author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PATRICIA HANCOCK, Defendant-Appellant.
    First District (1st Division)
    No. 81—1028
    Opinion filed March 31, 1983.

      Elizabeth Clarke, of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello, and Louis F. Stalzer, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Defendant Patricia Hancock was convicted in a bench trial of murder and was sentenced to 30 years. On appeal, defendant raises the following issues: (1) whether the arrest of defendant was without probable cause which would require the suppression of subsequent statements made to the police; (2) whether defendant’s statement to the police was involuntary; (3) whether the trial court was required to admonish defendant pursuant to Supreme Court Rule 402; (4) whether defendant was denied her right to effective assistance of counsel; (5) whether the evidence established defendant’s guilt beyond a reasonable doubt; and (6) whether defendant’s sentence was excessive.

The record discloses that Patricia Hancock was charged by indictment with two counts of murder. The indictment alleged that on April 30, 1980, defendant threw Ronald Sheffield, her seven-month-old son, into a lagoon, which resulted in the drowning of the child.

Defendant filed two motions to suppress statements on the grounds that the statements were involuntary. Defendant also filed a motion to quash her arrest on the grounds that the police lacked probable cause to arrest her without a warrant.

At the suppression hearing, Officer Gerald Smith of the Chicago police department testified that at approximately 11:30 p.m. on April 30, 1980, he and his partner responded to a call for help at 7705 S. Eggleston Street in Chicago. The two officers were directed to a nearby lagoon in Auburn Park where they observed defendant standing. Defendant told the officers that someone had thrown her child into the lagoon. After the body of the infant was recovered from the lagoon, defendant and the child were taken to a hospital. Smith stated that he and other officers viewed defendant as being a victim and that there were no restrictions which were placed upon her.

Detective John Yucaitis testified that he arrived at the hospital at approximately 1 a.m. on May 1 and that he spoke with defendant. Yucaitis stated that he also spoke with defendant at 4:30 a.m. At both times, Yucaitis viewed defendant as a victim.

Assistant State’s Attorney Richard Loftus first spoke with defendant at approximately 1:15 a.m. on May 1 and again at 1:45 a.m. Both of these conversations occurred at the hospital. He next spoke with defendant at approximately 2 a.m. on May 1 at Auburn Park. Loftus also had another conversation with defendant at 3 a.m. at Auburn Park. Detective John Solecki stated that at approximately 1 a.m. on May 1, he and his partner took defendant to Auburn Park so that she could reenact the events of the prior evening. He stated that defendant screamed very loudly in her reenactment. Solecki indicated that defendant’s demeanor was normal and that she did not complain of being tired or in need of food or medication.

At 4:30 a.m. Assistant State’s Attorney Loftus spoke with defendant at the police station. After his conversation with defendant, she was left alone until approximately 9 a.m. at which time Loftus returned and found defendant in the same interview room. At approximately 9:15 a.m. on May 1, Detective Yucaitis advised defendant of her Miranda rights and placed defendant under arrest.

Richard O’Brien stated that he administered a polygraph examination to defendant at approximately 10:15 a.m. on May 1. Defendant was given her Miranda warnings and executed a waiver of liability. O’Brien stated that he observed no emotional response from defendant when he questioned her. He testified that he was led to conclude that there was no response because of the “recency of events and the subject’s possible fatigue.” He stated that he observed defendant yawn during the examination. Defendant told O’Brien that she had slept periodically the day before and that she had taken a nap between 6 and 8 p.m. on April 30. Defendant also told O’Brien that she was not taking any medication.

Detective Dennis McGuire stated that upon leaving the polygraph examination, he stopped at a fast-food restaurant. Defendant declined McGuire’s invitation to eat lunch. They arrived at the police station between 1 and 2 p.m. on May 1. Defendant did not complain of being tired or in need of medication.

Assistant State’s Attorney Michael Spivack spoke with defendant at 3:15 p.m. on May 1. He advised defendant of her rights and defendant stated that she wished to waive her rights and make a statement. Defendant did not complain of being tired or hungry. Spivack described defendant as being calm and alert.

At 9:30 p.m. on May 1, Assistant State’s Attorney Loftus spoke with defendant at the police station. He observed defendant asleep on a chair in the interview room at 12:30 a.m. Defendant was awakened after 30 minutes of sleep and at 2 a.m. on May 2, defendant was taken to the lagoon in Auburn Park. Upon returning from the lagoon, defendant gave a statement in the presence of a court reporter. After the statement had been typed, the witness was given the statement to review and to make any corrections. Loftus stated that defendant did not complain of being tired, hungry or in need of medication. Loftus stated that defendant appeared to have slept and that there was a bag of chicken in the interview room.

Ronald Sheffield stated that he was the father of the deceased infant and that he had lived with defendant for more than a year. He testified that the police would not permit him to see defendant when he requested to do so. He testified that he had left the police station at 7 a.m. on May 1 and that prior to that time, he had not been permitted to leave. He did not see defendant sleeping and he did not observe any food being brought to defendant. At approximately 4:30 p.m. on May 1, he brought chicken to the police station for defendant and one of the police officers gave the food to defendant. He also stated that on May 1, defendant was taking medication called teathallithium.

Following the close of the evidence, the court ruled that the statement given by defendant was not involuntary based upon its consideration of the totality of the circumstances. The court noted that defendant was confined approximately 30 hours, beginning on April 30 at 11:20 p.m. and ending on May 2 at 4:30 a.m. The trial judge stated that for 10 of the 30 hours, defendant was treated as a victim, rather than a suspect. He indicated that she was offered food and drink and that she had the opportunity to sleep if she wished. The court further stated that there was no showing that defendant was subjected to constant questioning by the State. The court then denied defendant’s motion to suppress the statement. Following the court’s ruling, defense counsel withdrew defendant’s motion to quash her arrest.

The matter then proceeded to trial before the court. All evidence introduced at trial was by stipulation. It was stipulated that Ronald Sheffield, the deceased son of defendant, was alive at 10 p.m. on April 30, 1980, and was dead at midnight on May 1, 1980. Stipulations were entered that two persons were at Auburn Park at approximately 11 p.m. on April 30 when they heard a woman state that two men dressed in white threw her child into the lagoon. It was stipulated that defendant told two police officers that three men approached her. One of the men grabbed defendant, one took her child and the third man told defendant that he was going to rape her. Defendant also told the officers that when she reached for the child, she was knocked down and that the man with her child threw the infant into the lagoon and fled.

It was also stipulated that defendant provided officers with the descriptions of two men. The parties stipulated that the body of the child was recovered from the lagoon and that defendant went to the hospital with the child. At the hospital, defendant made no response when she was asked what had happened. A stipulation was entered that the cause of death was by drowning.

It was further stipulated that a person who identified herself as defendant’s sister had accused defendant of not wanting the child and that defendant made no response. A stipulation was entered that defendant’s clothing was not soiled, although she claimed that she had been thrown to the ground by one of the alleged assailants. The defendant claimed that she had bruises on her arm to prove that she had been grabbed, but that the police officers observed only two scratch marks which appeared to be several days old. The defendant told two officers that the two men did not say anything to her at the time that her child was taken from her and she denied previously stating that one of the men threatened to rape her. It was stipulated that defendant told the officers that she did not go into the lagoon to save her child because if she had gone into the water, her clothing would be wet and the police would think that defendant was responsible for her child’s death.

A stipulation was entered that a police officer located a robbery case report of April 28, 1980, in which the victim was defendant. In the robbery report, defendant’s descriptions of the offenders were similar to the descriptions given to the police in this case. When defendant was asked about the similarities, she told the police that the assailants were the same on both occasions. When asked why she had not previously mentioned this, she stated that she did not want to “finger” the men. It was further stipulated that witnesses stated that defendant told them that the two men were dressed in white, but that she described dark clothing to the police. Defendant denied that she had stated that the offenders wore white clothing.

A stipulation was entered as to a conversation between Assistant State’s Attorney Michael Spivack, Detective Dennis McGuire and defendant. It was stipulated that defendant was first advised of her Miranda rights and that defendant was asked if she wanted to discuss the events of April 30. In this conversation, defendant stated that she left her home with her seven-month-old son at approximately 11 p.m. on April 30, 1980, to purchase a pack of cigarettes. As she was walking with the infant, two men approached her. She described both men to Spivack and McGuire and told them that she recognized the men. Defendant also stated that she thought the two men were the ones who had robbed her, but that she was not certain. She stated that one man grabbed the child and put the child in the lagoon. The other man told defendant to “shut up,” grabbed her by the coat and threw her to the ground. At this point, defendant screamed and the two men fled. It was stipulated that defendant told Spivack and McGuire that she was screaming and crying when she told a woman that someone threw her child into the lagoon. Defendant stated that she never told anyone that the men had tried to rape her. She also stated that she loved the child and that she never beat the infant.

