author: JUSTICE PERLIN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EFREM CLARK et al., Defendants-Appellants.
    First District (2nd Division)
    Nos. 82—1476, 82—1492, 82—1506 cons.
    Opinion filed May 8, 1984.

      Thomas F. Geraghty, of Northwestern University Legal Clinic, of Chicago, for appellant Johnnie Brown.
    Steven Clark and Martin Carlson, both of State Appellate Defender’s Office, of Chicago, for appellant Efrem Clark.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Thomas Gearen, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE PERLIN

delivered the opinion of the court:

Defendants Efrem Clark (Clark) and Johnnie Brown (Brown) were indicted jointly on two counts of rape, two counts of armed robbery, two counts of aggravated kidnaping and two counts of armed violence. Prior to trial, the court approved the State’s motion to nolle prosequi the armed violence counts. On May 11, 1982, following a consolidated jury trial in the circuit court of Cook County, defendants were found guilty of rape (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 1), armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 2), and aggravated kidnaping (Ill. Rev. Stat. 1979, ch. 38, par. 10 — 2). On May 27, 1982, Clark was sentenced to four concurrent terms of 20 years on two counts of rape and two counts of armed robbery, and concurrently to two terms of 15 years on two counts of aggravated kidnaping. These sentences were to run consecutive to two sentences of 10 and 15 years respectively previously imposed for two prior armed robbery offenses. Brown was sentenced to six concurrent terms of 10 years on two counts of rape, two counts of armed robbery and two counts of aggravated kidnaping. These sentences were to run consecutive to a sentence of six years previously imposed upon him for a prior armed robbery offense.

Both defendants appeal, presenting the following issues for review: (1) whether defendants’ fifth amendment right against double jeopardy was violated; (2) whether the trial court erred in excluding expert testimony regarding the reliability of eyewitness identification; (3) whether defendants were denied a fair trial when evidence of another crime was introduced against them; and (4) whether the trial court erred in imposing consecutive sentences. Clark additionally raises the issue of whether the trial court erred in imposing upon him sentences for six separate offenses. Brown also presents as additional issues for review: (1) whether defendant was proven guilty beyond a reasonable doubt; (2) whether defendant’s lineup identification was impermissibly suggestive; and (3) whether defendant was denied a fair trial because evidence favorable to him was destroyed.

For the reasons hereinafter set forth, we affirm in part and we vacate three of the sentences imposed by the trial court.

This case was originally assigned to circuit court Judge Genesen. On January 18, 1982, at pretrial proceedings before Judge Genesen, counsel for both defendants filed a motion in limine to exclude the testimony of a State’s witness, Mr. Major Barrow, because his testimony would relate to a separate offense of armed robbery against Barrow and would be prejudicial to defendants in the case sub judice. The State argued that Barrow’s testimony was relevant to establish defendants’ identities, and stated to Judge Genesen, “*** we would readily concede we are not going into all the minute details of the Major Barrow’s case. ***” The court found Barrow’s testimony to be relevant to the question of the identity of defendants and denied their motion.

The State then filed an oral motion in limine to exclude the testimony of Dr. Reid Hastie, a psychologist whom the defense intended to call as an expert on eyewitness identification. The court ruled that factors bearing on eyewitness identification are matters of “common knowledge,” and granted the State’s motion to exclude Dr. Hastie’s testimony.

Defendant Brown filed a motion to suppress his lineup identification, alleging that the clothing (“grey or silvery jacket”) worn by him in the lineup was “distinctive” and impermissibly suggestive. On February 1, 1982, following an evidentiary hearing, Judge Genesen found there was not “such a suggestive identification procedure as to cause the identification to be tainted,” and denied defendant’s motion.

On February 3, 1982, at trial before Judge Genesen and a jury, the State’s first witness, Mr. Major Barrow, testified: on February 21, 1980, at approximately 11:15 p.m., he was struck on the head from behind as he was about to open his car door; he turned around and saw two men holding guns; one man hit Barrow with his gun and said, “Let’s kill him”; the other man took money out of Barrow’s pocket while the first man said, “Where’s his wallet, where’s his wallet?” In court, Barrow identified defendants as his two assailants.

At this point, Judge Genesen called the attorneys into chambers where he stated that Barrow’s testimony was exceeding the scope of the court’s in limine ruling by eliciting details of the offense allegedly committed by defendants against Barrow. The State argued that its elicitation of the details of the offense against Barrow was not “intentional” or “purposeful.” Judge Genesen, however, found the State had “deliberately elicited prejudicial testimony.” The judge stated, “if the defense wants a mistrial, I am going to grant it.” Both defendants moved for a mistrial. Judge Genesen declared a mistrial and recused himself.

The case was reassigned to circuit court Judge Marovich. On February 17, 1982, at pretrial proceedings before Judge Marovich, defendants filed a motion to dismiss the indictment on grounds of double jeopardy. The court found the prosecutor’s conduct was not “specifically designed to provoke mistrial,” and denied defendants’ motion to dismiss.

Brown’s counsel renewed his motion to suppress Brown’s lineup identification and both defendants renewed their motion in limine to bar the testimony of Barrow. The court denied both of these motions and admonished the State not to elicit details of the offense against Barrow. Defendants also renewed their request to call Dr. Hastie as a witness. The court found there was “no need for an expert to give an opinion” on the inherent dangers in eyewitness testimony and denied defendants’ motion.

On May 6, 1982, at trial before Judge Marovich, Barrow again testified to the following: on February 21, 1980, at approximately 11:15 p.m., he was struck on the head from behind as he was about to enter his car near 69th and Bishop, in Chicago. He turned around and saw a man with a gun standing directly in front of him. A “taller” man holding a gun was standing off to the side. “The lighting conditions were good because [his] car was parked directly up under the light.” The “shorter” man reached into Barrow’s pocket and took his money and wallet. The taller man reached into Barrow’s car and took his car keys. The shorter man pushed Barrow into the bushes. Both men then drove off in Barrow’s car. On the night of the robbery, Barrow told police the shorter man was about 17 to 22 years old and his height was “five three to five seven to five 'nine.” Barrow did not give to the police any age or height description with respect to the taller man. In court, Barrow identified defendant Clark as the taller assailant, and defendant Brown as the shorter assailant. Barrow described the car he was driving as a 1972 green Dodge Polara.

M.G., one of the complainants, testified: on February 22, 1980, shortly after midnight, she drove her sister-in-law, complainant D.G., to D.G.’s home at 115th and Bishop, in Chicago; when they pulled up in front of the house, their car was bumped from the rear by another car; two men wearing ski masks and holding guns jumped out of the car; one man approached D.G., placed a gun to her head, and told her to get into the back seat of M.G.’s car; the other man approached M.G. and told her to get into the back seat of the same car; the shorter man sat in the front passenger seat, and the taller man got into the driver’s seat of M.G.’s car; they drove off and defendants repeatedly told M.G. and D.G. to keep their eyes closed and threatened to kill them. During the drive, Brown, who had removed his ski mask, grabbed M.G.’s purse; M.G. was able to see Brown’s face because she was “peeking” with her eyes partially open; they parked in an alley illuminated by pole lights; D.G. was told to get into the front seat; Clark got into the back seat and ordered M.G. to remove her clothes; M.G. was “peeping” and was able to see Clark’s face “just for a second”; Clark “fumbled” with M.G.’s breasts, and the two men then switched places; Brown took $5, two gold chains and a wedding ring from M.G. M.G. was ordered to remove the rest of her clothes and Brown pushed her down in the seat and raped her; M.G. opened her eyes and observed Clark, who had his ski mask pulled up, in the front seat; she was able to observe his face for three to four minutes. Two gold chains taken from Brown after his arrest were identified by M.G. as her property. A key chain with M.G.’s car key, found on Clark after his arrest, was also identified by M.G. as belonging to her.

Complainant D.G. testified to the following: defendant Brown, while in the front seat of M.G.’s car, took D.G.'s watch and ordered her to remove her clothes. Defendant Clark then moved to the front seat of the car and ordered D.G. to remove the rest of her clothes. Clark pulled up his ski mask and D.G. was able to view his face before he raped her. D.G. and M.G. were told to get dressed. Defendants again threatened to kill D.G. and M.G. D.G. was ordered out of the car and told to walk to a nearby fence. Defendants kept M.G. in the car for a few more minutes and then released her. Defendants drove off in the M.G. car. D.G. and M.G. ran to a nearby liquor store and called D.G.’s mother-in-law. D.G. and M.G. were taken by the police to the police station where they described one assailant as approximately five foot nine and the other assailant as about six feet tall, and stated that one man was “dark” and the other was “light.”

