the victim denied ever having sat on the curb that morning and ever having seen or spoken to defendant and his friends.

The jury found defendant not guilty of rape and aggravated battery but guilty of unlawful restraint. Defendant was sentenced to a three-year term in the Illinois Department of Corrections. He now appeals.

Opinion

I

Defendant’s first contention on appeal is that he cannot, as a matter of law, be convicted of unlawful restraint because it was “incidental to the perpetrator’s primary goal, which was to commit rape.” As authority for this proposition, defendant relies on People v. Kuykendall (1982), 108 Ill. App. 3d 708, 439 N.E.2d 521, which holds that unlawful restraint is not a lesser included offense of home invasion. Given the facts of the instant case, in which defendant was neither charged with nor convicted of home invasion, we find People v. Mc-Cann (1979), 76 Ill. App. 3d 184, 394 N.E.2d 1055, in which this court held that unlawful restraint is a lesser included offense of rape, to be much more instructive. Following McCann, we find that defendant’s conviction for unlawful restraint is not invalid as a matter of law.

II

Defendant next contends that he was not proved guilty beyond a reasonable doubt of unlawful restraint. He bases this contention, in part, on the fact that he was acquitted of rape and aggravated battery, concluding that such acquittal reveals that the jury found the victim’s testimony to be incredible. Because acquittal on these other charges and conviction of unlawful restraint are not legally inconsistent verdicts, we need only determine if there was sufficient evidence presented to the jury to enable it to find defendant guilty beyond a reasonable doubt. Our review of the record convinces us that there was.

The testimony of a single witness, if positive and credible, is sufficient to convict, even though it is contradicted by the defendant. (People v. Lampton (1982), 108 Ill. App. 3d 41, 438 N.E.2d 915.) Defendant here claims that the victim’s testimony is incredible because of the discrepancy between certain aspects of her trial testimony and the information provided in the initial police report of the incident. We note, initially, that the officer who made out the preliminary report described it as a “barebone data report.” We further note that the fact that the report does not mention that the assailant had a moustache, a fact upon which defendant heavily relies, is not by itself sufficient to create a reasonable doubt as to his guilt. Where the identification of the accused is positive, precise accuracy in describing facial characteristics .does not create a reasonable doubt as to the defendant’s guilt. (People v. Egan (1978), 65 Ill. App. 3d 501, 382 N.E.2d 477.) Here, the victim identified defendant on three separate occasions: from a photo array, in a lineup, and at trial. Moreover, the general physical description she provided of defendant was essentially accurate and detailed, including the type and color of the clothing he wore and his wristwatch. She had ample time to observe defendant in well-lighted conditions. In addition, defendant admits being at the location of the incident at the time in question. He was also identified as being at the location by several other witnesses, one of whom testified that defendant did leave the apartment at 809 West Oakdale around the time the crime was committed.

Defendant attaches great significance to the fact that John O’Brien walked past the victim’s car at the time the attack was in progress without noticing or hearing anything. The State offers the plausible explanation that the attack may not have occurred at the very moment O’Brien walked by the victim’s car; or, that the attack may have been taking place, but O’Brien may not have seen or heard anything. Either of these explanations is reasonable and does not render the victim’s testimony incredible.

In light of the victim’s positive and detailed identification of defendant, whom she observed at close range in well-lighted conditions, and the other testimony adduced at trial, which places defendant at the scene of the crime and shows that he had the opportunity to commit the crime during a crucial interval that corresponds to the time the incident occurred, we find that the jury had ample evidence to convict defendant of unlawful restraint.

Ill

Defendant’s next contention on appeal is that he was denied a fair trial due to the prosecutor’s improper closing argument. Defendant first complains of three comments made by the prosecutor concerning the failure of an alibi witness to testify at trial. The propriety of a prosecutor’s comment on defendant’s failure to call an alibi witness was addressed by our supreme court in People v. Williams (1968), 40 Ill. 2d 522, 240 N.E.2d 645, cert, denied (1969), 393 U.S. 1123, 22 L. Ed. 2d 129, 89 S. Ct. 1004, in which it stated that Moreover, when alibi witnesses, such as the witness in the present case, are injected into the case by defendant, they are deemed unavailable to the prosecution and comment on the failure of such witnesses to testify is proper. People v. Gaines (1982), 104 Ill. App. 3d 974, 433 N.E.2d 970.

“though failure to call a witness or produce evidence may not be relied on as substantial proof of the charge, nonetheless, if other evidence tends to prove the guilt of a defendant and he fails to bring in evidence within his control in explanation or refutation, his omission to do so is a circumstance entitled to some weight in the minds of the jury, and, as such, is a legitimate subject of comment by the prosecution.” (40 Ill. 2d 522, 529, 240 N.E.2d 645, 649.)

Applying the applicable law to the prosecutor’s comments in the instant case, we find that the several comments objected to by defendant regarding his failure to call a certain alibi witness were not error.

Defendant also claims as error the prosecutor’s comment made in rebuttal closing argument, that “the presumption of innocence was pricked and it broke by defendant and his witnesses being caught in a series of lies.” Defendant claims that this comment is a complete misstatement of Illinois Pattern Jury Instruction, Criminal, No. 2.03 (2d ed. 1971), which instructs the jury on the presumption of innocence, reasonable doubt, and the burden of proof generally.

It is clear from the record that the prosecutor’s remark about the presumption of innocence being pricked and broken was in response to defense counsel’s analogy of the presumption as a “bubble over the head of any defendant.” Where counsel for the accused, in closing argument to the jury, invites response to counter his own analogy, he cannot complain on appeal that the response is improper. (People v. Hicks (1981), 101 Ill. App. 3d 238, 427 N.E.2d 1328.) Here, defense counsel invited the response that countered his analogy, and he cannot now on appeal claim that defendant was prejudiced thereby.

The last prosecutorial comment defendant claims as error is that part of the closing argument when the prosecutor stated that “it’s the State’s Attorney’s job if we can clear somebody of a crime we don’t prosecute. I mean we just don’t run over people.” Defendant claims that this comment denigrated the presumption of innocence and the State’s burden, as well as being an interjection by the prosecutor of his own testimony. We find no merit in this contention.

The objected-to comment in the instant case is similar to a comment made in People v. Garcia (1981), 95 Ill. App. 3d 792, 801, 420 N.E.2d 482, 489, in which the prosecutor told the jury during closing argument that the State’s Attorneys did not need to “trump up cases that didn’t exist to keep their jobs.” The court in Garcia found the comment to be proper because invited by the defense attorney’s remarks in closing arguments insinuating that certain witnesses were liars. Here, as in Garcia, the defense in its closing argument suggested that the State was attempting to convince the jury that as soon as the defendant witnesses took the stand they became “great liars, they become a Pinocchio.” In light of these remarks by defense counsel, we find the prosecutor’s comment to be invited and not error.

IV

Defendant next claims that the trial judge committed reversible error by giving the jury a Prim instruction prematurely, prior to its becoming deadlocked. The State maintains that the trial court’s decision to give the Prim instruction was a proper exercise of its discretion. We agree with the State.

The trial court has great latitude as to when a Prim instruction should be given. (People v. Cowan (1984), 122 Ill. App. 3d 394, 461 N.E.2d 605, aff’d (1985), 105 Ill. 2d 324.) The test is whether, upon examination of all the facts, the language used in the instruction coerced or interfered with the deliberation of the jurors to the prejudice of the defendant or hastened the verdict. (People v. Iverson (1973), 9 Ill. App. 3d 706, 292 N.E.2d 908.) There is less danger of coercion when the instruction is given to a jury which has not reached a deadlock. People v. Wilson (1976), 37 Ill. App. 3d 560, 346 N.E.2d 161.

Based on the language of the instruction given to the jury in the instant case, the fact that the jury deliberated three additional hours after the Prim instruction was given, and the fact that the jury was not deadlocked at the time the instruction was given, we find that the giving of the instruction here was neither premature nor coercive. Neither the time interval after which the instruction was given, 8V2 hours, nor the foreman’s indication that the jury was making progress towards a verdict negates this finding. People v. Canale (1972), 52 Ill. 2d 107, 285 N.E.2d 133 (supplemental instruction given after seven hours of deliberations and foreman’s statement that a verdict could be reached in a reasonable period of time).

V

Defendant’s final contention on appeal is that the trial judge abused his discretion by imposing a three-year sentence, the statutory maximum, for unlawful restraint and by not considering defendant’s rehabilitative potential in light of the testimony adduced on his behalf. The State maintains that the trial judge considered the arguments presented in aggravation and mitigation and that the sentence, which falls within statutory limits (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8—1(a)(7)), was a proper exercise of the trial court’s discretion. We find merit in the State’s position.