A stipulation was entered that a man who was watching television in his home which was less than 100 feet from Auburn Park did not hear anyone scream during the course of the evening of April 30, 1980. It was stipulated that on the evening of April 30, 1980, a woman was in her home near Auburn Park and that the first unusual event of the evening was the arrival of the police and fire department. The woman did not hear anyone scream prior to that time.

The testimony of Detectives Mosher and Tusello of the Chicago police department was stipulated. It was stipulated that at approximately 4:15 a.m. on May 1, 1980, defendant volunteered that no one believed her and that she should have fabricated a story that her infant fell into the lagoon. At approximately 5:45 a.m. on the same morning, defendant informed the detectives that she wanted to tell them what had really occurred. She told the officers that she met a person named Larry at the lagoon and that they sat on the wall of the bridge and passed the infant between them. She stated that the child fell into the lagoon. When asked by Larry what she intended to do, she told him that she would tell the police that she was attacked by two men who threw the child into the lagoon. Defendant then went to a woman who was in a car and asked her to call the police. It was further stipulated that defendant told the detectives that she met Larry at a lounge on April 28, 1980, and that a barmaid named Mattie knew Larry.

A stipulation was entered that Assistant State’s Attorney Richard Loftus and Detective Mosher would testify to a conversation with defendant at 11:15 p.m. on May 1, 1980. Defendant was given her Miranda warnings. Defendant told the two men that she had lied to police officers in her story concerning the two attackers and that she now wished to tell another version. The stipulation indicated that this version of the events was similar to a written statement which defendant subsequently made. It was stipulated that defendant was taken to Auburn Park between 1 a.m. and 2 a.m. with Detectives Yucaitis and Leracz. At that time, Loftus, Yucaitis and Leracz went to 7705 S. Eggleston, while two other officers took defendant to the bridge over the Auburn Park lagoon.

It was stipulated that Investigators Martin and Solecki stood on the bridge over the lagoon with defendant and asked that she yell as she did at the time her infant was dropped into the water. A stipulation was entered that while standing outside 7705 S. Eggleston, Loftus, Yucaitis and Leracz clearly heard defendant’s scream. The location at which defendant and Larry were seated on the bridge was identified and the point at which the child was dropped was eight to 10 feet above the water.

It was further stipulated that defendant made a statement upon returning to the police station. The statement was then published. The statement repeated the version of events in which defendant met Larry at the lagoon and that the child had been accidentally dropped while being passed between the two. In her statement, defendant was described as screaming and calling for help.

A stipulation was entered that Mattie, the barmaid who defendant claimed knew Larry, would testify that she did not know Larry or anyone fitting the description of Larry. It was also stipulated that another woman would testify that she and her friend were sitting in a car near Auburn Park on April 30, 1980, at approximately 11 p.m. when she saw a woman carrying a child walk past the car. The woman would testify that a short while later, defendant approached her car and requested that the woman call the police because someone threw her child into the lagoon. The woman described defendant’s voice as “calm.” The woman also would testify that she would have heard any screams and that, aside from defendant, she did not notice anyone else on the street.

Following closing arguments, the court found defendant guilty of murder. The court stated that the evidence was circumstantial, but that the evidence excluded every reasonably possibility of defendant’s innocence. The court sentenced defendant to a term of 30 years. Defendant appeals.

Defendant first argues that she was unlawfully held for 30 hours until she had given the police certain statements. She maintains that there was no probable cause to arrest her at the time she was taken into custody and that, therefore, the statements obtained from her should be suppressed. (See Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248.) Defendant also cites People v. Townes (1982), 91 Ill. 2d 32, 435 N.E.2d 103, cert. denied (1982), 459 U.S._, 74 L. Ed. 2d 143, 103 S. Ct. 174, in which the supreme court held that an interrogation over the course of 12 hours without probable cause violated defendant’s fourth amendment rights and that, therefore, the statement which defendant gave to the police should be suppressed. Defendant also contends that the trial court erred in concluding that her statement was voluntary.

As to defendant’s contention that the police lacked probable cause to arrest defendant, the record discloses that subsequent to the court’s denial of defendant’s motion to suppress her statement, defense counsel withdrew the motion to suppress defendant’s arrest. Therefore, there was no burden placed upon the State to come forward with evidence to establish whether defendant’s arrest was supported by probable cause. As in People v. Calderon (1981), 101 Ill. App. 3d 469, 476, 428 N.E.2d 571, 575, a case which raises a similar issue, “it is not possible for us to say what the full evidence might have been had the State been required to justify the arrest.” Since the issue of whether defendant’s arrest was supported by probable cause was never developed through the presentation of evidence, our consideration of this issue would be purely speculative and, therefore, we decline to consider this issue. See People v. Calderon.

Defendant next argues that the trial court should have suppressed defendant’s statement because it was not voluntary because she was extensively questioned over a period of 30 hours. Defendant points to the conclusion of the polygraph examiner who opined that defendant was not in a proper state of mind to submit to a polygraph examination, but that the court found that she was in a proper frame of mind 17 hours later. Defendant maintains that it is difficult to support the court’s finding in this case because during the 17-hour period, defendant was subjected to “intense interrogation.” Defendant also contends that she was questioned in “relays” by the police and the intense questioning and the lack of sleep overcame her free will.

In determining whether a statement given is voluntary, it is necessary to establish the totality of the circumstances surrounding the statement. (People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601, cert. denied (1973), 412 U.S. 918, 37 L. Ed. 2d 144, 93 S. Ct. 2731.) The test which has been used is “whether [a statement] has been made freely, voluntarily and without compulsion or inducement of any sort or whether defendant’s will was overcome at the time he confessed.” (People v. Prim (1972), 53 Ill. 2d 62, 70, 289 N.E.2d 601, 606.) In determining whether a statement is voluntary, the trial court need not be convinced beyond a reasonable doubt that the statement is voluntary. (People v. Lopez (1981), 93 Ill. App. 3d 152, 416 N.E.2d 1127.) Additionally, the finding of the trial court will not be disturbed on appeal unless the finding is contrary to the manifest weight of the evidence. (People v. Prim; People v. Lopez.) At the time the trial court ruled on defendant’s motion to suppress the statement, the court noted that there was testimony from the witnesses that defendant appeared to be alert and responsive at all times and that she did not complain about being tired, in need of food or drink or in need of medication. The trial judge stated that defendant had taken naps on occasion. The court also noted that it was satisfied that the State had met its burden of establishing that the statement was voluntary. Based upon our review of the record and the arguments of the parties, we conclude that the finding of the trial court that defendant’s statement was voluntary is not contrary to the manifest weight of the evidence and, therefore, there was no error in the court’s denial of defendant’s motion to suppress the statement.

Defendant next urges that Supreme Court Rule 402 (87 Ill. 2d R. 402) requires the court to give certain admonishments to defendant where defendant pleads guilty to an offense. Defendant contends that the stipulated bench trial in the instant case is equivalent to a guilty plea and that, therefore, the court committed reversible error when it failed to give her the required admonishments.

In People v. Fair (1975), 29 Ill. App. 3d 939, 332 N.E.2d 51, and People v. Ford (1976), 44 Ill. App. 3d 94, 357 N.E.2d 865, it was held that where there is a stipulation as to the evidence which would be presented and defendant preserves an actual or purported defense to the offense charged, admonitions pursuant to Supreme Court Rule 402 (87 Ill. 2d R. 402), are not required. We consider these cases to be controlling in the instant appeal. Defendant only stipulated to the evidence presented, not her guilt or that the evidence was sufficient to establish her guilt. Additionally, defendant also preserved her legal defense that the trial court erred in denying her motion to suppress the statement given to police. Therefore, the court did not err in its failure to provide defendant with the admonishments required by Supreme Court Rule 402. See also People v. Daminski (1980), 80 Ill. App. 3d 903, 400 N.E.2d 708.

Defendant argues that she was denied her right to effective assistance of counsel because her counsel failed to make a motion to contest a violation of her fourth amendment rights which occurred when she was arrested without probable cause. She maintains that had this motion been made, her statement to the police would have been suppressed and that the outcome of the trial would have been changed.

The test for determining whether defendant was denied her right to effective assistance of counsel is whether defendant’s attorney was actually incompetent and caused substantial prejudice to defendant such that the outcome of the case was probably changed. (People v. Talley (1981), 97 Ill. App. 3d 439, 422 N.E.2d 1084.) In evaluating the representation afforded defendant, it is necessary to examine the totality of counsel’s conduct. (People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677.) Additionally, errors in judgment or trial strategy do not establish the incompetency of counsel. From the record, it appears that counsel’s decision to withdraw the motion to suppress defendant’s statement on the grounds that it was the fruit of an unlawful arrest was a tactical decision which counsel made. We cannot conclude that the decision to withdraw the motion rendered his assistance to defendant ineffective. Further, the failure of counsel to make a motion does not result in counsel’s assistance to be deemed per se ineffective. (See People v. Reppa (1982), 104 Ill. App. 3d 1123, 433 N.E.2d 1091.) Accordingly, we hold that defendant was not denied her right to effective assistance of counsel.