At a lineup held on February 23, 1980, D.G. identified Brown, but was unable by sight to identify Clark. After the men in the lineup spoke, however, she identified Clark by his voice.

Patrolman Ronald Bartman, of the Chicago police department, testified: on February 22, 1980, at approximately 12:15 a.m., he responded to a call at 11458 South Bishop. A 1972 green Dodge was parked on the street with the engine running. Bartman had this car taken to the 22nd district police station.

Officer Beale, of the Chicago police department, testified: on February 23, 1980, at approximately 2:40 a.m., he responded to a call of a battery in progress at 6900 South Yale, in Chicago. Beale saw “three to four male blacks fighting on the street.” Clark, one of the men, ran from the fight and Officer Beale chased and arrested him. Officer Beale searched Clark and found several key chains.

Detective Bresingham, a Chicago police officer, testified: on February 23, 1980, at approximately 6:30 a.m., while investigating the instant case at the 7th district police station, he observed two yellow metal chains around Brown’s neck. He requested Brown to remove these chains and “inventoried” the chains. These were the chains later identified as belonging to M.G.

Kathy Moorman, a micro analyst for the Chicago police crime laboratory, testified: in December 1981 she performed tests on specimens contained in Vitullo Evidence Kits which had been prepared on February 22, 1980, when D.G. and M.G. were brought by the police to the Little Company of Mary Hospital. Moorman found sperm present on slides which contained vaginal swabs taken from D.G. and M.G. She found semen present on M.G.’s underwear but nothing “significant” on D.G.’s underwear. Moorman tested blood and saliva samples from the complainants and from the defendants in an effort to identify the alleged rapists. She concluded from these tests that Brown did not secrete his “blood type” into his body fluids. He was characterized as a “non-secretor.” Moorman also performed blood typing tests on the semen stains and obtained four varying results. Moorman stated that the tests were inconclusive because the stains had been prepared on February 22, 1980, almost two years prior to her tests, and the stains had deteriorated due to this passage of time.

Defendant Brown presented an alibi defense through testimony of Marie Miller, his “girlfriend”; April Brown, his sister; and Gregory Neuvel, his sister’s “boyfriend.” All three testified that they spent the night of February 21,1980, at the home of Brown’s mother.

Brown’s mother testified that the gold chains removed from Brown’s neck after his arrest belonged to her.

Jimmy Brown, a friend of defendant Clark, testified: during February 1980 he never saw Clark with defendant Johnnie Brown. On February 23, 1980, he walked with Clark to the vicinity of 69th and Yale and observed a fight between defendant Brown and a second man. When the police arrived at the scene of the fight, however, “everyone ran.”

Louis Vitullo, former chief microanalyst for the Chicago police department, testified: on February 22, 1980, Vitullo Evidence Kits were prepared at the Little Company of Mary Hospital. These evidence kits, however, were not tested by Vitullo until February 1982. He performed a semen typing test on M.G.’s underwear and found the “possible presence of H-substance” which could not be left by a non-secretor. Vitullo stated that due to the age of the stains, however, the tests were inconclusive.

At trial, defendants were found guilty of rape, armed robbery and aggravated kidnaping.

Defendants filed timely notices of appeal.

I

Defendants contend that double jeopardy bars their reprosecution because the prosecutor “intentionally” provoked defendants’ motion for a mistrial in the first trial before Judge Genesen.

A defendant may invoke the bar of double jeopardy where “the conduct giving rise to [a] successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial” (Oregon v. Kennedy (1982), 456 U.S. 667, 679, 72 L. Ed. 2d 416, 427, 102 S. Ct. 2083, 2091). This standard has been applied by this court. People v. Franklin (1983), 119 Ill. App. 3d 899, 457 N.E.2d 169.

In the instant case, however, the trial judge found that the prosecutor did not intend to provoke a mistrial. The prosecutor sought to establish Barrow’s ability to identify defendants, and in so doing, found it necessary to elicit certain details of the offense against Barrow. We cannot dispute the trial court’s finding and, in our opinion, the retrial of defendants is not barred by double jeopardy.

II

Defendants contend that the trial court erred when it excluded the proffered “expert testimony” of Dr. Hastie with regard to the reliability of “eyewitness identification.” The trial court found that “most jurors” are in fact aware of the dangers inherent in such identification.

“*** [T]he trustworthiness of eyewitness observations is not generally beyond the common knowledge and experience of the average juror and is, therefore, not a proper subject for expert testimony.” People v. Dixon (1980), 87 Ill. App. 3d 814, 818, 410 N.E.2d 252, 256.

As stated in People v. Brown (1981), 100 Ill. App. 3d 57, 72, 426 N.E.2d 575, 584, “The courts have uniformly upheld a trial court’s refusal to allow expert testimony on the subject of eyewitness identification. [Citations.] These courts have generally held that factors such as stress, opportunity to observe, distortion of memory, and problems of interracial identification, are within the realm of common experience and can be evaluated by the jury without expert assistance.”

In the instant case, defense counsel, in his offer of proof, stated that the psychologist, Dr. Hastie, would testify that: “(1) stress does not necessarily help one’s ability to see and remember; (2) a witness’ confidence on the witness stand is not necessarily indicative of his reliability; (3) complicated situations adversely affect one’s ability to remember; (4) one tends to focus on a weapon which is pointed at him, rather than on the person holding it; and (5) a person’s initial identification of another person can be reinforced by immaterial factors.”

These five factors that Dr. Hastie purportedly intended to emphasize do not differ substantially from the “usual problems of identification which historically have been within the province of the jury which has the benefit of cross-examination to point out various inconsistencies and to assess the opportunity of the witness to accurately observe.” People v. Brown (1981), 100 Ill. App. 3d 57, 72, 426 N.E.2d 575, 585.

In our opinion, the trial court did not err in excluding “expert testimony” on this matter.

III

Defendants contend that they were denied a fair trial because the'trial court “erroneously” denied their motion in limine to exclude Barrow’s testimony and admitted evidence of the armed robbery offense against him. The State argues defendants have waived this issue by cross-examining the witness (Barrow) regarding the “other offense.” Assuming arguendo, that defendants have not waived this issue, the State further argues that it was proper for the trial court to admit evidence of the Barrow incident in order to prove the identity of the assailants in the instant case.

Evidence of crimes other than the one for which the accused is being tried is generally inadmissible. However, there are exceptions. Evidence which tends to prove a fact in issue and evidence which goes to show motive, intent, identity, absence of mistake or modus operandi is admissible even though it may show the commission of a separate offense (People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489). The problem of determining the admissibility of other crimes is essentially one of balancing. “Even where it has substantial relevance for a permitted purpose, evidence of another crime should not be admitted if its probative value is outweighed by its prejudicial effect. [Citations.] Moreover, the actual need for the evidence must be considered in light of other evidence available to the prosecution.” People v. Triplett (1981), 99 Ill. App. 3d 1077, 1082, 425 N.E.2d 1236, 1240.

In the instant case the judge permitted Barrow’s testimony in order to establish defendants’ identities. Barrow’s testimony was relevant to place defendants in proximity to the time and place of the crimes here charged. Barrow was the only State’s witness, other than the complainants, who could identify defendants. Barrow’s description of defendants and the lighting conditions at the time of the offense were necessary to establish Barrow’s opportunity for identification. In our opinion, the probative value of Barrow’s testimony was not outweighed by the prejudicial effect of such testimony. The trial court’s action was not error.

IV

Defendants contend that the trial court erred in imposing consecutive sentences for two offenses “committed as a part of a single course of conduct.” The trial court found that the crime against Barrow was separate and distinct from the crimes against the complainants in the instant case. Moreover, the court felt justified in imposing consecutive sentences because it feared that the public needed protection from further criminal conduct by the defendants.

Section 5 — 8—4 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—4) provides:

“Sec. 5 — 8—4. Concurrent and Consecutive Terms of Imprisonment. (a) When multiple sentences of imprisonment are imposed on a defendant at the same time, or when a term of imprisonment is imposed on a defendant who is already subject to sentence in this State or in another State, or for a sentence imposed by any district court of the United States, the sentences shall run concurrently or consecutively as determined by the court. The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury, in which event the court may enter sentences to run consecutively. Sentences shall run concurrently unless otherwise specified by the court.
(b) The court shall not impose a consecutive sentence unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.” (Emphasis added.)