The Illinois Supreme Court has repeatedly emphasized the undesirability of a reviewing court’s substituting its judgment or preference as to punishment for that of the sentencing court, noting that the trial judge is ordinarily best situated to tailor a sentence to the needs of the case. (People v. Hicks (1984), 101 Ill. 2d 366, 462 N.E.2d 473; People v. Pittman (1982), 93 Ill. 2d 169, 442 N.E.2d 836; People v. Vance (1979), 76 Ill. 2d 171, 390 N.E.2d 867.) The trial judge’s decisions in regards to sentencing are entitled to great deference and weight, and absent an abuse of discretion by the trial court, a sentence may not be altered upon review. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

To modify a sentence within the statutory limits, it must appear to an appellate court that the sentence imposed is a clear departure from the spirit and purpose of the fundamental law and the requirement of the constitution that the sentence be proportionate to the nature of the offense and measure possibilities for rehabilitation. (People v. Henderson (1977), 45 Ill. App. 3d 798, 359 N.E.2d 909.) A sentence appealed from is presumed to be proper, and only where such presumption has been rebutted by an affirmative showing of error will a reviewing court find it to be an abuse of discretion. (People v. Spinks (1980), 80 Ill. App. 3d 1096, 400 N.E.2d 634.) While we note the correctness of defendant’s assertion that a sentencing judge must give adequate consideration to a defendant’s rehabilitative potential as well as to the seriousness of the offense, we find that here, defendant has failed to rebut the presumption of propriety afforded to the sentence imposed by the trial court.

Where evidence is offered in mitigation, the sentencing judge will be presumed to have considered it unless there is some statement in the record, aside from the sentence imposed, that would tend to indicate otherwise. (People v. Goodman (1983), 116 Ill. App. 3d 125, 451 N.E.2d 607.) Here, at the sentencing hearing, defense counsel set forth all of the factors in defendant’s favor, factors that sufficiently provided the trial court with a basis upon which to assess defendant’s rehabilitative potential. In addition, the court heard lengthy testimony from various defense witnesses as to defendant’s character and reputation in the working community. The trial court’s awareness and consideration of this testimony and these mitigating factors was made manifest by its comments that it considered “the evidence received in the trial of the case and *** the matters offered by the defendant in mitigation.”

Defendant points to no statement in the record that tends to indicate that the trial court failed to consider the matters offered in mitigation. Defendant merely points out various specific factors that the trial court failed to enunciate. A trial judge need not, however, state every factor he considered in determining a defendant’s sentence. (People v. Gomick (1982), 107 Ill. App. 3d 505, 437 N.E.2d 892.) Defendant has therefore failed to rebut the presumption that the trial court failed to consider the evidence in mitigation before it.

Moreover, we are unconvinced by defendant’s argument that the trial court committed error by considering defendant to be guilty of aggravated battery. The court’s statement that defendant committed a “serious battery” on the victim refers not, as is clear from the context of the statement, to the crime of aggravated battery but rather to the court’s finding that the victim “sustained serious trauma as a result of the wrongful conduct of the defendant.” The degree of harm caused to the victim is, of course, a proper factor for consideration in sentencing a defendant. (People v. Bone (1982), 103 Ill. App. 3d 1066, 432 N.E.2d 329; Ill. Rev. Stat. 1983, ch. 38, par. 1005-5-3.2.) We therefore find that the court’s allusion to a serious battery does not constitute an affirmative showing of error.

For all of the above reasons, we affirm the decision of the circuit court.

Affirmed.

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


source: Caselaw Access Project

author: PRESIDING JUSTICE McGLOON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL CARTER, Defendant-Appellant.
    First District (1st Division)
    No. 82—2674
    Opinion filed April 8, 1985.

      Steven Clark and Scott Graham, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Jane E. Liechty, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McGLOON

delivered the opinion of the court:

After a jury trial, defendant, Paul Carter, was convicted of rape, deviate sexual assault and two counts of armed robbery. Defendant was sentenced to extended terms of 40 years’ imprisonment on each conviction to be served concurrently. On appeal, defendant contends: (1) there was a conflict of interest between himself and the assistant public defender; (2) he was prejudiced by the admission of improper evidence; (3) he was prejudiced by improper argument by the prosecutor; (4) he was denied effective assistance of counsel; and (5) the extended term sentences were improper.

We affirm.

After the completion of discovery and on the day scheduled for the beginning of trial, defendant presented a pro se motion to the court for appointment of a “bar association lawyer” or in the alternative for a continuance to retain private counsel. Defendant did not present any coherent reason why he was dissatisfied with the assistant public defender who was representing him. Defendant acknowledged his attorney’s competence but stated, “It is a conflict of interest between me and her. I don’t want her to be my attorney.” The assistant public defender informed the court she was prepared for trial and that she believed any further delay would not be warranted. The trial court denied defendant’s motion to appoint alternate counsel but granted defendant a continuance of almost six weeks to retain private counsel or to prepare to represent himself. Immediately before adjournment, the assistant public defender stated, “I’m not giving you the police reports, sir.” The judge then stated “Okay, fine.” On the next scheduled court date, defendant was represented by the original assistant public defender and another assistant.

Defendant argues the above facts indicate there existed a conflict of interest between him and the assistant public defender.

A defendant is not entitled to court appointed counsel of his choice. (People v. Lewis (1981), 88 Ill. 2d 129, 430 N.E.2d 1346.) An indigent defendant is entitled to an attorney other than the public defender only upon showing a good cause, and it is within the discretion of the trial court to deny such request. (People v. Tucker (1981), 99 Ill. App. 3d 606, 425 N.E.2d 511.) A general dissatisfaction with his appointed counsel does not establish a conflict of interest between the defendant and counsel. People v. Johnson (1981), 98 Ill. App. 3d 228, 424 N.E.2d 610.

In the case at bar, defendant did not show any good reason why he was entitled to an appointed counsel other than the public defender. Furthermore, he did not show any conflict of interest between himself and the assistant public defender. In addition, the trial court granted defendant sufficient time to retain private counsel or to prepare to represent himself. We find no error here.

A complaining witness testified she was waiting for an elevator with her 18-month-old child. An elevator arrived, but defendant, who was on the elevator, did not get off. The witness and her child got on the elevator with several other people. After some teenagers left the elevator, the witness with her child, another woman with two children, and defendant were alone in the elevator. Defendant pushed the emergency stop button and pulled out a butcher knife. He took money and jewelry from both the witness and the other woman in the elevator. Defendant told the women to undress, which they did. Defendant told the witness to kneel and forced her to perform fellatio on him. He then raped her. The elevator was illuminated by two light bulbs. She looked at defendant for 10 to 20 minutes on the elevator. Later she identified photographs of defendant and identified defendant at a lineup.

The other woman on the elevator completely corroborated the previous witness’ testimony. She identified defendant as the man who raped and committed deviate sexual assault against the previous witness and armed robbery against the two of them. She identified him in court, through photographs, and at a lineup.

Chicago police officer Katherine O’Brien testified that 12 days after the instant crimes, she was summoned to an apartment building near the scene of the subject crimes. Defendant was lying on the floor with a knife a couple of feet away. There was a crowd of people around him. Defendant was badly beaten. After talking to the people, the officers interviewed a woman in the building who told them defendant had raped her. Defendant was arrested and taken to a hospital. The officer identified a photograph of defendant taken at the hospital. The witness identified an “El Rukin tattoo” on his left breast. The witness was asked “What is El Rukin?” She answered that El Rukin was a street gang. Defense counsel objected, and the question was stricken.

The woman, whom Officer O’Brien interviewed, testified that two days before defendant was arrested, she, her baby, and defendant got on an elevator. Defendant pushed the emergency stop button, pulled out a butcher knife and asked for her jewelry and money. He then told her to take off her clothes. She complied. He told her to get on her knees and forced her to perform fellatio on him. Defendant then raped her. The elevator was well lighted and she had no trouble seeing defendant’s face. The witness was taken to a police station where she looked at photographs “in a book.” She identified a picture of defendant as the man who raped her. The defense did not present witnesses and waived closing argument.

Defendant argues he was prejudiced by the admission of improper evidence. Defendant complains of the evidence of crimes and criminal activity other than that charged in the instant indictment; specifically, the rape of the third victim. He also complains of the mention of the presence of a gang tattoo, and the insinuation that the victim identified defendant through “mug shots.” Defendant also cites the improper admission of prior consistent statements of the victims through their testimony of previous identifications of defendant and police officers’ testimony regarding the victims’ identifications of defendant.

Regarding the rape and deviate sexual assault of the third victim, evidence of a crime for which defendant was not charged is admissible to show modus operandi. (People v. Watson (1981), 98 Ill. App. 3d 296, 424 N.E.2d 329.) The admission of evidence of other similar crimes becomes more relevant when the defendant challenges the victims’ identifications. People v. Walls (1980), 87 Ill. App. 3d 256, 408 N.E.2d 1056.

In the case at bar, the circumstances of the crimes committed against the third victim were markedly similar to the circumstances of the crimes charged. In both cases, the offender rode the elevator with his victims, he pushed the emergency button, he used a butcher knife, he asked for jewelry and money, he forced the victims to undress, he forced the victims to perform the same acts in the same order, and the crimes occurred in the same vicinity. We conclude that the circumstances of the other crimes were clearly similar enough to be admissible to prove defendant’s modus operandi.

Regarding the reference to the gang tattoo, we note defendant did not present the issue in his post-trial motion and thereby waived the issue. People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.

In any event, the reference to the gang tattoo does not constitute reversible error. First, the trial judge had the question stricken, thereby curing any possible error. (People v. Moore (1982), 109 Ill. App. 3d 874, 441 N.E.2d 409.) Second, the reference was minor. We conclude that the reference “did not result in an inflammation of the jury here so as to sway [it] from a rational evaluation of the facts in issue.” People v. Perez (1981), 94 Ill. App. 3d 377, 380, 418 N.E.2d 969.

Similarly, in his post-trial motion, defendant failed to allege error in either the insinuation of previous criminal activity through the reference to police photographs of defendant, or the admission of prior consistent statements of the victims. He has therefore waived these issues for appellate review. People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.