Defendant next urges that the evidence failed to establish her guilt of murder beyond a reasonable doubt. Section 9 — 1(a) of the Criminal Code of 1961 (111. Rev. Stat. 1979, ch. 38, par. 9 — 1(a)) states, in pertinent part:

“A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
(1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another;» or
(2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another; ***.”

The evidence which resulted in defendant’s conviction was entirely circumstantial. Where the only evidence of a homicide is circumstantial, the guilt of the accused must be thoroughly established so as to exclude every other reasonable hypothesis. (People v. Lewellen (1969), 43 Ill. 2d 74, 250 N.E.2d 651.) The stipulated evidence offered at trial failed to satisfactorily establish the requisite mental state necessary to sustain a conviction for murder. At trial, it was stipulated that if a person who identified herself as a sister of defendant was called to testify, she would state that she accused defendant of never wanting the child and that defendant did not respond to the accusation. It appears that this was the only evidence which might be considered probative of defendant’s mental state. During the hearing on defendant’s post-trial motion, the State conceded that they were not certain of the person involved in the foregoing conversation or of whether the State could have produced such a witness. The record in this case leaves a reasonable doubt as to whether defendant possessed the requisite mental state to be guilty of murder.

The evidence in this case indicates that defendant was guilty of involuntary manslaughter, which is a lesser included offense of murder. (People v. Suerth (1981), 97 Ill. App. 3d 1005, 423 N.E.2d 1185.) Section 9 — 3(a) of the Criminal Code of 1961 (111. Rev. Stat. 1979, ch. 38, par. 9 — 3(a)) states in pertinent part:

“A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly ***.”

It has been stated that the crux of the offense of involuntary manslaughter is recklessness. (People v. Simpson (1978), 74 Ill. 2d 497, 384 N.E.2d 373.) Involuntary manslaughter does not require felonious intent as does murder; rather, the only mental state required for involuntary manslaughter is the conscious disregard of a substantial and unjustifiable risk. People v. Suerth; People v. Johnson (1979), 70 Ill. App. 3d 149, 388 N.E.2d 225.

As we previously noted, the evidence in this case does not establish, beyond a reasonable doubt, defendant’s felonious intent. We are satisfied, however, that the evidence in this case proves beyond a reasonable doubt that defendant’s conduct involved the wanton and reckless doubt that defendant’s conduct involved the wanton and reckless disregard for the welfare, safety and life of her infant son. It appears from the record that the death of her son occurred because of defendant’s reckless conduct. Accordingly, defendant’s conviction for murder is reduced to the lesser included offense of involuntary manslaughter.

Defendant’s final contention is that the sentence imposed is excessive. Since we have concluded that the evidence failed to establish beyond a reasonable doubt defendant’s guilt of murder, but that it was sufficient to establish her guilt of involuntary manslaughter, it is necessary to remand this action to the trial court for an appropriate sentence.

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

Judgment affirmed in part; reversed and remanded in part.

McGLOON and GOLDBERG, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WHITE

license: Public Domain

text:
    WILLIAM PAVLOV, Adm’r of the Estate of Frank Magadan, Deceased, Plaintiff-Appellee, v. ROGER KONWALL, Defendant-Appellant.
    First District (3rd Division)
    No. 81—2117
    Opinion filed March 30, 1983.
    Sweeney and Riman, Ltd., of Chicago (Kevin F. Donohue, of counsel), for appellant.
    William D. Maddux & Associates, of Chicago (William D. Maddux and Bruce M. Lane, of counsel), for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

This is a permissive interlocutory appeal from the order of the circuit court of Cook County denying the motion of defendant, Roger Konwall, M.D., to dismiss the second amended complaint brought under the Wrongful Death Act (111. Rev. Stat. 1979, ch. 70, par. 2). The plaintiff is William Pavlov, administrator of the estate of Frank Magadan, deceased.

Pavlov’s original complaint was filed on March 3, 1980, alleging inter alia that: Magadan died on March 5, 1978, various negligent acts of defendant proximately caused his death; and Pavlov was the administrator of the estate of decedent who left surviving him his wife who suffered pecuniary loss. On the same day that this complaint was filed, Pavlov was appointed administrator of the estate, on the motion of attorneys, William D. Maddux and Associates. The appointment was made pursuant to the Wrongful Death Act (111. Rev. Stat. 1979, ch. 70, par. 2.1), which provides that a court may appoint a special administrator “upon motion of any person who would be entitled to a recovery” under the Act. William D. Maddux and Associates were not such persons. Konwall moved to dismiss the complaint upon the ground that Pavlov was not a proper party plaintiff. The court dismissed the complaint with prejudice but later vacated its dismissal order and reinstated the cause. Pavlov then filed an amended complaint that was subsequently stricken.

On January 26, 1981, Pavlov was again appointed administrator of decedent’s estate, this time apparently on motion of persons who would be entitled to a recovery under the Act. On March 23, 1981, he ' filed a second amended complaint which made substantially the same allegations as his original complaint. Konwall again moved to dismiss the cause of action alleging that when the original complaint was filed on March 3, 1980, Pavlov was not a proper party plaintiff. The motion further alleged that Pavlov’s appointment as administrator on January 26, 1981, was beyond the two-year statute of limitations applicable to wrongful death actions, and therefore could not relate back .to the original complaint since the lack of a proper party plaintiff made that filing a complete nullity. The trial court denied defendant’s motion to dismiss and certified the following question for appeal: “Does a proper appointment of an administrator relate back to the initial filing of a complaint under the Wrongful Death Act?”

The Illinois Wrongful Death Act requires that an action be brought by and in the names of the personal representatives of the deceased person within two years after death. (111. Rev. Stat. 1979, ch. 70, par. 2.) However, section 46(1) of the Civil Practice Act provides that prior to final judgment an amendment may be allowed to introduce “any party who ought to have been joined as plaintiff or defendant.” (111. Rev. Stat. 1979, ch. 110, par. 46(1).) Section 46 further provides that:

“The cause of action *** set up in any amended pleading shall not be barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if the time prescribed or limited had not expired when the original pleading was filed, and if it shall appear from the original and amended pleadings that the cause of action asserted *** in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact *** which is a necessary condition precedent to the right of recovery *** if the condition precedent has in fact been performed, and for the purpose of preserving as aforesaid the cause of action ***.” (111. Rev. Stat. 1979, ch. 110, par. 46(2).)

The relation-back doctrine was included in section 46 to implement the legislative intent to preserve causes of action including those sounding in wrongful death against loss by reason of technical rules of pleading. Metropolitan Trust Co. v. Bowman Dairy Co. (1938), 369 Ill. 222, 15 N.E.2d 838; see Halberstadt v. Harris Trust & Savings Bank (1973), 55 Ill. 2d 121, 124-25, 302 N.E.2d 64.

This court has applied the relation-back doctrine under circumstances similar to those before us. In Redmond v. Central Community Hospital (1978), 65 Ill. App. 3d 669, 382 N.E.2d 95, the plaintiff filed a timely wrongful death action in her individual capacity and not as the personal representative of her deceased husband. After the expiration of the limitation period, the plaintiff amended her complaint making substantially similar allegations except that following the limitations period she had become the administratrix of decedent’s estate. The appellate court held that the amended complaint related back to the time of the filing of the original complaint and, thus was timely filed under section 46 of the Civil Practice Act. The Redmond court reasoned:

“The amended complaint filed more than two years after decedent’s death made substantially the same allegations, except that plaintiff appears in her capacity as administratrix of decedent’s estate. There appears no question that the cause of action alleged in the third amended complaint was that intended to be brought in the original complaint and that they arose out of the same occurrence.” 65 Ill. App. 3d 669, 677.

In view of the purpose behind section 46 and the rationale of Redmond, we believe that in the instant case the second amended complaint relates back to the time of the filing of the original complaint. Both pleadings make substantially the same allegations and, the cause of action asserted in the amended and original pleadings arose out of the same occurrence or transaction. In both pleadings the estate of decedent has been named as the interested party and it has been clear from the start that Pavlov intended to bring the action as administrator of that estate. That Pavlov was not properly named administrator on the motion of the decedent’s heirs until after the limitations period had run is a technical consideration which, in light of section 46, should not prevent the cause from being decided on its merits in furtherance of justice. See Halberstadt v. Harris Trust & Savings Bank (1973), 55 Ill. 2d 121, 124-25; Frey v. Belleville News-Democrat, Inc. (1978), 64 Ill. App. 3d 495, 499, 381 N.E.2d 705.