“A trial court may *** impose consecutive prison sentences upon a defendant where, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such is necessary to protect the public from further criminal conduct by the defendant and where the offenses were not committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective.” People v. Craig (1977), 47 Ill. App. 3d 242, 253-54, 361 N.E.2d 736, 745.

We believe that defendants’ offense against Barrow was a distinct and separate offense from the crimes in the instant case. The armed robbery of Barrow was a completed offense when the crimes against D.G. and M.G. were committed. There was clearly a change in the nature of the criminal objective between the armed robbery of Barrow and the offenses committed upon complainants. We find the trial court did not err in imposing consecutive sentences.

V

Defendant Clark additionally contends that the trial court erred in imposing upon him a separate sentence on each of the six counts charged in the indictment (two counts of rape, two counts of armed robbery and two counts of aggravated kidnaping) because the jury signed and returned only three verdict forms, finding defendant Clark “guilty of the offense of rape,” “guilty of the offense of armed robbery,” and “guilty of the offense of aggravated kidnapping.”

The record indicates the jury was given the following six verdict forms as to defendant Clark:

(1) “We, the Jury, find the Defendant, Efrem Clark, Guilty of the offense of Rape.”
(2) “We, the Jury, find the Defendant, Efrem Clark, Not Guilty of the offense of Rape.”
(3) “We, the Jury, find the Defendant, Efrem Clark, Guilty of the offense of Armed Robbery.”
(4) “We, the Jury, find the Defendant, Efrem Clark, Not Guilty of the offense of Armed Robbery.”
(5) “We, the Jury, find the Defendant, Efrem Clark, Guilty of the offense of Aggravated Kidnapping.”
(6) “We, the Jury, find the Defendant, Efrem Clark, Not Guilty of the offense of Aggravated Kidnapping.”

The jury was not given verdict forms for six separate offenses.

“Sentence cannot be imposed for offenses which did not result in a judgment or conviction by the jury.” (People v. Baes (1981), 94 Ill. App. 3d 741, 746, 419 N.E.2d 47, 51.) In the instant case, although defendant was charged with six separate offenses, the jury returned only the three signed “Guilty” verdict forms supplied to them.

Since the jury convicted defendant of only three offenses, sentences cannot be imposed for six offenses. We must, therefore, vacate the sentences imposed for three of the counts (one count of rape, one count of armed robbery and one count of aggravated kidnaping).

Defendant argues, in the event this court vacates the sentences imposed on the three charges not supported by the jury’s verdicts, that we must remand the cause for resentencing on the three convictions supported by the jury’s verdicts. He contends that such action is necessary to guard against the possibility that the three improper sentences influenced the trial court’s three valid sentences.

In determining, when a reviewing court has vacated some, but not all convictions, whether a remand for resentencing is required, it is necessary to determine from the record whether the trial court may have been influenced by the convictions subsequently vacated in its sentencing on the affirmed convictions (People v. Miles (1981), 96 Ill. App. 3d 721, 422 N.E.2d 5; People v. Alejos (1983), 97 Ill. 2d 502, 455 N.E.2d 48). If the record indicates that the trial court was not so influenced, remand for resentencing is not required.

Our review of this record indicates that the trial judge was not influenced by the three vacated sentences. He based his sentencing on: the heinous nature of the crime; defendant’s criminal record which included two prior separate Class X felony convictions by a 21-year-old; a probation unsatisfactorily terminated by defendant; defendant’s lack of rehabilitative potential; and the absence of mitigating factors.

Moreover, the sentences imposed for each of the jury’s convictions fall within the permissible range of sentences allowed by statute (People v. Jones (1980), 89 Ill. App. 3d 1030, 412 N.E.2d 683). We find no need to remand this cause for resentencing.

VI

Defendant Brown raises three additional issues for review. First, defendant contends he was not proven guilty beyond a reasonable doubt. Defendant argues that the State’s witnesses “did not have a good opportunity to view their assailants,” in that Barrow was hit over the head before he first saw defendants, and the complainants were confronted by assailants who wore ski masks. Defendant further maintains that alibi witnesses placed him at his mother’s home at the time of the offenses.

“In a jury trial the credibility of the witnesses and the weight to be given their testimony are matters within the province of the jury, and a reviewing court will not substitute its judgment for that of the trier of fact unless the evidence is so unsatisfactory, improbable or implausible as to justify a reasonable doubt as to defendant’s guilt.” People v. Goodman (1982), 109 Ill. App. 3d 203, 217, 440 N.E.2d 345, 354.

“ ‘[Wjhere the identification of the accused is at issue, the testimony of one witness is sufficient to convict, even though such testimony is contradicted by the accused, provided the witness is credible and he viewed the accused under such circumstances as would permit a positive identification to be made.’ ” People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313, 1320; People v. Johnson (1981), 97 Ill. App. 3d 1055, 1070, 423 N.E.2d 1206, 1217.

In the instant case, the complainants and Barrow testified to the sufficiency of the lighting conditions where the attacks occurred; during the rape, defendant removed his ski mask giving the complainants an opportunity to view him; and defendant was identified in a lineup held one day after the commission of the crimes. Our review of the record indicates that the victims’ testimony with regard to their assailants’ identification was clear and consistent. We believe the evidence fully supported the jury’s verdict.

VII

Defendant Brown contends that his lineup identification was impermissibly suggestive. Defendant alleges that he was identified in a five-member lineup while wearing “distinctive,” suggestive clothing (“grey or silver jacket”); the source of complainants’ in-court identification was the suggestive lineup; and evidence of this identification was therefore improperly admitted at trial.

“Pretrial identifications which are overly suggestive are not per se violative of a defendant’s confrontation and due process rights. Evidence of such identifications is admissible if, based on the totality of the circumstances, the identification possesses sufficient indicia of reliability. The relevant factors in evaluating the reliability of such identifications are: (1) the opportunity of the witness to view the defendant at the time of the crime; (2) the witness’ degree of attention to the details of the crime and the criminal; (3) the accuracy of the witness’ preidentification description of the criminal; (4) the level of certainty demonstrated by the witness in identifying the defendant as the culprit; and (5) the amount of time elapsed between the commission of the crime and the identification.” People v. Walton (1982), 107 Ill. App. 3d 698, 701, 437 N.E.2d 1273, 1275.

In this instance, the circumstances surrounding the victims’ pretrial identification of defendant establishes sufficient indicia of reliability. The complainants had an opportunity to view defendant without his ski mask; their attention was clearly focused on defendants; and both complainants identified Brown in the lineup held one day after the commission of the instant crimes.

The clothing which defendant claims is “distinctive” and “suggestive” is a “grey or silver jacket.” We do not consider this attire to be impermissibly suggestive. We find no substantial likelihood of misidentification arising from the lineup, and hold, on the totality of the circumstances, the out-of-court identification to be reliable.

VIII

Defendant Brown contends finally that he was denied a fair trial because the State failed to preserve allegedly exculpatory evidence by its two-year delay in testing specimens contained in the Vitullo Evidence Kit. Defendant suggested that if such evidence were available he might have been found innocent. Defendant at no time prior to trial, however, requested access to this evidence.

The State argues that its failure to preserve the specimens was not intentional or indicative of bad faith.

The suppression by the prosecution, without regard to the prosecution’s good or bad faith, of evidence favorable to an accused, violates due process if the evidence is material to guilt and is requested by the defendant. (Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194.) “For there to have been a violation of the right to due process, it must be shown that the evidence was suppressed following a request for it by the defendant, that the evidence was favorable to the defendant, and that it was material.” People v. Nichols (1976), 63 Ill. 2d 443, 446, 349 N.E.2d 40, 42.

In People v. Utinans (1977), 55 Ill. App. 3d 306, 320, 370 N.E.2d 1080, 1090, the court held, “In addition to a showing of exculpatory quality the cases have required a demonstration of the existence of the evidence at the time of the trial or the intentional failure of the prosecution to preserve and produce the evidence.”