Nevertheless, this evidence was properly admitted. Use of police photographs for the identification of the accused has been accepted by our courts. (See People v. Maffioli (1950), 406 Ill. 315, 94 N.E.2d 191; People v. Hardy (1979), 70 Ill. App. 3d 351, 387 N.E.2d 1042.) Furthermore, evidence of the victim’s out-of-court identification of the accused is relevant as long as that person is available in court for cross-examination. (People v. Johnson (1979), 68 Ill. App. 3d 836, 386 N.E.2d 642.) Similarly, police officers’ testimony regarding victims’ identifications is admissible to show the methods of police investigation. People v. Jones (1983), 114 Ill. App. 3d 576, 589, 449 N.E.2d 547.

Next, defendant argues he was prejudiced by improper argument by the prosecution. Specifically, defendant contends various statements were not based on evidence but were simply intended to arouse the passions of the jury. Defendant refers to characterizations of the defendant and references to the plight of the victims.

The style and substance of argument is left to the discretion of the trial court, which is in the best position to evaluate possible prejudice of the argument. (People v. Maldonado (1981), 101 Ill. App. 3d 948, 951, 428 N.E.2d 1097.) Its determination of the propriety of the argument will not be disturbed absent a manifest abuse of that discretion. 101 Ill. App. 3d 948, 951, 428 N.E.2d 1097.

We have studied the allegedly improper arguments and have determined they are not objectionable. The prosecution is allowed to impugn the character of the defendant. (People v. Jackson (1981), 84 Ill. 2d 350, 418 N.E.2d 739.) The prosecutor can also decry the evils of the particular crime and its impact on the victims. (People v. Wallace (1981), 100 Ill. App. 3d 424, 426 N.E.2d 1017.) Furthermore, in light of the absolutely overwhelming evidence of defendant's guilt, any possible impropriety of the closing argument would be harmless beyond any doubt, and therefore would not be reversible. People v. Baptist (1979), 76 Ill. 2d 19, 28-29, 389 N.E.2d 1200.

Next, defendant argues he was denied effective assistance of counsel. Defendant cites counsel’s waiver of closing argument.

Dispute over trial tactics or strategy cannot support a charge of ineffective assistance of counsel. (People v. Gornick (1982), 107 Ill. App. 3d 505, 437 N.E.2d 892.) In order for any alleged incompetence of counsel to necessitate reversal, defendant must show that the result of the trial would probably have been different absent the incompetence. (107 Ill. App. 3d 505, 437 N.E.2d 892.) A court will determine the effectiveness of representation based on the totality of the attorney’s conduct at trial. People v. Edmonds (1984), 101 Ill. 2d 44, 461 N.E.2d 347.

In the case at bar, it is clear the decision by counsel to waive closing argument was a decision of trial tactics. Through that device, the prosecution was denied the opportunity for any rebuttal, which may have proved more damaging than any defense. Furthermore, our perusal of the entire record indicates that defendant was not only afforded adequate representation, he was afforded excellent representation. Defense counsel conducted effective cross-examination in an attempt to shake the identification testimony of the victims. Defense counsel also presented important motions and argued them passionately. We find no conceivable error here.

Finally, defendant contends the extended-term sentences of 40 years on each conviction were excessive and should be reduced, or in the alternative, the case must be remanded to determine the exact basis of the extended-term sentences.

At the sentencing hearing, the trial court heard testimony from two teenage girls who also testified to being attacked by defendant in elevators. Furthermore, it was determined that in 1978, defendant pleaded guilty to two counts of armed robbery. Upon passing sentence, the trial judge described defendant’s actions as “savage and cruel and inhuman.”

The trial court may impose an extended-term sentence:

“(1) When a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, within 10 years *** or
(2) When *** the court finds the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty ***.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2(b).)

The determination of the proper sentence is left to the sound discretion of the trial court, and its decision will be reversed only upon an abuse of that discretion. People v. Willingham (1982), 89 Ill. 2d 352, 432 N.E.2d 861.

In the case at bar, the trial court had discretion to impose an extended term either on the basis of the “savage or cruel” behavior of defendant, or because defendant was convicted of two Class X felonies within 10 years of the instant convictions. We find no abuse of discretion here. See People v. Sanford (1983), 116 Ill. App. 3d 834, 452 N.E.2d 710.

For these reasons, the judgment and sentences of the circuit court of Cook County are affirmed.

Judgment affirmed.

CAMPBELL and O’CONNOR, JJ., concur.


author: PRESIDING JUSTICE STAMOS

text:
    JOHN ELLIS, JR., Plaintiff-Appellee, v. OUTBOARD MARINE CORPORATION, Defendant-Appellant.
    First District (2nd Division)
    No. 84—190
    Opinion filed April 2, 1985.
    Phelan, Pope & John, Ltd., of Chicago (Peter C. John and Mitchell H. Frazen, of counsel), for appellant.
    Corboy & Demetrio, P.C., of Chicago (Philip H. Corboy, Robert A. Clifford, and David A. Novoselsky, of counsel), for appellee.
   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

This appeal arises from an action to recover damages for personal injuries allegedly caused by a defect in a product manufactured by defendant. Defendant filed a motion to dismiss based upon the doctrine of forum non conveniens. The trial court denied the motion, and this court granted defendant’s petition for leave to appeal pursuant to Supreme Court Rule 306 (94 Ill. 2d R. 306).

Plaintiff John Ellis, Jr., filed his complaint in the circuit court of Cook County, Illinois, on October 1, 1982, seeking recovery for injuries allegedly suffered while he was operating a Haulster Cart manufactured by defendant Outboard Marine Corporation, a Delaware corporation whose principal place of business is in Lake County, Illinois. The injuries are alleged to have been sustained in the course of plaintiff’s duties as a refuse collector for the city of Shaker Heights, Ohio. Defendant entered a special and limited appearance on November 3, 1982, and filed a motion to dismiss based upon the doctrine of forum non conveniens, a memorandum in support thereof and a supporting affidavit. The affidavit, made by one of defendant’s attorneys, relates solely to the State of residence of plaintiff and contains allegations tending to establish Ohio as plaintiff’s State of residence.

Plaintiff, in his response to defendant’s memorandum, argued that Ohio was not available as an alternative forum because plaintiff would be barred from filing suit in Ohio under the applicable statute of limitations and because defendant was not amenable to service of process in Ohio. In response, defendant filed the affidavit of its attorney of record, consenting to service of process in Ohio. This affidavit also contained allegations as to factors weighing upon the convenience of bringing the action in Ohio as opposed to Cook County. No opposing affidavit was filed by plaintiff.

The circuit court denied defendant’s motion to dismiss, and defendant appeals.

Before considering defendant’s contention on appeal that the trial court abused its discretion in denying its motion to dismiss, we address plaintiff’s assertion, made in reliance upon the decision of our supreme court in Cotton v. Louisville & Nashville R.R. Co. (1958), 14 Ill. 2d 144, 152 N.E.2d 385, that defendant’s motion to dismiss on the basis of forum non conveniens was inadequate because it failed to name the potential witnesses to be called and to specify the type of testimony anticipated. The specificity standard of Cotton has been discussed in several recent decisions (Piper Aircraft Co. v. Reyno (1981), 454 U.S. 235, 258-59, 70 L. Ed. 2d 419, 437-38, 102 S. Ct. 252, 267-68; Haring v. Chicago & North Western Transportation Co. (1984), 103 Ill. 2d 530, 532-33, 470 N.E.2d 288; Lowe v. Norfolk & Western Ry. Co. (1984), 124 Ill. App. 3d 80, 89, 463 N.E.2d 792; Peterson v. Chicago & North Western Transportation Co. (1983), 117 Ill. App. 3d 163, 165, 453 N.E.2d 27), which indicate that defendants seeking dismissal on the basis of forum non conveniens need provide only enough information to enable the trial court to balance the parties’ interests. See Piper Aircraft Co.. v. Reyno (1981), 454 U.S. 235, 258, 70 L. Ed. 2d 419, 437, 102 S. Ct. 252, 267.

While defendant’s motion in the instant case is no model of clarity, we believe, given the absolute lack of evidence in the available facts indicating the existence of contacts with Cook County, Illinois, that the motion is sufficient under Piper Aircraft and the Illinois decisions cited above. Plaintiff’s complaint in the instant case does not allege the existence of any connections with Cook County, Illinois. We therefore find that defendant’s motion provided enough information to enable the trial court to balance the parties’ interests. We note that, had the lack of connections between this litigation and Illinois been any less obvious, defendant’s motion would clearly have been inadequate under Cotton.

Defendant contends on appeal that the trial court abused its discretion in denying defendant’s motion to dismiss. The standard of review in forum non conveniens cases was enunciated by this court in Torrijas v. Midwest Steel Erection Co. (1984), 130 Ill. App. 3d 788, 791-92:

“The trial court has broad discretion in deciding whether a case should be dismissed based upon forum non conveniens. [Citation.] On review, the only consideration is whether the trial court’s decision constituted an abuse of discretion and not whether the reviewing court would have resolved the issue in the same manner as the trial court. [Citation.]
The doctrine of forum non conveniens assumes the existence of at least two forums in which the controversy may be litigated. [Citations.] The application of this doctrine, therefore, focuses on the relative convenience of the available forums. [Citations.]”