Konwall notes, however, that the time fixed by the Wrongful Death Act for the commencement of an action is a condition precedent to the right to bring an action under the Act. (111. Rev. Stat. 1979, ch. 70, par. 2.) Therefore, he argues that Pavlov’s attempts, subsequent to the expiration of the statute of limitations, at filing an amended complaint and an amended motion to be appointed properly as administrator and to have them relate back to the date of filing the original complaint were clearly erroneous. He also argues that because the original complaint was not brought by a proper party, it was a nullity and, therefore, there was nothing to which the amended complaint could relate back.

Konwall relies on Scott v. Skokie Valley Community Hospital (1977), 54 Ill. App. 3d 766, 370 N.E.2d 107. In Scott, a wrongful death action was timely filed in the name of an administrator, but letters of administration were not issued until more than two years after decedent’s death when the probate division of the court ordered their issuance nunc pro tunc as of the date of the filing of the wrongful death action. The sole question on appeal, as there stated by this court, was “whether a court order none pro tunc may relate back to a date prior to the commencement of proceedings in that court.” (Emphasis added.) (Scott v. Skokie Valley Community Hospital (1977), 54 Ill. App. 3d 766, 767.) There the court held that the probate court lacked authority to so amend its order nunc pro tunc.

We believe that Scott is distinguishable from the case at bar. In that case no probate proceedings were commenced until well after the limitation period had passed. Furthermore, in Scott the applicability of section 46 was not addressed. In the instant case the wrongful death action and the proceeding in which Pavlov was first appointed administrator of the estate all commenced within the statute of limitations.

Konwall argues that both the limitations period prescribed by the Wrongful Death Act and the requirement that the action be brought in the name of the personal representative of the deceased are conditions precedent to recovery under the Act. However, this court has held that an amendment under section 46 of the Civil Practice Act can relate back to cure a defective pleading which did not set forth a condition precedent under the Wrongful Death Act. See Redmond v. Central Community Hospital (1978), 65 Ill. App. 3d 669, 676-77, and authorities cited therein.

Accordingly, for the reasons set forth above we hold that the proper appointment of Pavlov as administrator did relate back to his initial filing of a complaint under the Wrongful Death Act and, therefore, the trial court properly denied Konwall’s motion to dismiss.

Affirmed.

McNAMARA, P.J., and McGILLICUDDY, J., concur.


author: JUSTICE O’CONNOR

text:
    ERWIN BERNARD FRAHM, JR., et al., Plaintiffs-Appellants, v. RONALD S. URKOVICH et al., Defendant-Appellee.
    First District (1st Division)
    No. 82—0311
    Opinion filed March 31, 1983.

      Much, Shelist, Freed, Denenberg, Ament & Eiger, P.C., of Chicago (Anthony C. Valiulis and Steven A. Kanner, of counsel), for appellants.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Dennis J. Horan, George W. Spellmire, and Stephen R. Swofford, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiffs brought this action for injunctive relief and damages arising out of a certain real estate transaction. Count III of the amended complaint is brought under the Illinois Consumer Fraud and Deceptive Business Practices Act (111. Rev. Stat. 1981, ch. 121V2, par. 261 et seq.) (the Act), and alleges that defendant Urkovich, while acting as plaintiffs’ attorney, misrepresented certain facts and failed to disclose other material facts to them in conjunction with said transaction. The trial court dismissed count III for failure to state a cause of action under the Act and plaintiffs appeal. We affirm.

The essential factual allegations of plaintiffs’ amended complaint, which are taken as true for the purposes of defendants’ motion to dismiss and of this appeal, include the following:

In 1976 plaintiffs retained defendant Urkovich as their attorney to represent them in the purchase and development of certain real estate. Upon instructions from defendant, plaintiffs executed a trust which was to deal with the real estate. Plaintiffs were induced by Urkovich and another defendant unknowingly to direct the trust to enter into a certain purchase agreement which was unfavorable to them as purchasers. In addition, during the course of negotiations which preceded the execution of the agreement and the payment by plaintiffs of a substantial sum as “earnest money,” Urkovich made numerous representations which he knew or should have known were incorrect or incomplete with regard to the financing and construction of certain buildings on the property and failed to inform plaintiffs of other material facts regarding his professional and business ties with the other defendants. Subsequently, without plaintiffs’ knowledge, defendant prepared an additional agreement providing for the sale of the structures to a corporation set up by defendant and headed by plaintiffs’ son. This agreement also gave substantial advantages to the seller and left plaintiffs with little or no recourse in the event of seller’s default. Finally, in 1980 plaintiffs were induced to cosign a bank note in the amount of $100,000, pledging $52,000 of their own money as collateral for the loan. The money was used in part to finance the project and for the benefit of certain defendants. By July of 1980, although the sellers were in continuous default for failure to complete the buildings according to schedule, purported notices of default were mailed to plaintiffs. Plaintiffs allege that as a result of defendant’s actions and misrepresentations they have lost their entire investment in the project.

Plaintiffs filed a seven-count amended complaint against defendant Urkovich and others. In addition to the count under the Act, plaintiffs filed counts against Urkovich for attorney malpractice, breach of fiduciary duty, fraudulent inducement and conspiracy.

On appeal, plaintiffs argue that they are “consumers” under the Act and that the legislatively mandated liberal construction of the Act favors the inclusion of legal services within its ambit. In essence, plaintiffs seek a broad interpretation of the Act which would impose statutory liability for misconduct amounting to professional malpractice. We do not believe, however, that even the most liberal statutory interpretation indicates the application of this consumer protection statute to the conduct of an attorney engaged in the actual practice of law and, accordingly, we find that plaintiffs do not fall within the class of “consumers” which the statute was designed to protect.

The stated purpose of the Act, as set forth in its preamble, is “to protect consumers and borrowers and businessmen against fraud, unfair *** or deceptive acts or practices in the conduct of any trade or commerce ***.” (Emphasis added.) (111. Rev. Stat. 1981, ch. 121V2, par. 261 et seq.; see also Scott v. Association for Childbirth at Home, International (1981), 88 Ill. 2d 279, 430 N.E.2d 1012.) “Trade and commerce” are defined in the Act to include “the advertising, offering for sale, sale, or distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value wherever situated, and shall include any trade or commerce directly or indirectly affecting the people of this State.” Ill. Rev. Stat. 1981, ch. I2IV2, par. 261(f).

Plaintiffs rely on additional definitions contained in the Act and rules of statutory construction which, they argue, bring them within the intent and meaning of the Act. We disagree.

A “consumer” under the Act includes: “any person who purchases or contracts for the purchase of merchandise not for resale in the ordinary course of his trade or business but for his use or that of a member of his household.” (111. Rev. Stat. 1981, ch. I2IV2, par. 261(e).) “Merchandise” is defined to include “any objects, wares, goods, commodities, intangibles, real estate situated outside the State of Illinois, or services.” 111. Rev. Stat. 1981, ch. VZV-k, par. 261(b).

Plaintiffs assert their standing to bring a private action as “consumers” who purchased “services” under the Act. In addition, plaintiffs claim that defendant’s misrepresentations and material omissions of fact, as alleged in count III of their amended complaint, constituted conduct of the type specifically prohibited by section 2 of the Uniform Deceptive Trade Practices Act (111. Rev. Stat. 1981, ch. 1211/2, par. 312), which is incorporated into the Act under section 2 of the Act (111. Rev. Stat. 1981, ch. 121V2, par. 262), and which states in relevant part:

“A person engages in a deceptive trade practice when, in the course of his business, vocation or occupation, he:
* * *
(7) represents that goods or services are a particular standard, quality or grade or that goods are a particular style or model, if they are of another;
* * *
(12) engages in any other conduct which similarly creates a likelihood of confusion or of misunderstanding.”

In order to provide the protection intended by the legislature, the Act is to be liberally construed. (111. Rev. Stat. 1981, ch. I2IV2, par. 271a; Hurlbert v. Cottier (1978), 56 Ill. App. 3d 893, 372 N.E.2d 734.) Plaintiffs argue that the liberal construction provision of the Act, combined with numerous Illinois decisions recognizing the need for a flexible interpretation of section 2 of the Act, mandates the inclusion of legal services. They further reason that since the language of the Act itself does not specifically exclude legal services from those included within the definition of “merchandise,” a legislative intent to include those services must be assumed.

Plaintiffs cite the United States Supreme Court’s analysis in Goldfarb v. Virginia State Bar (1975), 421 U.S. 773, 44 L. Ed. 2d 572, 95 S. Ct. 2004, in support of their position. In Goldfarb, the court held that a claim based on a minimum fee schedule for title examinations published by a county bar association fell within the scope of the Sherman Antitrust Act. There, the statute before the court was designed to bring within it “every person engaged in business whose activities might restrain or monopolize commercial intercourse among the states.” (421 U.S. 773, 788, 44 L. Ed. 2d 572, 585, 95 S. Ct. 2004, 2014, citing United States v. South-Eastern Underwriters Association (1944), 322 U.S. 533, 88 L. Ed. 1440, 64 S. Ct. 1162.) As in this case, the statute did not expressly exclude all professionals.