In the instant case, the record does not support a finding that defendant was denied a fair trial by the State’s inability to maintain the quality of the specimens. Kathy Moorman, a microanalyst for the police crime laboratory, testified that the State attempted to preserve the specimens in a “fluid sealed plastic tube” which was the customary method used by the crime laboratory. She stated that due to the large number of rape cases, this type of evidence is not “examined” until it is certain that the case is going to court.

In our opinion, there has been no showing that the State intentionally failed to preserve or to produce this evidence. We believe there was ample evidence to support the jury’s assessment of defendant’s guilt.

For the foregoing reasons, we affirm in part; we vacate the three sentences which did not result from “a judgment or conviction by the jury.”

Affirmed in part; vacated in part.

HARTMAN, P.J., and DOWNING, J., concur.

       Approximately one hour after the theft of Barrow’s car.

      At the lineup held on February 23, 1980, M.G. identified Brown as the shorter assailant, and Clark as the taller man.

      This same procedure was followed with respect to defendant Brown.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    THE DEPARTMENT OF REVENUE, Plaintiff-Appellant, v. HEARTLAND INVESTMENTS, INC., d/b/a The Poison Apple, Defendant (Peter S. Vermeil, Defendant-Appellee).
    Third District
    No. 3-83-0430
    Opinion filed May 16, 1984.
    Neil F. Hartigan, Attorney General, of Springfield (Kathryn Spalding and Edward M. Kay, Assistant Attorneys General, of counsel), for appellant.
    David B. Radley, of Baymiller, Christison & Radley, of Peoria, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

This suit was brought by the plaintiff, the Illinois Department of Revenue, for the collection of unpaid Retailer’s Occupation Taxes of the corporate defendant, Heartland Investments Inc., d/b/a The Poison Apple. The plaintiff also sought recovery from the defendant corporation’s president, defendant Peter S. Vermeil, under section lSVa of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 4521/2) which provides for the individual liability of a corporate officer in the event the corporation is unable to pay its tax liability. The circuit court of Peoria County entered a default judgment against the defendant corporation in the amount of $7,641.67 consisting of taxes, interest and penalties and upon cross motions for summary judgment, the court entered judgment in favor of the individual defendant.

The corporate defendant operated a discotheque and restaurant known as the Poison Apple in Peoria, Illinois. Vermeil was the president and chief operating officer of the corporation and, as such, was responsible for filing the returns and making the tax payments under the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 440 et seq.) for the defendant corporation.

During the period of May 1980 through August 1980, Vermeil, on behalf of the corporation, filed monthly returns under the act showing a total tax liability of $4,086.06. Payment of these taxes was not made when the returns were filed.

In December of 1980, the corporation executed a “Taxpayer Payment Proposal” wherein it agreed to pay $4,161.72 over a period of six months in order to pay off its previous tax liability plus interest and penalties. During 1981, the corporation paid a total of $1,364.21 toward this tax liability, being unable to pay the remaining portion due because its savings account had been depleted by bank setoffs.

The corporation continued to file its returns under the act through April of 1981. No returns were filed for the period of May 1981 through August 1981. Subsequently the plaintiff issued its notice of tax liability to the corporation for this period in the amount of $3,892.40 consisting of taxes, interest and penalties. The corporation neither protested this liability nor paid the amount claimed due by the plaintiff.

In September of 1981, the corporation advised the plaintiff that its business had been discontinued and on December 1, 1981, the corporation was dissolved. Vermeil has claimed that the discotheque had actually discontinued business on January 31,1981.

The plaintiff requests that we review the trial court’s granting of summary judgment in favor of the defendant, Vermeil, in the following respects: (1) whether Vermeil, as president of the defendant corporation, is liable for the corporation’s tax liabilities under the Retailers’ Occupation Tax Act for the period of May 1980 through August 1980 pursuant to the provisions set forth in section ISVa of that act and (2) whether a genuine issue of material fact exists as to the corporation’s tax liability under the act for the period of May 1981 through August 1981 precluding the entry of summary judgment in favor of Vermeil.

The Retailers’ Occupation Tax Act imposes a tax upon persons or business entities engaged in the retail sale of tangible personal property (Ill. Rev. Stat. 1979, ch. 120, par. 441). The act requires that a monthly statement be filed along with the payment of tax due for such month (Ill. Rev. Stat. 1979, ch. 120, par. 442).

In the event a corporate retailer is unable to meet its tax obligation under the act, section lSW thereof imposes individual liability for the payment of such tax obligation plus interest and penalties upon any officer or employee of the corporation who has control, supervision or the responsibility of filing returns and making payments of the corporate tax liability and who wilfully fails to file said returns or to make the tax payments due.

There is no dispute that Vermeil as president of the corporation was responsible for the filing of returns and the payment of taxes under the act and that the corporation is presently unable to pay the tax liability due the plaintiff. The question remains whether Vermeil wilfully failed to make such tax payments for 1980.

We believe that his conduct does constitute a wilful failure to pay the tax due in 1980 within the meaning of section ISW of the act. A voluntary, conscious and intentional failure satisfies the requirements of “wilfully fails” under section ISW of the act. Department of Revenue v. Joseph Bublick & Sons, Inc. (1977), 68 Ill. 2d 568, 369 N.E.2d 1279.

The court stated in Bublick that the reason underlying section 13 Va was obvious, the avoidance of á situation where the corporate officers would choose to pay its other corporate obligations before paying its liability to the State under the Retailers’ Occupation Tax Act. Responsibility has to be maintained for the stewardship of funds collected from the public for the State.

Contrary to Vermeil’s assertion that his nonpayment of the corporation’s tax liability was not wilful because under the “Taxpayer Payment Proposal” in 1981 the corporation’s funds were depleted by involuntary bank setoffs, the appropriate time period to assess his wilfulness is in 1980 when the tax payments were originally due. Vermeil admitted that in May of 1980 through August of 1980 the corporation’s creditors were paid by him voluntarily, thus making it difficult to meet the corporation’s tax obligation to the plaintiff. This conscious disregard of his duty to the State constitutes wilful behavior and subjects him to liability under section ISVa of the act.

As for the plaintiff’s claim of a corporate tax liability in 1981 and a resulting liability against Vermeil under section 131/2 of the act, we find that a genuine issue of material fact exists as to when the corporation actually discontinued business thus precluding summary judgment in favor of Vermeil. Even in a situation when cross motions for summary judgment have been filed, a reviewing court has the power to reverse a summary judgment order if the record indicates that a material issue of fact does exist. (Perlman v. Time, Inc. (1978), 64 Ill. App. 3d 190, 380 N.E.2d 1040.) Such is the case here.

Accordingly for the reasons set forth above, the judgment of the circuit court of Peoria County in favor of the individual defendant is reversed and the case is remanded with directions to enter judgment in favor of the plaintiff as to the individual defendant’s liability for the 1980 corporate tax liability under the act and for a hearing relative to the individual defendant’s liability for the 1981 taxes claimed due by the plaintiff.

Judgment reversed in part and remanded.

BARRY and SCOTT, JJ., concur.


author: PRESIDING JUSTICE MEJDA

text:
      In re MARRIAGE OF FAYE M. HOSTETLER, a/k/a Coultas, Petitioner-Appellee, and STEPHEN S. HOSTETLER, Respondent-Appellant.
    First District (5th Division)
    No. 83—251
    Opinion filed May 4, 1984.

      Edmond Ralph Anderson, Jr., of Laguna Hills, California, for appellant.
    Faye M. Coultas, of Curran & Coultas, of Osage Beach, Missouri, for appellee.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

Respondent, Stephen S. Hostetler, appeals from an order of the circuit court of Cook County which entered declaratory judgment that two of its prior orders were valid and worthy of full faith and credit, and based thereon, entered judgment in favor of petitioner for child support arrearages in the amount of $9,138.53. Respondent’s principal contention on appeal is that the previous orders were entered without personal jurisdiction over respondent and are therefore void. For the reasons which follow, we reverse the order from which the appeal has been taken.