Plaintiff contends that Ohio has not been established as an available alternative forum for this litigation. However, defendant has consented to service of process in Ohio, and in Jones v. Searle Laboratories (1982), 93 Ill. 2d 366, 372, 444 N.E.2d 157, our supreme court found such consent sufficient to satisfy the requirement of the availability of an alternative forum. Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 506-07, 91 L. Ed. 1055, 1061-62, 67 S. Ct. 839, 842.

In Gulf Oil, the United States Supreme Court set out the relevant interests, both public and private, which must be balanced in determining the most convenient forum. The private interests include the ease of access to sources of proof, the availability of compulsory process to secure the attendance of willing witnesses, the possibility of viewing the site of the occurrence, and the convenience of the parties. Public interests requiring consideration are the imposition of jury service on the residents of the community, the congestion of the court dockets, the need to apply the law of a foreign jurisdiction, and the interest in having local controversies decided at home. Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508-09, 91 L. Ed. 1055, 1062-63, 67 S. Ct. 839, 843; see DeVries v. Bankers Life Co. (1984), 128 Ill. App. 3d 647, 652-54, 471 N.E.2d 230.

Defendant contends that all of the relevant contacts with this litigation are located in Ohio. Defendant argues that Ohio is the site of the occurrence, the residence of the occurrence witnesses, the residence of the plaintiff, and the location of physical evidence such as medical records and materials related to the occurrence. Plaintiff argues that his choice of forum should not be disturbed and that defendant’s principal place of business is in Illinois.

Although our supreme court has stated that plaintiff’s choice of forum is an important consideration (Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill. 2d 111, 119, 427 N.E.2d 111), when the plaintiff is foreign to the chosen forum, plaintiff’s choice is accorded less deference. (See Weiser v. Missouri Pacific R.R. Co. (1983), 98 Ill. 2d 359, 367, 456 N.E.2d 98; Jones v. Searle Laboratories (1982), 93 Ill. 2d 366, 378, 444 N.E.2d 157.) Here, plaintiff is not an Illinois resident. Therefore, we attach little significance to plaintiff’s decision to sue in Cook County, Illinois. In addition, although defendant’s principal place of business is in Illinois, it is located outside Cook County.

The location of witnesses and the ease of access to sources of proof are important private interest factors to be considered. In the instant case, all prospective witnesses apparently reside in Ohio. Likewise, all records and physical evidence relating to the occurrence are located in Ohio.

The feasibility of a jury view of the site of the occurrence must also be considered. In the instant case, a jury view of the site could conceivably be required, and could be more easily accomplished if the action were tried in Ohio. We therefore find that the private interest factors weigh in defendant’s favor.

The condition of the dockets of the forum court, the burden of jury duty on members of the community, the interest in having local controversies decided at home, and the need to apply the law of a foreign jurisdiction are public interests requiring review. (Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508-09, 91 L. Ed. 1055, 1062-63, 67 S. Ct. 839, 843.) The crowded condition of the dockets of the circuit court of Cook County has been recognized by our supreme court. (Jones v. Searle Laboratories (1982), 93 Ill. 2d 366, 375, 444 N.E.2d 157.) In addition, Ohio law will be applied in the instant action. The need to apply the law of a foreign jurisdiction is a significant factor favoring dismissal on the basis of forum non conveniens. (Moore v. Chicago & North Western Transportation Co. (1983), 99 Ill. 2d 73, 80, 457 N.E.2d 417.) We find that the public interest factors weigh in defendant’s favor.

Because all the relevant factors to be considered when reviewing a motion to dismiss based upon the doctrine of forum non conveniens favor the defendant, we find that the trial court abused its discretion in denying defendant’s motion to dismiss. The decision of the circuit court is therefore reversed, and the cause is remanded for further proceedings consistent with this opinion.

Because the time limitation involved in this case may have run, this disposition is conditioned on defendant’s waiver of the statute of limitations, or similar defense, when the cause is transferred to another forum. (Foster v. Chicago & North Western Transportation Co. (1984), 102 Ill. 2d 378, 385, 466 N.E.2d 198.) If defendant refuses to waive the limitations defense, then plaintiff shall be given leave to reinstate his cause in the circuit court of Cook County.

Reversed and remanded.

HARTMAN and BILANDIC, JJ., concur.


author: JUSTICE JOHNSON

text:
    KOULA SILVESTROS, Indiv. and as Ex’x of the Estate of Anthanasios S. Silvestros, a/k/a Tom Silvestros, Plaintiff-Appellee, v. SILVESTROS SILVESTROS, Defendant-Appellant.
    First District (4th Division)
    No. 83—2825
    Opinion filed April 4, 1985.
    S. Ira Miller, of Chicago, for appellant.
    Leonard Karlin, of Chicago, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, Silvestros Silvestros, appeals an order of the trial court granting plaintiff’s oral motion for nonsuit after trial began. Plaintiff is Koula Silvestros, the executrix of the estate of Anthanasios Silvestros, also known as Tom Silvestros. At issue is whether the trial court abused its discretion when it granted plaintiff’s oral motion for a non-suit.

We reverse.

On October 28, 1980, plaintiff filed a complaint for an injunction and an accounting which alleged that she is the widow and sole heir of Tom Silvestros, who died May 14, 1979. Defendant is Tom’s nephew. Plaintiff alleged that defendant and Tom owned and operated the Silver House restaurant in Chicago. When the restaurant opened, Tom invested $150,000 for a one-half interest. Shortly after Tom’s death, defendant admitted to plaintiff that Tom owned 50% of the venture, although there were no written contracts. Even though the restaurant was organized as a corporation, Tom owned no stock because he did not want to be disclosed as an owner. Plaintiff demanded an accounting from defendant and asked that the court find that she owned a 50% interest in the restaurant.

On August 3, 1981, defendant answered plaintiffs complaint, denying that the deceased had an interest in the restaurant and denying that he had admitted such ownership to plaintiff. On September 28, 1981, the cause was dismissed for want of prosecution but was reinstated on October 6, 1981.

On October 7, 1982, defendant submitted interrogatories to plaintiff requesting the names and addresses of all persons who had relevant knowledge of matters in the complaint. A court order, dated January 26, 1983, set trial for September 6, 7 and 9, 1983, with discovery to close on August 1, 1983. The cause was dismissed a second time on September 3, 1983, because of plaintiffs failure to appear. The case was reinstated on October 5, 1983. At a hearing on that date, the trial judge stated to plaintiffs attorney: “I think you first better get your pleading in shape ***. Or are you going to go on Mr. Belroy’s [plaintiff’s previous attorney] pleadings?” He also stated: “Do you want me to put this down for trial, or do you want to get the pleadings straightened out?” Plaintiff’s attorney indicated that he would “clarify things” with defense counsel before trial so that the “trial [would] not be too long.”

The trial began on October 25, 1983. Plaintiff called John Dragazis as her first witness. He was allowed to testify even though defendant had no notice that he would be a witness. According to defense counsel, plaintiff never answered defendant’s interrogatories.

Dragazis testified that in 1976 he was hired to be the manager of the West Lawn restaurant by Tom Silvestros. Subsequently, he observed the construction of the Silver House restaurant. When it opened, Tom hired him as a manager. Dragazis managed the restaurant from 2 p.m. until 11 p.m. or midnight. Tom relieved Dragazis and worked until about 11:30 a.m.

Silvestros Silvestros was called as an adverse witness. He owned the Silver House restaurant and had previously owned the West Lawn restaurant, which was sold in 1976. During Silvestros’ testimony, plaintiff asked leave to file an amended complaint after the court pointed out defects in her complaint. Plaintiff’s oral motion for a nonsuit was granted. Defendant appeals, asking that the cause be dismissed with prejudice, or remanded for continuation of the trial, or for a hearing on his costs and damages.

Defendant argues that the trial court improperly granted plaintiff’s motion for a nonsuit. The voluntary dismissal statute provides in pertinent part as follows:

“The plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or each such party’s attorney, and upon payment of costs, dismiss his or her action or any part thereof as to any defendant, without prejudice, by order filed in the cause. Thereafter the plaintiff may dismiss, only on terms fixed by the court (1) upon filing a stipulation to that effect signed by the defendant, or (2) on motion specifying the ground for dismissal, which shall be supported by affidavit or other proof.” (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1009(a).)

According to defendant, plaintiff did not dismiss upon stipulation signed by defendant and she did not specify grounds for dismissal supported by affidavit and other proof, and the trial court did not fix the terms for dismissal. Defendant also claims that plaintiff abandoned her duty to prosecute with due diligence and without laches.

The Code of Civil Procedure requires a defendant’s signature on a plaintiff’s voluntary dismissal stipulation. Although a motion for the voluntary dismissal of plaintiff’s suit after trial has begun is addressed to the discretion of the trial court and is reversible only for abuse of that discretion (Newlin v. Foresman (1982), 103 Ill. App. 3d 1038, 1045, 432 N.E.2d 319, 325), an oral motion alone is insufficient to comply with the requirements for consent after commencement of the suit (City of Chicago v. Westphalen (1968), 95 Ill. App. 2d 331, 336, 238 N.E.2d 225, 227). Ruling that the trial court erred in granting a non-suit to a count in plaintiff’s complaint on plaintiff’s oral motion, we stated the following in City of Chicago v. Westphalen (1968), 95 Ill. App. 2d 331, 336, 238 N.E.2d 225, 227:

“Plaintiff’s motion for nonsuit should have been denied.
The plaintiff, having commenced this action and proceeded to trial, is bound to prosecute the action to its conclusion or to seek a voluntary dismissal in the manner required by the Practice Act [now the Code of Civil Procedure]. Count 1 therefore must be reinstated and the plaintiff must proceed with the trial thereof or it should be dismissed by the court.”