Based on its recognition that the practice of law as a profession does have a “business aspect” and, specifically, that anticompetitive activities by lawyers could exert a restraint on commerce, the court in Goldfarb refused to apply a blanket exemption from Federal antitrust laws to the “learned professions.” (421 U.S. 773, 788, 44 L. Ed. 2d 572, 585, 95 S. Ct. 2004, 2014.) Contrary to plaintiffs’ assertions, however, the Goldfarb court expressly limited its holding to the situation specifically before it. (421 U.S. 773, 788-89 n.17, 44 L. Ed. 2d 572, 585 n.17, 95 S. Ct. 2004, 2013 n.17.) Thus, both that case and Bates v. State Bar (1977), 433 U.S. 350, 53 L. Ed. 2d 810, 97 S. Ct. 2691, also cited by plaintiffs, dealt only with commercial aspects of the legal profession through activities which would have a direct effect on the consuming public and not with the practice of law itself. (See also Selman v. Harvard Medical School (S.D. N.Y. 1980), 494 F. Supp. 603, 621, aff’d (2d Cir. 1980), 636 F.2d 1204.) The interpretation urged by plaintiffs here, however, would necessarily equate the practice of law with an ordinary commercial enterprise, a proposition for which we find no support in case law or public policy. In fact, the court in Goldfarb specifically stated that “[i]t would be unrealistic to view the practice of professions as interchangeable with other business activities.” 421 U.S. 773, 788-89 n.17, 44 L. Ed. 2d 572, 585 n.17, 95 S. Ct. 2004, 2013 n.17.

This distinction was also recognized by our supreme court in Scott v. Association for Childbirth at Home, International (1981), 88 Ill. 2d 279, 288, which stated:

“The [Consumer Fraud and Deceptive Business Practices] Act is a regulatory and remedial enactment intended to curb a variety of fraudulent abuses and to provide a remedy to individuals injured by them. Its stated purpose *** is to protect Illinois consumers, borrowers, and businessmen against fraud, unfair methods of competition, and other unfair and deceptive business practices.” (Emphasis added.)

Plaintiffs also cite cases from other jurisdictions which have held legal services to be included within the definition of trade or commerce under similar acts. In DeBakey v. Staggs (Tex. Civ. App. 1980), 605 S.W.2d 631, aff’d (Tex. 1981), 612 S.W.2d 924, a case brought under the Texas Deceptive Trade Practices Act, plaintiffs sued their former attorney for failure to obtain a change of name. In holding that a client is a “consumer” of legal services as defined under the Texas act, the court reasoned that “[t]he attorney sells legal services and the client purchases them. Unless exempted elsewhere in the statutes, the attorney as well as other professionals are subject to the provisions of the Act.” (605 S.W.2d 631, 633.) The court’s reasoning, however, was clearly influenced by the fact that physicians and health care providers had been specifically exempted from the provisions of the Texas act where the litigation is based on a claim of negligence and that an amendment to the Act which would have exempted all professional services had been tabled. See DeBakey v. Staggs (Tex. Civ. App. 1980), 605 S.W.2d 631, 633.

In Bourland v. State (Tex. Civ. App. 1975), 528 S.W.2d 350, also cited by plaintiffs, an attorney was held liable under the Texas act as a result of his involvement in a conspiracy to obtain property. As that case did not specifically deal with the issue of whether the practice of law falls within the statutory definition of trade or commerce, it is inapplicable to the case at bar.

Plaintiffs also cite Reed v. Allison & Perrone (La. App. 1979), 376 So. 2d 1067, where the Louisiana Court of Appeals determined that the advertising of legal services was sufficient to bring an attorney’s actions within the framework of “trade or commerce” required for “services” subject to that State’s consumer protection statute. Plaintiffs urge that the court’s reasoning in Reed is not limited to advertising but would be applicable to other actions by an attorney in the performance of services to a client. We reject this argument based on the reasons set forth in our previous discussion of Goldfarb and because we do not construe the Illinois statute to mandate such broad application.

It is a cardinal rule of construction that statutes must be construed so as to ascertain and give effect to the intention of the General Assembly as expressed in the statute (People ex rel. Kucharski v. Adams (1971), 48 Ill. 2d 540, 273 N.E.2d 7), and, absent some clear legislative intent to the contrary, terms are to be given their ordinary and popularly understood meaning. (General Motors Corp. v. Industrial Com. (1975), 62 Ill. 2d 106, 338 N.E.2d 561.) The provisions of the Act limit its application to “the conduct of any trade or commerce.” (111. Rev. Stat. 1981, ch. 1211/2, par. 262.) In Chirikos v. Yellow Cab Co. (1980), 87 Ill. App. 3d 569, 410 N.E.2d 61, the court held that the discharge of a legislative function by an elected body did not constitute “trade or commerce” under the Act. We conclude that the legislature’s use of “trade or commerce” in defining the application of the Act was not meant to include the actual practice of law.

Lastly, we do not interpret the liberal construction requirements to mean that liability under the Act is completely open-ended. Rather, we believe that the Act is intended to reach practices of the type which affect consumers generally and is not available as an additional remedy to redress a purely private wrong. See Exchange National Bank v. Farm Bureau Life Insurance Co. (1982), 108 Ill. App. 3d 212, 215, 438 N.E.2d 1247; Evanston Motor Co. v. Mid-Southern Toyota Distributors, Inc. (N.D. Ill. 1977), 436 F. Supp. 1370; see also Lightfoot v. MacDonald (1976), 86 Wash. 2d 331, 544 P.2d 88.

For the foregoing reasons, we hold that count III was properly dismissed for failure to state a cause of action under the Act.

Affirmed.

McGLOON and CAMPBELL, JJ., concur.


author: JUSTICE LORENZ

text:
    LINDA LEE GORENZ, Plaintiff-Appellant, v. JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, Defendant-Appellee.
    First District (5th Division)
    No. 82—654
    Opinion filed March 31, 1983.
    Jack Ring, Ltd., of Chicago (Jack Ring and Richard L. Wattling, of counsel), for appellant.
    Peterson, Ross, Schloerb & Seidel, of Chicago (J. Robert Geiman and David R. Schmidt, of counsel), for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff filed an action to recover an accidental death benefit provided under a life insurance policy which her husband had with defendant. The controlling question under the pertinent policy provision is whether, at the time of his accidental death, “the insured was a passenger in or upon a public conveyance operated by a common carrier for passenger service.” The trial court entered summary judgment on behalf of the insurer, and plaintiff appeals, contending that the trial court misconstrued this policy provision.

We affirm. The following undisputed facts are material to our decision.

Richard Gorenz was struck and killed by a westbound Burlington Northern Railroad train on January 26, 1978, at the railroad’s Lisle, Illinois, station, as he walked across the carrier’s tracks while on his way to board an eastbound Burlington Northern train. It is undisputed that Richard’s death was accidental, and his life insurance policy provided for a $10,000 accidental death benefit if “the accident injury was sustained while the insured was a passenger in or upon public conveyance operated by a common carrier for passenger service.”

On cross-motions for summary judgment, the circuit court held that even if Richard was considered a passenger of the railroad at the time of his death, he was not “a passenger in or upon a public conveyance.”

We agree.

“It is fundamental that where the terms of an insurance policy are clear and unambiguous the court must give effect to the intent of the parties to the contract in accordance with the clear expression of agreement.” (McCann v. Continental Casualty Co. (1956), 8 Ill. 2d 476, 482. Accord, Thornton v. Illinois Founders Insurance Co. (1981), 84 Ill. 2d 365, 371; Kirk v. Financial Security Life Insurance Co. (1978), 75 Ill. 2d 367, 370-71.) “Again, contracts of insurance, like other contracts, are to be construed according to the sense and meaning of the terms which the parties have used, and if they are clear and unambiguous their terms are to be taken and understood in their plain, ordinary, and popular sense.” Moscov v. Mutual Life Insurance Co. (1944), 387 Ill. 378, 383. Accord, Dora Township v. Indiana Insurance Co. (1980), 78 Ill. 2d 376, 378; Weiss v. Bituminous Casualty Corp. (1974), 59 Ill. 2d 165, 170-71; Canadian Radium & Uranium Corp. v. Indemnity Insurance Co. of North America (1952), 411 Ill. 325, 332.

“The parties to an insurance contract may incorporate in it such provisions, not in violation of law, as they, choose; and it is the duty of the courts to construe and enforce the contract as made. Manifestly, courts have neither the right nor the power to make a new contract for the parties.” Moscov v. Mutual Insurance Co. (1944), 387 Ill. 378, 383. Accord, Zitnik v. Burik (1946), 395 Ill. 182, 187; Coons v. Home Life Insurance Co. (1938), 368 Ill. 231, 238.