The facts are relatively uncomplicated. On November 24, 1965, the parties’ marriage was dissolved by the circuit court of McLean County, Illinois. Respondent admits that the McLean County court had acquired personal jurisdiction over him at the time of the divorce decree and that he complied with its provisions for child support. On September 5, 1969, petitioner filed in the circuit court of Cook County as her initial pleading a petition for modification of the divorce decree entered in McLean County. This petition was stamped “Foreign Decree” although the allegations and the attached certified copy indicated that the original decree of divorce was entered in McLean County, Illinois. On November 12, 1969, notice of the hearing on this petition was sent to respondent at his California residence. Pursuant thereto, an order was entered on November 20, 1969, purporting to modify the decree of divorce entered in McLean County by increasing child support payments to $150 per month and ordering respondent to pay petitioner’s attorney fees of $250. On February 7, 1972, petitioner filed in the circuit court of Cook County a “Petition to Convert Arrearages of Attorney Fees and Child Support into Money Judgment and That Execution Issue.” Respondent was served notice of this petition by return receipt mail addressed to his California residence. The circuit court entered judgment in favor of petitioner in the amount of $1,810 and awarded her attorney fees of $100 on February 11, 1972. No summons was served on respondent in connection with either the 1969 or the 1972 petitions. On October 3, 1979, respondent filed a motion in the circuit court of Cook County seeking to vacate the 1969 and 1972 orders rendered by that court. The motion alleged that the court lacked jurisdiction and that the circuit court of McLean County had continuing exclusive jurisdiction over the subject matter. The record does not reflect a disposition of this motion. On July 24, 1981, petitioner filed a petition for declaratory judgment and for judgment on arrearages in support. The petition sought a declaration that the orders of November 20, 1969, and February 11, 1972, were valid and entitled to full faith and credit. On December 29, 1982, after hearing arguments of counsel, the circuit court entered an order finding the child support arrearage to be $9,138.53 and further finding that the 1969 and 1972 orders were valid and worthy of full faith and credit. Respondent has appealed from that order.

Opinion

Respondent contends that the circuit court erred in finding that the two prior orders were valid and in entering judgment on the arrearages which had accrued based on those orders. He argues that the 1969 and 1972 orders were entered without either personal or subject matter jurisdiction and that the orders are therefore void.

It appears from the record that respondent was never served with a summons for any of the proceedings in the circuit court of Cook County. “Jurisdiction over a person cannot be had by serving him with a notice; a court acquires jurisdiction over a person only after proper service of summons. [Citation.] There is, of course, an exception to this rule where the defendant or respondent voluntarily appears or is permitted to intervene.” (Augsburg v. Frank’s Car Wash, Inc. (1982), 103 Ill. App. 3d 329, 333, 431 N.E.2d 58; see also Knightsbridge Realty Partners, Ltd.-75 v. Rudolph (1982), 106 Ill. App. 3d 354, 357, 435 N.E.2d 1223.) In the instant case, respondent did not appear or intervene prior to the entry of either the 1969 or 1972 orders. Thus the circuit court could only have acquired jurisdiction over him by service of summons. (Augsburg v. Frank’s Car Wash, Inc. (1982), 103 Ill. App. 3d 329, 333; see also In re Marriage of Schuham (1983), 120 Ill. App. 3d 339, 458 N.E.2d 559; Ill. Rev. Stat. 1969, ch. 110, par. 17(2) (requiring service of summons for exercise of “long arm” jurisdiction).) This was not done and the circuit court of Cook County therefore did not acquire personal jurisdiction over defendant. We note that had petitioner elected to proceed in the circuit court of McLean County, which respondent admits had jurisdiction over him pursuant to his appearance, mere notice would have been sufficient to bind respondent personally. McClellan v. McClellan (1970), 125 Ill. App. 2d 477, 485, 261 N.E.2d 216.

Petitioner argues that because respondent submitted to the jurisdiction of the McLean County circuit court he was properly subject to the authority of the circuit court of Cook County pursuant to a transfer of proceedings from the former to the latter court. Respondent replies that none of the procedures employed by petitioner effected a “transfer” of jurisdiction to the circuit court of Cook County. Petitioner did not seek an order to transfer the cause from the circuit court of McLean County and no such order was entered. Nor did petitioner comply with the procedure for enforcing a divorce decree entered in another county. That procedure, described in Fuhrer v. Fuhrer (1968), 91 Ill. App. 2d 358, 361-62, 235 N.E.2d 389, and rendered obsolete in cases such as that sub judice by the adoption of section 512(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 512(a)), contemplates service of summons upon the respondent. We conclude that there was no “transfer” of the McLean County action to Cook County and that the latter court therefore lacked personal jurisdiction over the defendant.

Petitioner’s remaining arguments pertain to the concept of subject matter jurisdiction, particularly the doctrine of continuing jurisdiction in decretal courts. (See generally Sommer v. Borovic (1977), 69 Ill. 2d 220, 370 N.E.2d 1028.) As has been pointed out by the courts of this State, subject matter jurisdiction is derived by the circuit courts from article VI of the Illinois constitution and is the power of the court to hear and determine causes of the general class to which the particular cause belongs. (Knightsbridge Realty Partners, Ltd.-75 v. Rudolph (1982), 106 Ill. App. 3d 354, 357, 435 N.E.2d 1223.) Personal jurisdiction, in contrast, is not conferred in any particular case by a constitutional grant but rather by the service of summons or by a general appearance (106 Ill. App. 3d 354, 357), and is derived from the actions of the person sought to be bound (see Green v. Advance Ross Electronics Corp. (1981), 86 Ill. 2d 431, 437, 427 N.E.2d 1203). Without personal jurisdiction a court, although vested with subject matter jurisdiction, is without power to impose personal obligations such as the payment of money. (In re Marriage of Schuham (1983), 120 Ill. App. 3d 339, 343, 458 N.E.2d 559.) Our conclusion that the circuit court of Cook County lacked personal jurisdiction to enter the 1969 and 1972 orders renders a discussion of continuing subject matter jurisdiction superfluous. (Augsburg v. Frank’s Car Wash, Inc. (1982), 103 Ill. App. 3d 329, 334, 431 N.E.2d 58.) For the same reason we need not consider respondent’s due process argument. Accordingly, we hold that the orders of November 20, 1969, and February 11, 1972, were void and the trial court in the order appealed from erred in concluding otherwise.

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

Reversed.

LORENZ and SULLIVAN, JJ., concur.


author: PRESIDING JUSTICE WELCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM M. MIDDLESWART, Defendant-Appellant.
    Fifth District
    No. 82—619
    Opinion filed May 11, 1984.
    Randy E. Blue and Dan W. Evers, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Don W. Weber, State’s Attorney, of Edwardsville (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

On January 3, 1983, defendant William Middleswart shot his wife, Patricia Middleswart, in the parking lot of a truck stop in Troy, Illinois, causing her death. He has not denied shooting her. The primary issue presented by this appeal is instead whether the defendant was acting under a sudden and intense passion resulting from serious provocation when he did so. A jury in the circuit court of Madison County found the defendant guilty of murder, but he asserts that the evidence at trial proves him guilty only of voluntary manslaughter. He also takes issue with certain jury instructions and his 30-year sentence of imprisonment.

The defendant had been married to Patricia for several weeks at the time of her death. He was divorced from his first wife, Carla, shortly before his marriage to Patricia. The defendant was an over-the-road trucker, and in late December 1982 and early January 1983 he was traveling with Patricia on what was intended as a combination of a business trip and honeymoon. He picked up a load of paper in Green Bay, then they spent New Year’s Day in Madison, Wisconsin, and the following evening in Bloomington, Illinois. They left Bloomington in the morning of January 3, and arrived at a truck stop in Troy, Illinois, in the mid-afternoon hours. The defendant was scheduled to deliver his load of paper at Granite City that day.

Soon after arriving in Troy, thé defendant walked to a nearby western store, bought his wife a cowboy hat, and then they entered the “This-is It” lounge, across the street from the truck stop. Patricia and the defendant ordered several beers and watched a football game on television, after he finished working on his log books. Carl Kirchaner, who was tending bar at the tavern that afternoon, recalled a couple who entered at 3 p.m. He served them three or four beers apiece. Kirchaner described the couple as amicable, and as “having a joyous time,” but he was not certain whether he could identify the defendant. Kirchaner left the bar after 6 p.m.

The defendant and Patricia remained at the lounge after Kirchaner’s departure. Kirchaner was replaced by Patricia Gum, who owns the “This is It” lounge. Ms. Gum observed the defendant and Patricia enter her establishment at about 3 p.m., and she testified that, at first, the Middleswarts did not appear contentious. She spoke with Patricia Middleswart and ascertained that she was from Nebraska.