Accordingly, the order of the circuit court of Cook County is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

JIGANTI, P.J., and ROMITI, J., concur.


text:
    SEYMOUR KESSLER, D.P.M., Plaintiff-Appellee, v. CONTINENTAL CASUALTY COMPANY et al., Defendants-Appellants.
    First District (2nd Division)
    No. 84—1888
    Opinion filed April 2, 1985.
    Rehearing denied April 30, 1985.

      Reuben & Proctor, of Chicago (Don H. Reuben and William J. Campbell, of counsel), for appellants.
    Joyce & Kubasia, P.C., and Madigan, Stanner, Kahn, Bonifacic & Getzendanner, both of Chicago (Edward T. Joyce, Michael M. Moirano, and Lawrence T. Stanner, of counsel), for appellee.
   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

This case involves an interlocutory appeal by the defendants, two insurance companies, from the issuance of a preliminary injunction prohibiting them from nonrenewing or otherwise failing to provide malpractice insurance for plaintiff’s podiatric services until plaintiff, as an insured, is given full claims and insurability review by the Professional Liability Review Committee and the insurance companies.

The facts disclose that plaintiff Seymour Kessler (plaintiff), a podiatrist and one of the founders and current members of the Academy of Ambulatory Foot Surgeons (AAFS), sought a preliminary and permanent injunction against the defendants, the two insurance companies (collectively CNA), which had provided malpractice insurance to plaintiff for three policy years under a program sponsored by the AAFS. Plaintiff sought to require CNA to renew his most recently expired policy and to continue providing him with malpractice insurance until such time as the defendant fully complied with its obligations under plaintiff’s policy and the AAFS malpractice insurance program agreements.

In the fall of 1980, AAFS, a society of podiatrists specializing in outpatient foot care and strong proponents of a surgical technique called “minimal incision surgery,” entered into an agreement with CNA to co-sponsor a professional liability insurance program for AAFS members. A written contract was executed on June 1, 1981 (the AAFS Agreement).

Plaintiff alleged in his complaint that the development of the minimal incision surgery technique, which can be performed in a physician’s office or on an outpatient basis, had the effect of reducing medical care revenue to podiatric hospitals and to podiatrists having a practice based on an inpatient surgery and confinement basis. As a result of this economic threat, the hospital-based podiatrists and others attacked the minimal incision procedure and, through their representative group, the American Podiatry Association (APA) allegedly sought to impede the proponents of the procedure from qualifying as certified diplomats of the American Board of Podiatric Surgery. This animosity led the proponents to form their own national organization, the AAFS, which then embarked on providing malpractice insurance for its members. This ultimately led to the AAFS Agreement mentioned above.

At the hearing for the preliminary injunction, one Dr. Plon testified as to the history of the AAFS and the special needs which caused the AAFS to develop its own program with CNA as the carrier. Plon, a co-founder of the AAFS with plaintiff, testified as to meetings between members of the AAFS board, which included plaintiff and was responsible for finding an appropriate insurance carrier, and members of CNA. Specifically, Plon testified that the concept of peer review and claims review was vitally important to the AAFS and was one of the major reasons the AAFS wanted its own insurance program apart from any program sponsored by the APA. Plon testified that, when he and plaintiff were looking for a new insurance company to insure AAFS after its old carrier was determined to be unsatisfactory, CNA was selected as the carrier because of its representations that it could meet the special requirements of the AAFS. Plon also testified that CNA, in his opinion, did not perform under the AAFS Agreement in the manner he and the AAFS originally thought it would. Namely, no information was apparently given by CNA to the appropriate committee of the AAFS enabling AAFS to review the merits of claims filed against members and advise CNA accordingly, and, if necessary, offer expert witnesses to fight claims thought to be nonmeritorious.

The AAFS Agreement did not provide for automatic group coverage. Rather, the AAFS was empowered to create a Professional Liability Review Committee which would work with CNA in administering the program. Relevant portions of the AAFS Agreement provide as follows:

“CNA shall have the sole and exclusive authority to accept or reject an application for insurance from a podiatrist.
* * *
The insurance provided hereunder will be offered as long as the podiatrist meets the approval of the AAFS Professional Liability Review Committee and continues to meet CNA’s underwriting criteria. No quota or limit shall apply to the number of podiatrists as participants in the program.
* * *
The Academy will assist CNA in establishing general underwriting criteria and eligibility standards for the insurance program. While the criteria and standards are intended as general guidelines, CNA may use such other relevant considerations as it deems material in determining eligibility for the insurance program. CNA agrees to offer the insurance program to podiatrists who, in the judgment of CNA qualify, pay the premiums when due, and continue to meet CNA’s general underwriting criteria and eligibility standards.
* * *
The role of the Professional Liability Review Committees is advisory in nature and as such the members of [said committees] shall not be liable to CNA for findings, recommendations or decision made.”

Plaintiff subsequently obtained professional liability insurance under the program with CNA for three policy years from January 31, 1981, to January 31, 1984. During the term of plaintiff’s contract, a total of 40 claims were filed against him. After reviewing plaintiff’s three-year claims history, CNA determined that it would not renew plaintiff’s insurance coverage, allegedly because plaintiff’s loss experience had become deleterious. CNA sent plaintiff one notice of nonrenewal on December 15, 1983, and another on December 27, 1983, citing plaintiff’s alleged noncompliance with underwriting criteria. Plaintiff claims that CNA’s decision to nonrenew him was based on its use of a secret underwriting “grid” which provided for automatic nonrenewal when four or more claims were filed in three years against an insured, regardless of the merits of the claims or the volume of the insured’s practice. Plaintiff contends that CNA’s use of this grid was violative of the basic understanding between AAFS and CNA to provide for AAFS peer review of claims, and is inconsistent with the AAFS Agreement and the negotiations leading thereto. Plaintiff further contends that CNA’s use of the grid is inconsistent with advertising brochures issued by CNA to AAFS members, like plaintiff, who were obtaining insurance through the program. CNA claimed that the decision to renew was solely within the province of CNA. CNA also claimed that the provision in the AAFS Agreement for AAFS advisory review relates to insurability, the initial decision to accept or reject an applicant, and not to renewal, the decision to enter into a new insurance contract upon the automatic expiration of the existing policy. CNA further maintained that plaintiff has no legal interest or right in any provision of the AAFS Agreement and that nowhere does plaintiff’s own insurance contract provide for claims review or peer review.

On February 29, 1984, plaintiff filed a complaint in chancery for an injunction and other relief. The essence of plaintiff’s complaint was that CNA’s refusal to renew his malpractice insurance was a breach of CNA’s duty arising under the AAFS program agreement with the AAFS and its members as well as a breach of CNA’s policy obligations to plaintiff. Effective January 31, 1984, plaintiff’s insurance had been extended through March 1, 1984. On February 29, 1984, the trial court issued a temporary restraining order, based upon plaintiff’s motion for a temporary restraining order filed contemporaneously with his complaint, prohibiting CNA from nonrenewing plaintiff’s insurance pending a hearing on the preliminary injunction.

At the hearing on the preliminary injunction, CNA contended that plaintiff’s alleged rights, purportedly arising out of preliminary negotiations between AAFS and CNA and advertisement brochures, simply did not exist. CNA objected to the parol evidence offered by plaintiff because there was no mention of peer review in plaintiff’s contract, because the AAFS Agreement was fully integrated, and because the AAFS Agreement specifically precluded third-party rights. The trial court subsequently entered an order which stated, inter alia, that plaintiff had a right to rely on CNA’s representations regarding claims review and insurability review by the AAFS Professional Liability Review Committee and CNA, that there was no such review prior to plaintiff’s receipt of a notice of nonrenewal, that plaintiff had the right to proper notice and to be presented with specific reasons for nonrenewal, that these were rights deserving equitable protection suggesting a likelihood that plaintiff could succeed on the merits, that plaintiff would suffer irreparable harm if coverage was not renewed and that plaintiff had no adequate remedy at law. Consequently, upon those findings, the trial court ordered that a preliminary injunction be entered prohibiting CNA from nonrenewing plaintiff’s malpractice insurance until plaintiff has been given full claims and insurability review by the AAFS Professional Liability Review Committee and CNA. CNA filed this interlocutory appeal pursuant to Supreme Court Rule 307.

In the present action, the trial court’s order prohibited CNA from nonrenewing or otherwise failing to provide insurance for plaintiff’s podiatric services until plaintiff received full claims and insurability review. The tendency and effect of that order is to require CNA to insure plaintiff even though, absent judicial action, CNA had nonrenewed plaintiff’s insurance, and plaintiff’s insurance policy had expired by its terms. Such an order is clearly mandatory in nature. Mandatory preliminary injunctions are not favored, and the only justification for such an order is the maintenance of the status quo to avoid irreparable injury. (Halvorsen v. Richter (1976), 37 Ill. App. 3d 344, 346, 345 N.E.2d 220.) In order to establish irreparable injury, the plaintiff must show that his legal remedy is inadequate in that money damages will not be adequate compensation or the damages escape pecuniary valuation. Bally Manufacturing Corp. v. JS & A Group, Inc. (1980), 88 Ill. App. 3d 87, 94, 410 N.E.2d 321.