Giving effect to the plain, ordinary, and unambiguous language of the disputed policy provision, Richard Gorenz was not “in or upon a public conveyance” when he was run over by a train. To hold otherwise would require us to rewrite the policy and disregard the unambiguous provision that the disputed death benefit would not apply unless the insured was “in or upon a public conveyance” when he was injured. (See, e.g., Quinn v. New York Life Insurance Co. (1923), 224 Mich. 641, 195 N.W. 427; Ludwig v. Massachusetts Mutual Life Insurance Co. (7th Cir. 1975), 524 F.2d 376 (applying Michigan law).) We lack authority to disregard this unambiguous policy provision, and the judgment of the circuit court is accordingly affirmed.

Affirmed.

SULLIVAN and MEJDA, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v DARRYL BELL et al., Defendants-Appellants.
    First District (5th Division)
    Nos. 81—929, 81—931, 81—953, 81—1110 cons.
    Opinion filed March 25, 1983.

      James J. Doherty, Public Defender, of Chicago (Donald S. Honchell, Assistant Public Defender, of counsel), for appellants Darryl Bell, William Martin, and Kevin Mitchell.
    Steven Clark and Gordon Berry, both of State Appellate Defender’s Office, of Chicago, for appellant Vincent Bevley.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Shapiro, Anthony John Calabrese, Michael J. Kelly, and Peter Delonges, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Defendants Darryl Bell, Kevin Mitchell, William Martin, and Vincent Bevley were convicted, after trial by jury, of murder (one count each), attempted murder (five counts each), and armed violence based on attempted murder (five counts each). (See 111. Rev. Stat. 1979, ch. 38, pars. 9 — 1(a), 8 — 4(a), and 33A — 2.) No issue is raised on the sentences imposed by the trial court, but the defendants assert that their convictions should be reversed for the following reasons:

1. The evidence is not sufficient to prove that (a) Mitchell and Bell intended to kill the attempted-murder complainants, or (b) that Bevley and Martin are accountable for the conduct of their codefendants.

2. The court erred when it declined to answer a question submitted by the jury during its deliberations.

3. A prosecutor made improper comments during argument.

4. It was improper to enter concurrent convictions on the attempted-murder and armed-violence verdicts.

We disagree with the first three contentions, and accordingly, we affirm in part and vacate in part. Before stating the evidence which is material to our decision, it is important to clarify our role in reviewing the adequacy of evidence to support criminal convictions.

“The elementary but crucial difference between burden of proof and scope of review is, of course, a commonplace in the law. The difference is most graphically illustrated in a criminal case. There the prosecution is generally required to prove the elements of the offense beyond a reasonable doubt. But if the correct burden of proof was imposed at the trial, judicial review is generally limited to ascertaining whether the evidence relied upon by the trier of fact was of sufficient quality and substantiality to support the rationality of the judgment. In other words, an appellate court in a criminal case ordinarily does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt, but whether the judgment is supported by substantial evidence.” Woodby v. Immigration & Naturalization Service (1966), 385 U.S. 276, 282, 17 L. Ed. 2d 362, 367, 87 S. Ct. 483, 486; see also Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (holding that when reviewing the sufficiency of evidence to support a State criminal conviction, "the relevant question [under the due process clause of the fourteenth amendment] is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt”).

Illinois reviewing courts follow the same approach when evaluating evidence in criminal cases, and where there is sufficient evidence of guilt, if believed by the jury, to prove defendant guilty beyond a reasonable doubt, a conviction will not be reversed. (See People v. Goodpaster (1966), 35 Ill. 2d 478, 480.) As the supreme court explained in People v. Henderson (1947), 398 Ill. 348, 353-54,

“It was for the jury to determine the credibility of the various witnesses and to attach such weight to their testimony as they thought it was entitled to. The jury accepted the testimony of the People as being the correct version of what occurred. The jurors’ acceptance of the People’s theory leaves nothing for the court to determine except as to whether there is sufficient evidence, if believed to be true, to prove defendant’s guilt beyond a reasonable doubt.”

Accordingly, we must view the evidence in the light most favorable to the prosecution, and the evidence of guilt cannot be disregarded on review unless it is improbable, inconclusive or contrary to human experience. (See People v. Stevenson (1962), 25 Ill. 2d 361, 364-65; People v. Ellis (1978), 74 Ill. 2d 489, 496.) Also, in light of the legal principles mentioned above, we need not set forth a comprehensive abstract of the testimony, and our statement of the material evidence represents the testimony taken in the light most favorable to the prosecution.

On August 29, 1980, there was a backyard party, attended by about 40 young people, at 8856 South Union Street in Chicago. Around midnight, defendant Kevin Mitchell began to repeatedly make unusual gestures which involved crossing his arms over his chest with thumbs up, and then moving clenched fists to his forehead. Andre Long testified that some of the other young men at the party reacted to these gestures by talking among themselves. According to Long, he asked Mitchell to leave the party because he was afraid there was going to be a fight between Mitchell and some of the others at the party.

Mark Petties testified that he and Chappelle Crump escorted Mitchell to the front of the house. They were followed by 10 unidentified young men. Andre Long testified that these were the same gentlemen who began to talk among themselves when they saw Mitchell making his unusual gestures.

When these two groups got to the front of the house, several of the unidentified young men began to beat Mitchell. The beating was eventually stopped, and Mitchell, bloodied, drove off in a blue car. Two or three people left with Mitchell, and one of the other occupants was identified by Derrick Sims as defendant William Martin.

About 15 minutes later, Mitchell drove back to 8856 South Union, stopped, got out of his car, fired several shots at the house, and drove away. Nobody was injured during this incident. And although there were two or three passengers in Mitchell’s car, they could not be identified.

The guests at the party began to go home after the first shooting, and about 15 people were standing near the front of the house when, 20 minutes later, Mitchell approached the house driving a white car. The car stopped in front of the house, and Mitchell fired several shots out of the window with a .38-caliber handgun, while one of his passengers, Darryl Bell, fired a sawed-off .22-caliber rifle. Up to six shots were fired, and Ronald Yates, who was standing in front of the house, was killed by a .38-caliber bullet in the forehead.

Mark Petties, Carlos Tyree, Chappelle Crump, Andre Long, and Derrick Sims were in front of or near the front of the house at 8856 South Union during the second shooting incident. These witnesses testified that Mitchell and Bell fired at the house, and the witnesses said they ducked when the volley of gunfire began.

Vincent Bevley was identified as sitting behind Mitchell during the second shooting incident, and William Martin was identified as sitting on the passenger side of the backseat. A nearby police car responded to the gunfire, and Officer George Bryja testified that defendant Bevley threw the sawed-off rifle out the car window during the chase. Plus, after the defendants were arrested, a .38-caliber revolver was discovered under the rear seat near where Martin was sitting.

Based on this evidence, the jury found the defendants guilty of murdering Ronald Yates, and of attempting to murder Mark Petties, Carlos Tyree, Chappelle Crump, Andre Long, and Derrick Sims. The jury also found the defendants guilty of armed violence based on the attempted-murder findings.

The first issue on appeal is whether the evidence is sufficient to support finding that the shooters, Mitchell and Bell, intended to kill Petties, Tyree, Crump, Long and Sims.

Intent to kill is not necessary for a murder conviction, and it is sufficient to sustain such a charge if the defendant knew his acts “createfd] a strong probability of death or great bodily harm.” (111. Rev. Stat. 1979, ch. 38, par. 9 — 1(a)(2).) But such knowledge is not sufficient to support an attempted-murder conviction (see People v. Trinkle (1977), 68 Ill. 2d 198, 201-02), and “to convict for attempted murder nothing less than a criminal intent to kill must be shown.” People v. Harris (1978), 72 Ill. 2d 16, 27.

“The gist or essence of the crime of assault with intent to murder is a specific intent to take life and such intent must be proved as charged beyond a reasonable doubt. However, since intent is a state of mind, and, if not admitted, can be shown only by surrounding circumstances, it has come to be recognized that an intent to take life may be inferred from the character of the assault, the use of a deadly weapon and other circumstances.” People v. Coolidge (1963), 26 Ill. 2d 533, 536; accord, People v. Koshiol (1970), 45 Ill. 2d 573, 578; People v. Wilson (1930), 342 Ill. 358, 366; see also LaFave & Scott, Criminal Law sec. 28, at 203 (1972); 111. Ann. Stat., ch. 38, par. 4 — 3, Committee Comments, at 256 (Smith-Hurd 1972).