At about 9 p.m., the defendant and Patricia began to quarrel. Patricia instigated the argument, according to Ms. Gum and the defendant. She told the defendant that she was unhappy because the defendant’s family did not accept her since she had been a prostitute before their marriage. Patricia told him that his family did not appreciate the sacrifice she had made in giving up prostitution for him. At trial, the defendant acknowledged that he was aware of Patricia’s previous activities long before he married her.

Ms. Gum recalled that she turned up the juke box so that the Middleswarts would not disturb the other patrons. She said that the defendant then left the bar twice by himself and returned to persuade Patricia to go with him, but she would not. The defendant testified that he left the lounge only once by himself, with his log books, and he went to his truck to wait for Patricia. When she did not join him, he returned to the bar.

Upon the defendant’s return, Ms. Gum overheard Patricia warn the defendant not to touch her or “Mr. X would do away with him.” The defendant did not strike Patricia during the argument, but he occasionally took hold of her arm. Ms. Gum heard Patricia tell the defendant that she intended to leave him, and that defendant corroborated that statement, but she did not hear Patricia say that she made a date for that evening with another man. Patricia did speak with another truck driver at the tavern, and he shared some food with her. That conversation took place in the presence of Ms. Gum and the defendant.

After 10 p.m., the Middleswarts finally left the tavern. Ms. Gum did not consider either of them intoxicated, but the defendant said that he had had “more than enough to be considered legally drunk,” because he drank two or three beers every hour at “This is It.” He also indicated at trial that he took one double dexedrine pill in Bloomington and another pill upon arriving at Troy. However, in statements given the day of the shooting and the next day, the defendant told the authorities that he drank only five or six beers that night and did not take any drugs.- The defendant testified that Patricia was not intoxicated.

Patricia and the defendant returned to the parking lot of the truck stop, where Patricia locked herself in the cab of the defendant’s truck. The defendant later recounted to police that he had to break a vent window to enter the cab. Once he was again inside the cab, the defendant continued the argument with Patricia. She told him that things would be better once they moved from Kearney, Nebraska, to Omaha because she “could make a lot of money in Omaha.” She explained that she wanted to go back to prostitution, starting that evening. Patricia said that a truck driver had offered her $20 to stay the night with him, and she intended to accept his offer. She also told the defendant that she wanted a divorce and she would find her own way back to Nebraska. Patricia informed the defendant that she would be in another truck several trucks away from the defendant’s rig, and then she exited the cab.

The defendant followed her out of the cab, exhorting her not to leave. She shouted an obscenity to him in reply. The defendant then removed a pistol from his pocket. He recalled at trial, “And all I could think of at that time was, it’s all over, you know, my whole world’s gone. I gave up one woman and two children to — I gave up my two sons, I walked out on them and left a house, a steady job and now Patricia’s leaving and I won’t have her, *** I don’t have anything left.” Two psychologists who examined the defendant described him as an anxious and explosive individual, capable of generating anger and hostility and with a tendency to overreact to an emotional situation. In a statement made the night of the shooting, the defendant indicated, “I flipped out.”

At trial, he recounted that while standing outside the truck, Patricia was screaming at him at the top of her lungs. He had told police that she stated, “Okay, big man blow me away.” According to the defendant, “she tried to reach out and grab at me and I took a step back and I heard an explosion. Patricia fell.” The defendant continued to shoot her after she fell to the ground. The pathologist who performed an autopsy on Patricia’s body was of the opinion that her death was caused almost instantaneously by the shots, three of which entered her brain.

After shooting Patricia, the defendant pointed the revolver at himself. He pulled the trigger, but the bullet only grazed his head. He went back into the cab, searched in the sleeper for more ammunition, and then reloaded the gun. As he later told police, he reconsidered his decision to kill himself, and thought that as long as he had missed himself, he “might as well leave.” He returned to Patricia’s body, saw that it was partially under his trailer, then moved it under another trailer. The defendant left the truck stop in his rig, quickly and with his lights off. He was apprehended in minutes, several miles from the truck stop, after he had tossed the revolver away near an interstate ramp. It was later recovered.

With the exception of a few details, the evidence presented at trial is not conflicting. The defendant argues that this evidence establishes his guilt of voluntary manslaughter rather than murder. A person commits voluntary manslaughter when he kills an individual without lawful justification, “acting under a sudden and intense passion resulting from serious provocation ***.” (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 2(a).) Serious provocation is “conduct sufficient to excite an intense passion in a reasonable person,” and thus provocation must be shown objectively, not subjectively. (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 2(a); People v. Matthews (1974), 21 Ill. App. 3d 249, 314 N.E.2d 15.) The acts which the law recognizes as serious provocation are substantial physical injury or assault, mutual quarrel or combat, illegal arrest, and adultery with the offender’s spouse, but not mere words or gestures or trespass to property. People v. Strong (1979), 79 Ill. App. 3d 17, 398 N.E.2d 216.

The defendant’s altercation with Patricia fails to raise a jury question concerning whether he acted under serious provocation resulting from a “mutual quarrel or combat.” (People v. Neal (1983), 112 Ill. App. 3d 964, 446 N.E.2d 270.) Although the defendant touched Patricia’s arm several times in the tavern, they certainly never came to blows, and Patricia was attempting to depart the defendant’s rig when he followed her, continuing the dispute. (Compare People v. Seaberry (1978), 63 Ill. App. 3d 718, 380 N.E.2d 511.) The only remaining type of provocation arguably applicable to this case is that resulting from adultery. The People do not say that the facts of this case raise no jury question concerning the existence of that type of provocation. We believe that an issue of fact has been presented on whether the defendant acted under legally cognizable provocation. (People v. Carr (1980), 91 Ill. App. 3d 512, 414 N.E.2d 1108; People v. Ahlberg (1973), 13 Ill. App. 3d 1038, 301 N.E.2d 608.) Yet, the defendant’s argument is not whether the jury could have so found, but whether the evidence compels such a finding.

New Illinois cases have determined what adultery-related conduct constitutes sufficient provocation to justify a conviction of voluntary manslaughter instead of murder. Generally, adultery with a spouse as provocation “has been limited to those instances where the parties were discovered in their act of adultery, or immediately before or after its commission, and the killing must have followed immediately upon detection.” (People v. Wax (1966), 75 Ill. App. 2d 163, 182, 220 N.E.2d 600, 610; People v. Jenkins (1975), 30 Ill. App. 3d 1034, 333 N.E.2d 497.) Proof of this provocation has often been found insufficient even to raise a jury question in Illinois, either because the alleged adulterous conduct or its discovery or admission was remote from the killing (People v. Wax (1966), 75 Ill. App. 2d 163, 220 N.E.2d 600; People v. Arnold (1974), 17 Ill. App. 3d 1043, 309 N.E.2d 89) or because there was no evidence that adultery had occurred or was threatened (People v. Jenkins (1975), 30 Ill. App. 3d 1034, 333 N.E.2d 497). Here, however, the victim, a former prostitute, expressed her intentions to resume her trade that evening, a few trucks away from the defendant’s rig, and her death occurred very shortly after she made those intentions plain.

Nevertheless, we do not agree with the defendant’s position that this evidence supports only a conviction of voluntary manslaughter. The trier of fact must normally determine whether a homicide is murder or manslaughter, and a reviewing court will disturb a finding of guilty only where the evidence is so unreasonable, improbable or unsatisfactory as to leave a reasonable doubt of the defendant’s guilt. (People v. Evans (1981), 92 Ill. App. 3d 874, 416 N.E.2d 377.) It has been stated that words alone, even those that carry messages of adultery, are insufficient evidence of provocation (People v. Arnold (1974), 17 Ill. App. 3d 1043, 309 N.E.2d 89; but see People v. Ahlberg (1973), 13 Ill. App. 3d 1038, 301 N.E.2d 608), and, given this principle, the jury could have found that the actions of the decedent did not constitute serious provocation. The evidence accordingly supports the defendant’s murder conviction.