The trial court’s order recites that plaintiff would suffer irreparable injury if his insurance was not continued in that, without insurance, his services to his patients and the public would be greatly impeded, if not terminated, that his reputation would be ruined, and that his economic status would be seriously handicapped. We find, however, that these averments of irreparable harm are not sufficient in either kind or degree to compel an insurance company to continue providing coverage where it has the authority to discontinue coverage and so chooses to discontinue coverage.

The issuance of a preliminary injunction is a matter solely within the discretion of the trial court, and its determination will not be disturbed on appeal absent an abuse of discretion. (Kirsner v. Johnson & Johnson Products, Inc. (1983), 118 Ill. App. 3d 564, 565, 455 N.E.2d 292.) When considering the propriety of a preliminary injunction, the trial court does not decide contested issues of fact. (Rotary Club v. Harry F. Shea & Co. (1983), 120 Ill. App. 3d 988, 995, 458 N.E.2d 1002.) In the present action, plaintiff alleged that CNA was improperly nonrenewing his insurance because it failed to provide him claims review and failed to give him 90 days’ notice allegedly required under his policy. It is undisputed here that CNA gave plaintiff at least 30 days’ notice required by section 143.17 of the Illinois Insurance Code (Ill. Rev. Stat. 1983, ch. 73, par. 755.17), which compels an insurer to continue coverage until the insured obtains similar insurance when an insurer does not send 30 days’ advance notification of a decision to nonrenew. Thus, there was no statutory basis to continue plaintiff’s insurance coverage. Plaintiff claims, however, and the trial court apparently found, that the notice of nonrenewal was not sufficiently specific as required by section 143.17(e) because it only gave as a reason for nonrenewal plaintiff’s “noncompliance with company writing guidelines.” However, in Steward v. Allstate Insurance Co. (1980), 92 Ill. App. 3d 637, 415 N.E.2d 1206, this court found a notice sufficiently specific that stated the reason for nonrenewal as “poor loss experience.” (92 Ill. App. 3d 637, 644.) In a trial on the merits, the notice here may ultimately be found not sufficiently specific. However, for purposes of ruling on the issuance of a mandatory preliminary injunction, this was not a question appropriately resolved. Thus, we are left to determine whether, in the absence of insurance, the sort of injury facing plaintiff was properly classified as “irreparable.” As stated, we do not.

If CNA wrongfully nonrenewed plaintiff’s policy, his appropriate remedy was a suit for damages. At this stage of the litigation, there was no basis for a statutory extension of coverage. Consequently, until plaintiff is able to secure alternative insurance due to CNA’s alleged wrongful nonrenewal, his damages are the extra cost of securing a replacement policy, the cost of defending any claims filed against him while he is uninsured, and the lost profits due to his practical inability to practice medicine without insurance. All of these items are amenable to pecuniary valuation in amounts adequate to compensate plaintiff in a contract action. Lost profits can be measured on the basis of past performance and present predictions of future performance. (See Tidd v. General Printing Co. (1930), 257 Ill. App. 596, 606.) The difference in premiums would be a mere matter of subtraction, and the cost of defending claims is readily verifiable. We fail to see how money damages would be neither adequate nor ascertainable. Where a contract gives the insurer a right to nonrenew, the temporary lack of insurance resulting in lost profits and other associated expenses does not, without more, justify the issuance of a preliminary injunction. Cf. Fahey v. Holy Family Hospital (1975), 32 Ill. App. 3d 537, 544, 336 N.E.2d 309.

The trial court also referred to damages to plaintiff’s reputation. However, damages to plaintiff’s professional reputation cannot, generally, serve as a basis for a finding of irreparable injury (see Sampson v. Murray (1974), 415 U.S. 61, 91, 39 L. Ed. 2d 166, 187, 94 S. Ct. 937, 953), especially in the absence of any affirmative testimony or evidence that plaintiff’s reputation would be or has been tarnished. (See Hoffman v. Wilkins (1971), 132 Ill. App. 2d 810, 819, 270 N.E.2d 594.) Moreover, we question whether the alleged damages to plaintiff’s reputation necessarily follow from the nonrenewal of his insurance, or if such damages are more likely incidental to the numerous malpractice claims filed against him. See Dos Santos v. Columbus-Cuneo-Cabrini Medical Center (7th Cir. 1982), 684 F.2d 1346, 1350.

Plaintiff also claims that no alternative insurance is available, and one witness did testify to that effect. However, there was also evidence introduced that plaintiff could probably secure alternative insurance for $125,000 per year, but that plaintiff was not willing to spend that much. Assuming CNA wrongfully nonrenewed plaintiff’s insurance, the difference in premiums would be a likely damage assessment against CNA. None of plaintiff’s injuries, either singularly or cumulatively, can serve as the basis for the injunction here issued which has the unusual effect of compelling an insurer to provide insurance. The preliminary injunction here is akin to ordering CNA to specifically perform its contract with plaintiff in spite of the fact that the terms of the contract are in apparent dispute and there has been no determination on the merits. (See Nu-Enamel Distributors, Inc. v. Nu-Enamel Corp. (1942), 315 Ill. App. 494, 43 N.E.2d 205 (abstract of opinion).) Under these facts, we find such an order irregular and inappropriate. Plaintiff’s possible injuries are not sufficient in magnitude to warrant the imposition here placed upon CNA. CNA would be responsible for the defense and payment of any claims filed against plaintiff during the period the injunction is in force. This, when compared with the possible harm facing plaintiff, which can be adequately compensated at law, further compels us to dissolve the injunction.

For these reasons, we find that the trial court’s order was an abuse of discretion. We therefore order the injunction against CNA dissolved and the action remanded to the trial court.

Reversed and remanded.

PERLIN and BILANDIC, JJ., concur.


author: JUSTICE BILANDIC

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOSEPH M. EMRICH, Defendant-Appellee.
    First District (2nd Division)
    No. 84—0285
    Opinion filed March 26, 1985.
    Rehearing denied April 23,1985.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Timothy J. Frenzer, and Mary Louise Norwell, Assistant State’s Attorneys, of counsel), for the People.
    Stephen K. Bell, of Wheaton, for appellee.
   JUSTICE BILANDIC

delivered the opinion of the court:

At the conclusion of a suppression hearing, the trial court held that the results of a chemical analysis performed on a sample of defendant Joseph M. Emrich’s blood were inadmissible. On appeal, the State contests the propriety of this holding, pursuant to Supreme Court Rule 604(a)(1) (87 Ill. 2d R. 604(a)(1)).

Following an August 22, 1983, automobile collision, defendant was taken to Henrotin Hospital, where Tereseta Easterling, a medical technologist, drew three blood samples at approximately 2:30 a.m. Each blood sample was drawn directly from defendant into a sterile vacuum container. One of the containers had a “green top,” meaning that the sample within contained the anticoagulant heparin; the two remaining containers had “red tops,” meaning that the samples within did not contain an anticoagulant or preservative. Easterling then labeled the containers and proceeded to test the “green top” sample for alcohol content in an ACA centrifuge instrument. This particular analysis involved first separating out the blood cells, and then measuring the alcohol content of the remaining plasma. Easterling conceded, however, that she was not certified to perform this analysis by the Illinois Department of Public Health.

At approximately 4:45 a.m. on August 22, Officer John Simon of the Chicago police department left Henrotin Hospital with the two “red top” samples of defendant’s blood that were given to him by Easterling. Officer Simon took these samples to the 18th District police station where, following an inventory, he turned them over to Officer Norford Rejewski, a crime lab technician, at 6:53 a.m. that morning. Officer Rejewski gave Officer Simon a receipt for the containers, put them into an envelope and placed them into a “refrigerator and microsection.”

Veronica Rotterman, a toxicology chemist employed by the Illinois Department of Public Health (Department), received a manila envelope from the Chicago police department at approximately 8:20 a.m. on August 22. This envelope contained two test tubes with red rubber stoppers containing approximately six milliliters of defendant’s blood. Rotterman thereupon wrote up a description of the evidence and how it had arrived, signed a police officer’s receipt, and put one of the samples into a storage box that was locked into an evidence refrigerator. Rotterman then proceeded to perform an alcohol analysis on the second sample of defendant’s blood. This particular test involved the gas chromatograph direct injection method, whereby a blood sample is injected into the instrument and the alcohol content is recorded on a computer printout graph. Although Rotterman determined by her sense of smell that defendant’s unpreserved blood sample had not degenerated or deteriorated, she later admitted that the standards of her Department required that the blood sample have an anticoagulant preservative in it.

On August 26, 1983, defendant was charged by indictment with two counts of reckless homicide (Ill. Rev. Stat. 1981, ch. 38, par. 9— 3), and one count of driving while under the influence of an intoxicating liquor (Ill. Rev. Stat. 1981, ch. 95V2, par. 11 — 501(a)). Defendant filed a motion for discovery on September 13, 1983, which requested, among other things, “[t]he blood sample taken from the Defendant on the night of the alleged occurrance [sic].” Thereafter, on October 11, 1983, defendant filed a motion to suppress the results of any analysis performed on the samples of his blood. Count I of this motion dealt with an alleged nonconsensual procurement of said evidence; count II concerned the State’s failure to supply the requested blood sample for independent analysis.