The courts have sometimes stated that there is a “presumption” of intent to kill “[w]here one voluntarily and willfully does an act, the natural tendency of which is to destroy another’s life.” (People v. Shields (1955), 6 Ill. 2d 200, 206; see also People v. Marrow (1949), 403 Ill. 69, 74.) But, “If this is taken as a rule of substantive law, it is apparent that it would in effect destroy the concept of intention and replace it entirely with negligence. This is because the defendant would be held to have intended whatever a reasonable man would have foreseen as probable.” LaFave & Scott, Criminal Law sec. 28, at 203 (1972).

Properly understood, however, this so-called “presumption” merely means it may be permissible, depending upon the circumstances of the particular case, for a trier of fact to infer intent to kill. (LaFave & Scott, Criminal Law sec. 28, at 203 (1972); see also People v. Shields (1955), 6 Ill. 2d 200, 205.) As the court explained in Crosby v. People (1891), 137 Ill. 325, 337, “The intent with which the act was done is a question of fact, either to be shown by the declaration of the party, or to be inferred from the character, manner and circumstances of the assault.” For example, in People v. Gonzales (1968), 40 Ill. 2d 233, the defendant drove up in a car and fired a shotgun at a group of men standing in front of a tavern. Affirming defendant’s conviction for attempted murder, the supreme court stated:

“It is not necessary to show that he formed an intent to kill any particular person since there can be no question but that the natural tendency of this act would be to destroy another’s life. In a situation such as this the criminal intent to murder may be implied from the character of the act.” People v. Gonzales (1968), 40 Ill. 2d 233, 241-42.

The evidence in the present case, taken with credibility questions resolved in favor of the State, shows that Kevin Mitchell and Darryl Bell fired up to six shots at a house while Petties, Tyree, Crump, Long, Sims and the decedent stood in front of or near the front of the building. Mitchell and Bell fired deadly weapons from close range, and the natural tendency of these acts was to kill those who, like Ronald Yates, stood in the target area. The circumstances of the attack made by Mitchell and Bell persuades us the evidence was sufficient for a rational trier of fact to find, beyond a reasonable doubt, that Mitchell and Bell acted with intent to kill Petties, Tyree, Crump, Long and Sims.

Next, Bevley and Martin argue that the evidence is not sufficient to support finding them accountable, as accomplices, for the actions of their codefendants.

Among other specified situations, a person is legally accountable for the conduct of another if, with intent to promote or facilitate the commission of an offense, he agrees to aid in the commission of the offense. (See Ill. Rev. Stat. 1979, ch. 38, par. 5 — 2(c).) Although “mere presence at the commission of an alleged offense, without any affirmative act of assisting, abetting or encouraging the commission of the act, is not sufficient to make one a principal in the commission of the offense” (People v. Shields (1955), 6 Ill. 2d 200, 207), “[t]he encouragement may come long before the time the crime was committed ***. It is sufficient encouragement that the accomplice is standing by at the scene of the crime ready to give some aid if needed, although in such a case it is necessary that the principal actually be aware of the accomplice’s intentions.” LaFave & Scott, Criminal Law sec. 64, at 503 (1972); accord, People v. Rudecki (1923), 309 Ill. 125,130-31.

As with any other fact-to-be-proved, circumstantial evidence may establish that there was an agreement or understanding, between principal and accomplice, that the accomplice would stand by at the scene of a crime and assist if necessary. “Circumstances may show that there is in such case a common design to which all assented, and where that is so it is not necessary that each one shall take an active part in the commission of the crime.” People v. Powers (1920), 293 Ill. 600, 603.

“While it is true that mere presence or negative acquiescence is not enough to constitute a person a principal, one may aid and abet without actively participating in the overt act and if the proof shows that a person was present at the commission of the crime without disapproving or opposing it, it is competent for the trier of fact to consider this conduct in connection with other circumstances and thereby reach a conclusion that such person assented to the commission of the crime, lent to it his countenance and approval and was thereby aiding and abetting the crime.” People v. Cole (1964), 30 Ill. 2d 375, 379; see also People v. Cione (1920), 293 Ill. 321, 331.

In the present case, Mitchell and Bell, the triggermen, went to 8856 South Union armed with deadly weapons, and they were clearly seeking revenge for what had happened to Mitchell earlier in the evening. Bevley and Martin argue that the evidence fails to show that they were anything more than innocent spectators to the criminal conduct of their fellow automobile occupants. But common sense tells us that Mitchell and Bell would not have brought Bevley and Martin along on their deadly mission unless these self-professed “spectators” had agreed that they would assist the triggermen if necessary.

It isn’t likely that Mitchell and Bell decided to bring “innocent spectators” with them to insure that there would be eyewitnesses to their crimes. Moreover, the evidence, taken in the light most favorable to the prosecution, shows that Bevley and Martin did assist when it became necessary, by disposing of the guns while the police pursued them.

The circumstances of this case are sufficient for a rational trier of fact to conclude, beyond a reasonable doubt, that:

(1) when Bevley and Martin accompanied Mitchell and Bell in the white car, they agreed that, if necessary, they would aid their codefendants commit acts which “create[d] a strong probability of death or great bodily harm” (111. Rev. Stat. 1979, ch. 38, par. 9 — 1(a)(2));

(2) these “spectators” intended to facilitate commission of the acts which resulted in the death of Ronald Yates; and

(3) both Bevley and Martin knew there was a strong probability that these acts would result in death or great bodily harm. Consequently, there was sufficient evidence to find them accountable for the murder of Ronald Yates.

A similar question is whether the evidence was sufficient to hold Bevley and Martin accountable for attempted murder.

An accomplice can be held accountable for murder even in the absence of intent to kill (see LaFave & Scott, Criminal Law sec. 64, at 507 (1972); 111. Rev. Stat. 1979, ch. 38, pars. 9 — 1(a), 5 — 2(c)), but, as we noted earlier, principals (such as Mitchell and Bell) are not guilty of attempted murder unless they acted with intent to kill.

We agree that the evidence in the present case is not sufficient to justify concluding that Bevley and Martin intended for Mitchell and Bell to kill Pettie, Tyree, Crump, Long and Sims. In many jurisdictions this would absolve them from legal liability as accomplices for attempted murder, because “[t]he prevailing view is that the accomplice must also have the mental state required for the crime of which he is to be convicted on an accomplice theory.” (LaFave & Scott, Criminal Law sec. 64, at 506 (1972).) “[F]or example *** one may not be held as an accomplice to the crime of assault with intent to kill if that intent was not shared by the accomplice.” LaFave & Scott, Criminal Law sec. 64, at 507 (1972); see also 111. Ann. Stat., eh. 38, par. 5 — 2, Committee Comments, at 288 (Smith-Hurd 1972) (stating that liability under section 5 — 2(c) “requires proof of an ‘intent to promote or facilitate *** commission’ of the substantive offense”).

Nevertheless, in People v. Kessler (1974), 57 Ill. 2d 493, the supreme court construed section 5 — 2 as providing that an accomplice can be held accountable for attempted murder even in the absence of intent to kill. In that case, a defendant who aided and abetted the burglary of a tavern, by driving the getaway car, was held accountable for two attempted murders committed by the principals when they were unexpectedly discovered inside the tavern. The appellate court reversed the defendant’s attempted-murder convictions because there was no proof that he intended for his companions to kill the persons who unexpectedly discovered them during the burglary. People v. Kessler (1973), 11 Ill. App. 3d 321, 325-26.

The supreme court reversed the appellate court and affirmed Kessler’s attempted-murder convictions, holding that section 5 — 2 incorporated the “common design rule.” (57 Ill. 2d 493, 497-98.) Under the “common design rule,” “where defendants have a common design to do an unlawful act, then whatever act any one of them does in furtherance of the common design is the act of all and all are equally guilty of whatever crime is committed.” (People v. Armstrong (1969), 41 Ill. 2d 390, 399; accord, People v. Tate (1976), 63 Ill. 2d 105, 109-10.) Since Kessler was legally accountable for the crime of burglary, as an accomplice, the common design rule meant that he was also accountable for the attempted murders committed during the burglary by his cohorts. 57 Ill. 2d 493, 499.

In the present case, the jury was instructed to apply the principles of accountability set forth in section 5 — 2(c), and defendant Martin argues that his conviction cannot be affirmed based on the common law common design rule. However, in Kessler the supreme court read the common design rule into section 5 — 2 by holding that “the statute, as it reads, means that where one aids another in the planning or commission of an offense, he is legally accountable for the conduct of the person he aids; and that the word ‘conduct’ encompasses any criminal act done in furtherance of the planned and intended act.” (Emphasis added.) 57 Ill. 2d 493, 497.

Applying these legal principles to the facts of the present case, Bevley and Martin are accountable for the attempted murders committed by Mitchell and Bell because the evidence was sufficient to support finding that they all had a common design to perform the unlawful acts which resulted in the murder of Ronald Yates.

Another issue raised by Bevley and Martin is that the trial court erred in declining to answer a question from the jurors. During their deliberations, the jurors sent a note to the trial court asking, “Does any testimony place V. Bevley or W. Martin in the blue car at the time of the first shooting?” According to Bevley and Martin, the court committed reversible error by not informing the jury there was no testimony that Bevley and Martin accompanied Mitchell during the first shooting.