Next, the defendant argues that the court erred in giving the jury an issues instruction for murder which did not require the State to prove that he was not acting under serious provocation when he shot his wife. He did not present this objection at the instruction conference or in his written post-trial motions. This issue has therefore not been preserved for our review. (People v. Huckstead (1982), 91 Ill. 2d 536, 440 N.E.2d 1248.) Nor does the omission of the language now requested by the defendant rise to the level of plain error (People v. McGee (1982), 110 Ill. App. 3d 766, 775, 443 N.E.2d 1057, 1063-64), especially in view of authority holding that issues instructions in murder cases need not require the State to negate that the defendant acted under serious provocation. (People v. March (1981), 95 Ill. App. 3d 46, 419 N.E.2d 1212.) Defendant’s reliance on People v. Stuller (1979), 71 Ill. App. 3d 118, 389 N.E.2d 593, is misplaced. Stutter was concerned with inconsistent verdicts, and the jury had returned a verdict of guilty on both the manslaughter and the murder charge, unlike the case at bar where the verdict was guilty of murder alone. People v. McGee (1982), 110 Ill. App. 3d 766, 775, 443 N.E.2d 1057, 1063; see also People v. Fox (1983), 114 Ill. App. 3d 593, 449 N.E.2d 261.

Finally, the defendant characterizes his 30-year sentence of imprisonment as excessive. No evidence in aggravation or mitigation was presented at the sentencing hearing. The trial court found in mitigation that the defendant acted under a strong provocation (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 5—3.1(a)(3)) and that his conduct was the result of circumstances unlikely to recur (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 5—3.1(a)(8)). In aggravation, the defendant has a prior felony conviction, although it was entered in 1971 (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 5—3.2(a)(3)), and, as the trial court indicated, the sentence imposed would have a deterrent effect (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 5—3.2(a)(7)). The record shows that deterrence was not the sole justification for the sentence, but, as the People argue, that factor is especially important in this case because the shooting occurred during a domestic quarrel.

In sentencing the defendant, the court stated that it could not “overlook the fact that [the defendant’s] conduct and behavior resulted in the infliction of death to another person.” The defendant argues that inasmuch as death occurs in all homicides, the court should not have considered that factor in determining his sentence. (But see People v. Horstman (1981), 103 Ill. App. 3d 17, 430 N.E.2d 523.) However, even if a court may not rely upon that factor, the record confirms that the trial court noted the death of the victim only briefly and gave no weight to that factor in imposing sentence. (People v. Bourke (1983), 96 Ill. 2d 327, 449 N.E.2d 1338.) The defendant’s sentence is fully justified on other grounds. In addition to the aggravating factors found by the court, the evidence at trial indicates that the defendant shot Patricia several times after she fell to the ground. Also, he then left the truck stop with the lights of his truck turned off, discarded the murder weapon, and stopped his truck only after being confronted by a deputy with a shotgun. In determining a sentence, the court may consider the nature and circumstances of the offense, as well as the character of the defendant; appropriate deference must be paid to the trial court’s superior ability to evaluate the defendant’s conduct. (People v. Requena (1982), 105 Ill. App. 3d 831, 435 N.E.2d 125.) Under these standards, we cannot say that the sentence imposed on the defendant constituted an abuse of discretion. People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.

The judgment of the circuit court of Madison County is affirmed.

Affirmed.

JONES and KASSERMAN, JJ., concur.


author: JUSTICE LINDBERG

text:
    LEONA MIELKE, Plaintiff-Appellant, v. CONDELL MEMORIAL HOSPITAL et al., Defendants-Appellees.
    Second District
    No. 83—360
    Opinion filed April 30, 1984.

      Donald T. Morrison & Associates, of Waukegan, for appellant.
    Joanna C. New, D. Kendall Griffith, and Michael F. Henrick, all of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, for appellee Con-dell Memorial Hospital.
    Robert Marc Chemers, of Pretzel & Stouffer, Chartered, of Chicago, for appellee Robert Munson.
    James A. Christman and Ruth E. Van DeMark, both of Wildman, Harrold, Allen & Dixon, of Chicago, for appellee Burton Miller.
   JUSTICE LINDBERG

delivered the opinion of the court:

Plaintiff, Leona Mielke, appeals from an order of the circuit court of Lake County directing a verdict in favor of defendant-appellee Con-dell Memorial Hospital (Condell Hospital) and from a judgment entered on jury verdicts in favor of defendants Burton Miller, M.D., and Robert Munson, M.D. Plaintiff assigns as errors the improper impeachment of its expert witness, the trial court’s reservation of an evidentiary ruling until after cross-examination, the trial court’s order granting Condell Hospital’s motion for a directed verdict, and its exclusion of expert testimony summarizing the medical literature. We affirm.

Plaintiff was admitted to Condell Hospital on December 10, 1978, for emergency treatment of a perforated duodenal ulcer. Her blood pressure was extremely low, her pulse was rapid, she was experiencing severe abdominal pain and had been vomiting blood. Munson, an internist and the attending physician, testified she was in shock. Miller, a board-certified general surgeon, examined plaintiff and recommended she be given penicillin and gentamicin, two antibiotic drugs.

Plaintiff subsequently underwent two surgical procedures, the first to repair a perforated ulcer, and the second to remove an abdominal abscess. Both surgeries were performed by Miller. To combat a potentially serious infection, plaintiff was given gentamicin before and after each of the surgical operations. She also was given Lasix, a diuretic, to counteract fluid which had collected in her lungs following the abdominal abscess surgery. Both drugs have an indicated side effect of autotoxicity.

On December 27, plaintiff complained of a headache and blood was discovered in her urine. At trial, plaintiff’s witness, Dr. M. Reese Guttman, testified that plaintiff suffered loss of her labyrinth, the inner ears’ balance function because of the gentamicin she was given at the hospital. Guttman stated persons suffering from a total loss of labyrinthian function on each side are unable to walk without aid, are housebound, and cannot perform household duties unless they are seated. He further testified the condition was permanent.

At the close of plaintiff’s case, the trial court allowed the motion of Condell Hospital for a directed verdict because of the absence of proof of the hospital’s negligence. Thereafter, the jury returned verdicts of not guilty for the defendant doctors and the trial court entered judgment on the verdicts. Plaintiff’s post-trial motion was denied and she filed a timely notice of appeal.

RESERVATION OF RULING ON ADMISSIBILITY OF EVIDENCE

Plaintiff first assigns as error the trial court’s reservation of its ruling on the admissibility of the drug manufacturer’s insert. During his direct testimony, plaintiff’s expert witness, John W. Frost, M.D., was asked to identify plaintiff’s exhibit No. 3, the gentamicin package insert, and was asked whether the insert embodied the standard of care about which he testified. When Frost responded that it did, plaintiff offered the package insert into evidence. Defense counsel objected on the ground that the standard of care could only be established from physician testimony, the directions were not mandatory, and the foundation for the insert was insufficient. The court elected to reserve its ruling until after the cross-examination of Frost and also reserved its ruling on plaintiff’s exhibit No. 4, the 1977 Physiclan’s Desk Reference (PDR), also identified by Frost as embodying the standard of care. Folio-wing re-cross-examination of Frost, the package insert and the PDR were admitted into evidence by stipulation of all of the parties. The stipulation included the condition that exhibit Nos. 3 and 4 would not go to the jury.

At the close of plaintiffs case, plaintiff’s attorney read the contents of exhibit No. 3 to the jury while the package insert was projected onto a screen in the darkened courtroom. Plaintiffs attorney also used both exhibit Nos. 3 and 4 to cross-examine Drs. Miller and Munson and their expert -witnesses and relied upon both exhibits in her closing argument. The essence of plaintiffs argument, therefore, is solely that the trial court erred by reserving its ruling on the admissibility of the exhibit until after Frost’s direct testimony even though the exhibits were subsequently introduced.

The cases cited by plaintiff do not warrant the conclusion that the trial court erred in the case at bar. The supreme court in Ohligschlager v. Proctor Community Hospital (1973), 55 Ill. 2d 411, 417, held that a package insert was admissible as prima facie evidence of the requisite standard of care. In Ohligschlager, however, the plaintiff had not offered expert witness testimony; therefore, the court concluded “this record presents an appropriate state of facts for applying an exception to the rule.” Here, in contrast, plaintiff introduced expert testimony. Plaintiffs reliance on Alton v. Kitt (1982), 103 Ill. App. 3d 387, 431 N.E.2d 417 and Callan v. Nordland (1983), 114 Ill. App. 3d 196, 448 N.E.2d 651, also is not directly on point. In Alton, the court allowed the expert to testify from the PDR not only because he was familiar with it, but because he had written portions of it. (Alton v. Kitt (1982), 103 Ill. App. 3d 387, 398, 431 N.E.2d 417, 425.) Here, there was no testimony that Frost wrote any portion of the PDR. In Callan, the court held that the package insert from a drug used to fill a prescription for another genetically equivalent drug could be admitted into evidence. Here, no evidence was presented like in Callan of a drug’s brand name being confused with its generic name. Also, the Callan court expressly limited its holding to the particular facts presented there: “[W]e express no opinion as to any issue not raised by the particular circumstances of this cause.” Callan v. Nordland (1983), 114 Ill. App. 3d 196, 200, 448 N.E.2d 651, 654.