On January 19, 1984, a hearing was held on count II of defendant’s motion to suppress. Richard Swiatek, a manager of chemistries and toxicology working at Damen Clinical Laboratories, was called to testify as an expert witness for the defense. When counsel for defendant tendered Swiatek as an expert in chemical analysis, the State declined to question his degree of expertise in this field. In essence, Swiatek indicated that he had not received defendant’s blood sample from the State until October 19, 1983. Swiatek further testified that this sample did not contain an anticoagulant or preservative. As such, it was his opinion that the then two-month-old sample could not be accurately tested for “whole blood alcohol concentration.” Had defendant’s blood sample contained the proper anticoagulant and preservative, it was Swiatek’s opinion that only then could an accurate blood-alcohol determination have been made.

The trial court granted defendant’s motion to suppress, reasoning that “the State failed to properly maintain the blood sample and allowed the spoilation of the blood sample thereby precluding the defendant from obtaining an independent analysis ***.” The court also noted that the alcohol analysis in question was not performed in accordance with the standards and procedures adopted by the Department. It is the propriety of the trial court’s suppression order which the State now contests on appeal.

I

The threshold issue is whether affirmance is warranted in view of the undisputed failure to comply with the statutes and regulations dealing with chemical analysis of blood for alcohol or drug content.

The controlling statute in this case is section 11 — 501.2 of the Illinois Vehicle Code which provides, in pertinent part, that: “Chemical analyses of the person’s blood, *** to be considered valid under the provisions of this Section shall have been performed according to standards promulgated by the Department of Public Health in consultation with the Department of Law Enforcement ***.” (Ill. Rev. Stat. 1983, ch. 951/2, par. 11 — 501.2(a)(1).) The standards in question have not been made a part of the record on appeal. The trial court apparently had a copy of these standards before it, but they are before this court only as an appendix to the State’s brief. Without question, a reviewing court may take judicial notice of such standards. People v. Palmer (1983), 114 Ill. App. 3d 454, 458, 448 N.E.2d 1005, citing Pearce v. Illinois Central GulfR.R. Co. (1980), 89 Ill. App. 3d 22, 411 N.E.2d 102.

The Department standard most relevant to the case at bar is found in section 11, “STANDARDS AND PROCEDURES FOR WITHDRAWING OF BLOOD AND/OR URINE SAMPLES FOR CHEMICAL ANALYSIS OF ALCOHOL OR OTHER DRUG CONTENT.” Rule 11.01(d)(3) of section 11 provides that: “When vacuum-type blood-collecting containers are used as primary collecting tubes, two (2) tubes should be collected each containing an anti-coagulant/ preservative which will not interfere with the intended analytical method.” Illinois Department of Public Health, Standards and Procedures for Testing for Alcohol and/or Other Drugs by Breath, Blood and Urine Analysis, Rule 11.01(d)(3), at 17 (1982).

It is clear that those responsible for the processing of defendant’s blood failed to meet the Departmental standard for withdrawing of blood for chemical analysis of alcohol content. Indeed, as the State’s expert, Veronica Rotterman, admitted in open court: “[Defendant’s] blood samples had no anti-coagulant in them ***.” This was evident despite Rotterman’s acknowledgement that, “[her] agency, the Illinois Department of Public Health, require[s] that the blood sample have anti-coagulant preservative in it.” (Emphasis added.)

The State has conceded that “[t]he blood samples below *** did not contain an anti-coagulant/preservative.” That, of course, was why, as the State also concedes, “the blood contained in the sample was clotted at the time of examination ***.”

The standard in question could either have been met or not. An anticoagulant could have been put in all three of defendant’s blood samples, but it is quite obvious that such was not the case here. As a result, the State’s contention that it substantially complied with the Department’s preservation-of-blood standard is without merit.

Further argument is advanced by the State that the word “should,” as used in the Department’s Rule 11.01(d)(3), connotes no more than an obligation of expediency. What the State has failed to acknowledge, however, is the uncontroverted fact that this particular “Rule” was promulgated by the Department as a “STANDARD” for withdrawing of blood for chemical analysis of alcohol content. (Illinois Department of Public Health, Standards and Procedures for Testing for Alcohol and/or Other Drugs, by Breath, Blood and Urine Analysis sec. 11, at 16 (1982).) As such, compliance was mandatory in view of the legislature’s directive in section 11 — 501.2(a)(1) of the Illinois Vehicle Code that: “Chemical analyses of the person’s blood, *** to be considered valid under the provisions of this Section shall have been performed according to standards promulgated by the Department of Law Enforcement by an individual possessing a valid permit issued by that Department for this purpose.” (Emphasis added.) Ill. Rev. Stat. 1983, ch. 95V2, par. ll-501.2(a)(l).

Furthermore, a reading of the prefatory comment to Rule 11.01 indicates more than a mere advisory intent on the part of the Department:

“Blood Collection. When a person is arrested and the arresting officer requests a blood test to determine the amount of alcohol or other drugs present, the blood sample shall be collected according to the followingprocedure(s): ***.” (Emphasis added.)

Section 11 — 501.2 of the Illinois Vehicle Code “applies equally to reckless homicide and DWI offenses alike ***.” People v. Murphy (1984), 124 Ill. App. 3d 695, 700, 464 N.E.2d 853.

A plain reading of this section, effective at the time of the instant chemical analysis, reveals that the legislature did not intend to limit its application strictly to driving-while-under-the-influence cases: “(a) Upon the trial of any civil or criminal action or proceeding arising out of an arrest for an offense as defined in Section 11 — 501 ***.” (Ill. Rev Stat. 1983, ch. 95^2, par. 11 — 501.2(a).) Driving while under the influence of an intoxicating liquor is an offense defined in section 11 — 501(a)(2) of the Illinois Vehicle Code. Defendant here was charged with one count of this offense and with two counts of reckless homicide — the commission of which allegedly arose out of his having driven a motor vehicle while under the influence of an intoxicating liquor.

The mandatory language contained in section 11 — 501.2(a)(1) is, therefore, applicable to the facts of this case.

In both People v. Murphy (1984), 124 Ill. App. 3d 695, 464 N.E.2d 853 and People v. Palmer (1983), 114 Ill. App. 3d 454, 448 N.E.2d 1005, the State’s argument that the certification requirement of section 11 — 501.2(a)(1) should be ignored was rejected. Accordingly, the trial court’s exclusion in each case of blood test results due to the absence of a Department permit was affirmed. Likewise, we reject the State’s argument here that the Department’s standard with respect to the preservation of blood samples should also be ignored. The reasons for the evidentiary restrictions set forth in section 11 — 501.2(a)(1), as well as the dangers inherent in their disregard, do not need elaboration. There is no dispute that the blood samples in question were never preserved with an anticoagulant. Consequently, the chemical analysis of these samples was not “performed according to the standards promulgated by the Department ***.” (Ill. Stat. 1983, ch. 95x/z, par. 11 — 501.2(a)(1).) Because the mandatory language of section 11 — 501.2(a)(1) applies equally to reckless homicide and driving-while-under-the-influence offenses alike, it is our conclusion that the results of the chemical analysis were properly ruled inadmissible.

II

As a final argument, the State contends that an inadequate foundation was laid to qualify defendant’s expert “in the area of forensic analysis, the analysis of alcohol content of the blood.” This question, however, has not been preserved for review.

During the direct examination of Mr. Swiatek, an objection was made by the prosecutor that defense counsel was “going into the substance of this case and I don’t know if counsel has finished in his examination of establishing that [Swiatek] is an expert.” Thereafter, the defense counsel tendered Swiatek as an expert in the field of chemical analysis. The trial court then asked the State if it “wishfed] to inquire of the witness as to his expertise or degree of expertise in the field to which he is about to testify?” The prosecutor responded, “No, Judge.” Having failed to question, much less object to, Swiatek’s qualifications as an expert witness during the proceedings below, we consider the State’s argument with regard to this issue as waived for purposes of appellate review. See People v. Stewart (1984), 105 Ill. 2d 22, 50.

For the reasons set out herein, the judgment of the circuit court of Cook County is hereby affirmed.

Affirmed.

STAMOS and PERLIN, JJ., concur.

       No testimony concerning the results of Easterling’s test was proffered by the State during the course of the proceedings below; no issue has therefore been raised with respect to the validity of these results.


author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PATRICK ROSS, Defendant-Appellant.
    First District (1st Division)
    No. 83—1514
    Opinion filed April 15, 1985.

      James E. Brown, of Schiff, Hardin & Waite, and Steven Clark, of State Appellate Defender’s Office, both of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Frank G. Zelezinski, and Patrick J. Foley, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court;

Defendant, Patrick Ross, was convicted in a jury trial and concurrently sentenced to 70 years’ imprisonment for murder and 30 years for aggravated kidnaping. (Ill. Rev. Stat. 1981, ch. 38, pars. 9 — l(a-3), 10 — 2(3).) On appeal, defendant raises the following issues: (1) whether the United States or Illinois constitutions require that a written or recorded transcript be made of evidence presented at an ex parte hearing at which an arrest warrant is authorized; (2) whether the court erred in denying defendant’s motion to quash arrest; and (3) whether the court erred in denying defendant’s motion to suppress defendant’s statements.

The record reveals that on April 16, 1982, Chicago police detectives Terence Thedford and James Antonacci appeared before circuit court Judge Murphy and obtained an arrest warrant for defendant. At this time, Thedford testified that the defendant had been implicated in the robbery and murder, of one Melvin Lloyd by the statements of “two other co-offenders that had been arrested in this matter.” After being arrested and charged, defendant filed motions to quash his arrest and to suppress certain statements.