Trial courts in Illinois have discretion to permit or refuse a request from a jury that it be permitted to review or hear a transcript of trial testimony. (People v. Pierce (1974), 56 Ill. 2d 361, 364; People v. Queen (1974), 56 Ill. 2d 560, 565; People v. Autman (1974), 58 Ill. 2d 171, 176.) But the trial court does not have authority to answer a question from the jury which calls for the court to give a conclusion based on its evaluation of the evidence. People v. Williams (1975), 60 Ill. 2d 1, 13.

The line drawn by the supreme court in these cases gives trial courts discretion to permit a jury to hear a replay of certain testimony, but prohibits the court from usurping the jury’s function as trier of fact. Even assuming that the trial court could have answered the jury’s inquiry in the present case without the court abandoning its role as a neutral referee, we find that the court did not abuse its discretion.

In its discussion with counsel, the trial court acknowledged that there was no direct evidence identifying Bevley and Martin as occupants of the blue car during the first shooting incident. But the court also realized that there was substantial circümstantial evidence placing them in the car. The court therefore concluded that telling the jury there was no such “testimony” might amount to judicial over-steering, usurping the jury’s function as trier of fact. The court’s decision was within the range of reason, and it did not constitute an abuse of discretion.

The next issue concerns prosecutorial argument. According to the defendants, the prosecutors (a) violated an in limine order, (b) gave unsworn testimony during argument; (c) made improper rebuttal argument; (d) misstated the law of accountability; and (e) improperly belittled the prosecution’s burden of proof.

The prosecution had intended to present testimony that the unusual hand gestures made by Kevin Mitchell signified membership in a particular street gang — the Disciples. Through a motion in limine the defense sought to preclude any mention of the gestures themselves and of their significance. The court’s in limine order prohibited the prosecution from presenting evidence that the gestures signified affiliation with the Disciples, but the court permitted introduction of eyewitness testimony and demonstrations concerning the gestures themselves, as well as testimony concerning the reaction to the gestures from other partygoers.

Mitchell’s attorney argued that there was a substantial likelihood the jury would conclude, even without explanatory testimony, that the gestures signified membership in a street gang. Counsel therefore concluded that this would violate the in limine order prohibiting introduction of testimony that the gestures signified affiliation with the Disciples. The court emphatically replied, “No, No, No, that wouldn’t violate it, what they figure out isn’t going to violate any ruling.”

Then, during rebuttal argument, a prosecutor made the following comments:

“[Y]ou heard that Kevin [Mitchell] was making these hand motions. Don’t you think those meant something?
* * *
Don’t you think that meant something?
* * *
The people that these were made to got angry he was making motions *** and a fight resulted therefrom. This is Cub Scouts [indicating], this is Boy Scouts [indicating]. Don’t you think this nonsense means something too. [Indicating.] *** Don’t you think it indicates why somebody was kicked out of the party? They were telling the people who they were.”

The defendants argue that these comments violated the court’s in limine order, and constituted unsworn testimony, as well as improper rebuttal. However,

“[I]n the absence of express prohibition every fact which, in no illegal manner, comes to the knowledge of the jury during the progress of a trial, and which may reasonably influence their judgment is a proper subject of comment in argument.” (Emphasis added.) People v. Williams (1968), 40 Ill. 2d 522, 529-30; see also People v. Wright (1974), 56 Ill. 2d 523, 531 (“The initial test which must always be considered is whether the argument complained of is based upon relevant evidence in the record or legitimate inferences deducible therefrom”).

The key question in the present case is whether the trial court’s in limine order expressly prohibited the prosecution from arguing that the gestures made by Mitchell signified gang membership. As the supreme court noted in Reidelberger v. Highland Body Shop, Inc. (1981), 83 Ill. 2d 545, 550, “|l]t is imperative that the in limine order be clear and that all parties concerned have an accurate understanding of its limitations.”

The in limine order in the present case prohibited the prosecution from adducing evidence that Mitchell’s gestures identified him as a member of a particular gang — the Disciples. But the gestures themselves were in evidence, and the trial court contemplated that the jurors could, and almost certainly would, infer that the gestures signified membership in a street gang. The court’s order may not have been as precise as it could have been, but the gestures themselves, as well as the reactions they caused, were properly in evidence, and in light of the court’s statement that “what they figure out isn’t going to violate any ruling,” we cannot conclude that the prosecution violated an express prohibition by presenting argument implying the gang-related significance of the gestures.

Furthermore, these comments constituted reasonable inferences based on the evidence, and they did not amount to unsworn testimony. A similar comment — that this case was reminiscent of a 1920’s gangland slaying — also constituted a reasonable inference based on the evidence.

We agree, after examining the record, that these comments constituted improper rebuttal argument because they were new arguments rather than responses to defense arguments (see People v. Bundy (1920), 295 Ill. 322, 330-31), but we do not think the jury could possibly have failed to realize the significance of Mitchell’s gestures. The error is not reversible because there is no reasonable likelihood that it could have affected the results of the trial. See People v. Kirkwood (1959), 17 Ill. 2d 23, 33; People v. Allen (1959), 17 Ill. 2d 55, 63.

Defendants Bell, Bevley, and Martin argue that it was improper for the prosecutor to state, in the comments quoted above, “They were telling the people who they were.” However, there was no objection made to this comment during trial, and the right to assert that this comment was improper has been waived. See People v. Carlson (1980), 79 Ill. 2d 564, 577; People v. Dukett (1974), 56 Ill. 2d 432, 442; People v. McCurrie (1929), 337 Ill. 290, 296.

Bevley and Martin also argue the prosecutor committed reversible error by stating, over objection, that “mere presence at the scene is enough as the instructions will tell you if you’ve got the intent to aid or abet or you even attempt to aid or abet.”

As we noted above, presence at the scene of a crime, plus intent to aid if needed, is sufficient to call for accomplice liability if the intent to aid was communicated to the principal. The prosecutor’s comment was not as precisely phrased as it should have been, but (1) the jury was properly instructed, and (2) the comment itself expressly referred the jurors to the court’s instructions of law. Also, the error was not emphasized or repeated, and we are convinced that there is no reasonable likelihood that the misstatement could have affected the results of the trial.

The last contention concerning prosecution argument concerns a comment in which the prosecutor told the jurors that the burden of proving guilt beyond a reasonable doubt is “the same burden, and the same presumption [of innocence] that put about twelve thousand people in the penitentiary, the same one.”

Similar comments have been held improper on the grounds that they “had the effect of lessening the importance of the State’s burden of proof by implying that reasonable doubt was merely a pro-forma or minor detail.” People v. Martinez (1979), 76 Ill. App. 3d 280, 285; accord, People v. Frazier (1982), 107 Ill. App. 3d 1096, 1102.

Assuming that the comment in question was improper, the error was not reversible because the jury was properly instructed on the prosecution’s burden of proof, and the comment did not negate these instructions or shift the burden of proof to the defendants. (Compare People v. Weinstein (1966), 35 Ill. 2d 467, 469-70.) It must be presumed that the jurors followed the court’s instructions, and we conclude there is no reasonable likelihood that the results of the trial would have differed in the absence of the comment in question.

Finally, the defendants argue the trial court erred by imposing concurrent sentences for each defendant on the five attempted-murder counts, and the five counts of armed violence based on attempted murder.

The supreme court has held that, because the legislature did not clearly manifest a contrary intent, the armed-violence statute (111. Rev. Stat. 1979, ch. 38, pars. 33A — 1 through 33A — 3) must be construed as providing “that multiple convictions for both armed violence and the underlying felony cannot stand where a single physical act is the basis for both charges.” People v. Donaldson (1982), 91 Ill. 2d 164, 170; accord, People v. Simmons (1982), 93 Ill. 2d 94, 97.

The evidence in the present case shows that up to six shots were fired during the second shooting. One shot was the basis for convicting each defendant of murder, and the other shots provided the basis for finding each defendant guilty of five counts of attempted murder and five counts of armed violence based on the underlying felony of attempted murder. But each armed-violence conviction was based on the same discrete physical act as the corresponding attempted-murder conviction. Therefore, under Donaldson, the underlying attempted-murder convictions should have been vacated.

We note the prosecution argues on appeal that the shots fired by Mitchell during the initial shooting incident constitute separate offenses justifying additional convictions for each defendant. However, the case was not tried on this theory, and fundamental requirements of due process mandate that the defendants’ convictions cannot be affirmed based on crimes for which they were not tried.

Based on all the foregoing reasons, we vacate the defendants’ convictions for attempted murder, and we affirm the rest of the trial court’s judgments.

Affirmed in part; vacated in part.

WILSON, P.J., and MEJDA, J., concur.