At the hearing on defendant’s motion to quash on September 27, 1982, the detectives were unable to recall the precise testimony Thedford had given before Judge Murphy when the arrest warrant was issued. The trial court denied defendant’s motion to quash arrest on the basis that defendant failed to meet his burden that no probable cause existed for the arrest.

At the hearings on the motion to suppress statements on November 19, 1982, March 9, 1983, and March 10, 1983, the detectives testified that defendant was arrested at approximately 11:50 p.m. on April 19, 1982. Defendant was then driven to Area Four Violent Crimes offices at 3151 West Harrison, where he was taken to an interrogation room, handcuffed to a restraining ring, and left alone. The detectives returned to the interrogation room five to 10 minutes later and had various interviews with defendant, resulting in a written statement signed by defendant. Defendant was then charged with the robbery and murder of Melvin Lloyd. The trial court denied defendant’s motion to suppress on the basis that the State met its burden to demonstrate that by obtaining these statements defendant’s fourth amendment rights were not violated. Defendant was subsequently found guilty in a jury trial and sentenced to 70 years for murder with a concurrent sentence of 30 years for aggravated kidnaping.

Defendant first contends that failure to provide a written or recorded transcript of the evidence heard by the court in the ex parte hearing concerning the issuance of the arrest warrant violated defendant’s constitutional rights. Defendant argues that “only by requiring written affidavits, or the recording of oral testimony, can it be assured that reviewing courts will have an accurate record of the evidence relied upon to find probable cause for arrest warrants.” Defendant relies on People v. Elias (1925), 316 Ill. 376, 147 N.E. 472, to support his position. In Elias, the defendant raised issues concerning the proper procedure to use in issuing a search warrant. The court held that “[t]he testimony on which the magistrate acts must be reduced to writing, incorporated in a formal complaint and verified by affidavit.” (People v. Elias (1925), 316 Ill. 376, 381, 147 N.E. 472, 474.) However, Elias can be distinguished on its facts in that Elias pertains to the issuance of search warrants which are listed under section 108 — 3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 108 — 3), while the requirements of arrest warrants are set forth in section 107 — 9 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 107 — 9).

Under the fourth amendment to the United States Constitution, an arrest warrant must be supported by probable cause. (Giordenello v. United States (1958), 357 U.S. 480, 2 L. Ed. 2d 1503, 78 S. Ct. 1245.) However, the fourth amendment contains no prescription as to the form or manner in which probable cause must be shown, but merely provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation.” (Gillespie v. United States (8th Cir. 1966), 368 F.2d 1, 4.) Similarly, the Illinois Constitution requires that “No warrant shall issue without probable cause, supported by affidavit particularly describing the place to be searched and the persons or things to be seized.” (Ill. Const. 1970, art. 1, sec. 6.) Section 107 — 9 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 107 — 9) provides for the issuance of an arrest warrant where the issuing judge has been presented with a sworn complaint and has heard testimony under oath which supports the determination that probable cause exists that the person has committed a crime. In issuing an arrest warrant, the court is not bound by the four corners of the complaint, but may base its determination of probable cause upon its required examination of the complainant or witness. Ill. Rev. Stat. 1981, ch. 38, par. 107 — 9; Village of Willowbrook v. Miller (1966), 72 Ill. App. 2d 30, 217 N.E.2d 809.

In the instant case, defendant requests that this court expand the protection of the fourth amendment and require that a written or recorded transcript be made of ex parte proceedings for the issuance of arrest warrants. Some jurisdictions require that a written or recorded transcript be made if it is to be utilized to support probable cause. (See Glodowski v. State (1928), 196 Wis. 265, 220 N.W. 227; People v. Moreno (1971), 176 Colo. 488, 491 P.2d 575.) However, six United States Circuit Courts of Appeals have held that the fourth amendment contains no prescription as to the form or manner in which probable cause must be shown. (See United States ex rel. Pugach v. Mancusi (2d Cir. 1969), 411 F.2d 177, eert. denied (1969), 396 U.S. 889, 24 L. Ed. 2d 163, 90 S. Ct. 172; United States ex rel. Gaugler v. Brierley (3d Cir. 1973), 477 F.2d 516; United States v. Hill (5th Cir. 1974), 500 F.2d 315, cert, denied (1975), 420 U.S. 931, 43 L. Ed. 2d 404, 95 S. Ct. 1135; Frazier v. Roberts (8th Cir. 1971), 441 F.2d 1224; Gillespie v. United States (8th Cir. 1968), 368 F.2d 1; Sherrick v. Eyman (9th Cir. 1968), 389 F.2d 648, cert, denied (1968), 393 U.S. 874, 21 L. Ed. 2d 144, 89 S. Ct. 167; Leeper v. United States (10th Cir. 1971), 446 F.2d 281, cert, denied (1972), 404 U.S. 1021, 30 L. Ed. 2d 671, 92 S. Ct. 695.) Moreover, prior decisions involving the showing of probable cause for the issuance of arrest warrants under the Illinois Constitution have applied the same standards contained in the fourth amendment as construed by the United States Supreme Court, and we see no reason to depart from that approach in the instant case. (People v. Tisler (1984), 103 Ill. 2d 226, 469 N.E.2d 147; People v. Williams (1963), 27 Ill. 2d 542, 190 N.E.2d 303.) Defendant has not cited any Illinois cases to support his contention. Both of the cases cited by defendant are based on their respective State constitutions, and defendant has not demonstrated that either the fourth amendment to the United States Constitution or the Illinois Constitution require that a written or recorded transcript be made at the ex parte hearing as a condition to the issuance of an arrest warrant.

Defendant next contends that the court improperly denied his motion to quash arrest because insufficient probable cause for arrest was shown. Defendant argues that there was nothing in the record before Judge Murphy which would reflect the informants’ veracity, reliability or basis of knowledge to support a finding of probable cause for the issuance of the arrest warrant.

Whether probable cause exists in a particular case turns on the “totality of the circumstances and facts known to the officers and court when the warrant is applied for.” (People v. Free (1983), 94 Ill. 2d 378, 400, 447 N.E.2d 228; see Rlinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317; People v. Lippert (1982), 89 Ill. 2d 171, 432 N.E.2d 605.) Although a mere suspicion that the person arrested has committed the offense is an insufficient basis for arrest, evidence sufficient to convict is not necessary. (People v. Lippert (1982), 89 Ill. 2d 171, 432 N.E.2d 605.) The decision on whether to issue an arrest warrant is to be based on information contained in sworn statements of affidavits that are presented to the magistrate. (People v. Greer (1981), 87 Ill. 2d 89, 429 N.E.2d 505.) A reviewing court will not disturb a trial court’s finding of probable cause unless it is manifestly erroneous. People v. Robinson (1980), 91 Ill. App. 3d 1138, 415 N.E.2d 585.

In the instant case, defendant has not shown that the trial court acted in a manifestly erroneous manner. The record shows that Detective Thedford provided information to the judge based on a “tip” from two co-offenders in order to obtain the arrest warrant. When a co-offender who is under arrest and in custody supplies a police officer with a “tip” implicating alleged accomplices, the test is whether the statement of the co-offender constitutes probable cause for the arrest of the alleged participating accomplice. (People v. Jackson (1979), 72 Ill. App. 3d 231, 390 N.E.2d 47.) Our review of the record reveals that these two co-offenders had been arrested and, admitting their own participation in the offenses, they implicated defendant as the third offender who beat the victim with a brick, resulting in his death. Therefore, the record supports the action of the trial court as proper.

Defendant’s final contention is that the court erred in denying the motion to suppress defendant’s statements. Defendant initially sought to suppress statements on the ground that evidence presented for the arrest warrant was insufficient to establish probable cause, and, as a consequence, defendant’s confession should have been suppressed. Defendant also claims that his confession was coerced due to physical and mental abuses. Specifically, defendant claims he was “choked repeatedly,” “kneed in the groin,” “told a story to repeat to the Assistant State’s attorney,” and “threatened by Thedford if he failed to confess.” However, the record shows that during the interrogation the defendant told the assistant State’s Attorney that he was not “mistreated,” “threatened,” “thirsty” or “in need of the bathroom.” Additionally, a photograph taken of defendant at the conclusion of defendant’s statement reflected no marks, bruises, or anything unusual in defendant’s appearance. Defendant also read and signed a waiver of constitutional rights form before giving a statement.

If there is a direct conflict between the State’s evidence and the defendant’s, it is the function of the trier of fact to resolve the issue of credibility. (People v. Manton (1977), 67 Ill. 2d 564, 367 N.E.2d 1313; People v. Zuniga (1973), 53 Ill. 2d 550, 293 N.E.2d 595.) When the evidence is merely conflicting, a court of review will not substitute its judgment for that of the trier of fact unless the evidence is so improbable as to raise a reasonable doubt of guilt. (People v. Akis (1976), 63 Ill. 2d 296, 347 N.E.2d 733; People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313.) Additionally, the finding of a trial court on a motion to suppress statements will not be disturbed unless it is contrary to the manifest weight of the evidence. People v. Hernandez (1982), 105 Ill. App. 3d 501, 434 N.E.2d 532.

From our review of the record, sufficient evidence was present to support a finding that the court’s ruling on defendant’s motion to suppress was not against the manifest weight of the evidence.

For the reasons stated, the decision of the circuit court of Cook County is affirmed.

Judgment affirmed.

McGLOON, P.J., and BUCKLEY, J., concur.