Even were these cases directly on point, plaintiff’s argument here must fail because the insert was read to the jury, was used during cross-examination and closing argument, and was admitted into evidence by stipulation. The parties also agreed that the package insert and the PDR were the same. Therefore, the jury was presented with the contents of the package insert and the relevant portion of the PDR. Although plaintiff asserts prejudice because Frost was precluded from using the insert in his direct testimony, we note that plaintiff did not attempt to recall Frost for examination after exhibit Nos. 3 and 4 were admitted. Plaintiff cites no case where the trial court’s reservation of an evidentiary ruling was error when the evidence was subsequently admitted. Contrary to plaintiff’s contention, even if the trial court’s reservation were error, such error would be harmless. The jury heard and read the package insert and was present when defense witnesses were cross-examined with the insert and the PDR. Since the information was presented to the jury, no reversible error was committed by the trial court.

IMPEACHMENT OF EXPERT

Plaintiff contends the trial court erred in allowing repeated impeachment of its expert on immaterial matters. The scope of cross-examination of a witness is within the sound discretion of the trial court. (Eckley v. St. Therese Hospital (1978), 62 Ill. App. 3d 299, 379 N.E.2d 306.) Great latitude is allowed in the cross-examination of a witness to test his accuracy, recollection and credibility. (Davidson v. Meier (1978), 60 Ill. App. 3d 386, 376 N.E.2d 799.) Any alleged error in the admission of evidence designed to impeach a witness is not reversible error where no prejudice has resulted (Chloupek v. Jordan (1977), 49 Ill. App. 3d 809, 364 N.E.2d 650), and a court of review will not presume that prejudice exists. (Atz v. Goss (1974), 21 Ill. App. 3d 878, 316 N.E.2d 29.) The fact that an expert witness is impeached during cross-examination is not prejudicial. Becker v. Aquaslide ‘N’ Dive Corp. (1975), 35 Ill. App. 3d 479, 341 N.E.2d 369.

Applying these principles to the instant case, no reversible error is raised by plaintiff. At trial, Frost answered affirmatively that he knew what the standards of care were for administering and monitoring drugs “here” in 1978. In his deposition, however, Frost stated he was not familiar with the standards in the area in 1978 “because I wasn’t in this area in 1978.” Since these answers are inconsistent, they affect his credibility and thus, impeachment on this ground was proper.

Both defendants and their experts agreed that plaintiff was gravely ill with findings consistent with widespread infection and septic shock in the emergency room on December 10, 1978. They further agreed that broad spectrum antibiotic treatment was necessary because of clinical findings of sepsis and shock. Since defendants testified they gave plaintiff gentamicin based on her condition, Frost was properly asked if plaintiff was in shock. While at trial his answer was equivocal as to whether plaintiff was in shock, in his deposition Frost was more certain, stating plaintiff was in shock. The two answers are arguably impeaching, and thus, no error was committed. Both defendant doctors stressed the importance of physician judgment in treating plaintiff’s illness. Therefore, Frost was properly impeached on the issue of whether he could form an opinion as to the care rendered without being present during plaintiff’s treatment. At trial, Frost answered he could reach an opinion concerning treatment solely from the record, but in his deposition stated “it’s rather hard when you are not there to know the circumstances ***.” While in his deposition he nevertheless stated he had formed an opinion based upon his review of the hospital record, his deposition testimony affected his credibility and the weight to be accorded his answer and thus was properly recounted by defense counsel.

Frost also gave two opposite opinions as to whether plaintiff was a “sick lady”, following the discontinuation of the first course of gentamicin. Both defendant doctors and their experts testified plaintiff was gravely ill and exhibited symptoms of recurring sepsis. Plaintiff’s condition, therefore, was material to the decision to again give gentamicin and thus, Frost’s inconsistent answers were properly raised by defense counsel.

Both defendant doctors and their experts testified that the evidence of infection warranted the continuation of gentamicin until the course was finished on the eighth day post-operatively. Therefore, Frost was asked the question whether continuation of gentamicin until the positive identity came back on the culture was good medical practice. Frost stated it was not good medical practice and that he would not have continued gentamicin that long. In his deposition testimony, however, Frost responded he might have continued the gentamicin, depending upon the condition of the patient. The disparity in his answers provided a proper ground for impeachment. Since all of the instances of impeachment concern material issues and were directed toward Frost’s qualifications or credibility, the trial court committed no reversible error.

DIRECTED VERDICT FOR HOSPITAL

Plaintiff contends the trial court erred in granting the hospital’s motion for a directed verdict. A court may direct a verdict when, at the close of all the evidence, the court has determined that even in the light most favorable to the nonmoving party, the evidence could not justify a contrary result. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510.) The reviewing court must determine whether the evidence could ever support an opposite verdict. (Eckley v. St. Therese Hospital (1978), 62 Ill. App. 3d 299, 304, 379 N.E.2d 306, 310.) A court properly directs a verdict when the opposing party has failed to produce some required element of proof in support of its cause of action. Alton v. Kitt (1982), 103 Ill. App. 3d 387, 431 N.E.2d 417.

Application of the Pedrick standard to medical malpractice cases requires the reviewing court to scrutinize the evidence submitted by the plaintiff in support of its case. (McMillen v. Carlinville Area Hospital (1983), 114 Ill. App. 3d 732, 737, 450 N.E.2d 5, 9.) In such cases, the plaintiff must establish the standard of care the hospital was required to meet, demonstrate a deviation from that standard, and indicate how the deviation resulted in harm to the plaintiff. Casbarra v. St. James Hospital (1979), 85 Ill. App. 3d 32, 36, 406 N.E.2d 544, 548.

Plaintiff asserts that the hospital’s standard of care was established by the introduction into evidence of the standards of the Joint Commission on Accreditation of Hospitals (Joint Commission standards), the package insert on gentamicin and the PDR. The parties agreed at trial that the PDR and the package insert were the same. The hospital responds that the trial court properly directed the verdict because plaintiff failed to establish a standard of care by expert testimony. Plaintiff replies that expert testimony is not mandatory in this case.

While plaintiff states that the Joint Commission standards establish a standard of care, she fails to cite any particular standard or to refer us to a place in the record where specific standards were argued to the trial court. Plaintiff cites the testimony of the hospital’s pharmacist that Condell Hospital complied with the Joint Commission standards and argues that the standards are independent evidence of a hospital’s standard of care, but she does not refer to any specific standard upon which she bases her contention. Instead, she simply includes the entire 1977 Accreditation Manual of Hospitals in the appellate record and makes only generalized conclusions that the manual establishes the standard of care. Supreme Court Rule 341(e)(7) requires an appellant’s brief to contain argument with “citation of the authorities and the pages in the record relied on.” (87 Ill. 2d R. 341(e)(7).) Strict adherence to the standard is necessary to expedite and facilitate the administration of justice. (Harvey v. Carponelli (1983), 117 Ill. App. 3d 448, 453 N.E.2d 820.) This court is not obligated to search the record for evidence supporting reversal of the trial court. (Farwell Construction Co. v. Ticktin (1980), 84 Ill. App. 3d 791, 802, 405 N.E.2d 1051, 1060.) Failure to comply with Supreme Court Rule 341(e) can operate as a waiver or can warrant dismissal of the appeal (87 Ill. 2d R. 341(e)(7)), and unless reference is made to those portions of the record supporting reversal, the argument will not be considered. (Farwell Construction Co. v. Ticktin (1980), 84 Ill. App. 3d 791.) In light of the absence of citation to either specific standards or pertinent portions of the record disclosing those standards, we conclude plaintiff has waived her reliance on the standards as evidence of the hospital’s standard of care.

Apart from the Joint Commission standards, plaintiff relied upon the PDR and the package insert as establishing the hospital’s standard of care. The general rule is that the standard of care must be established by expert testimony. (Biundo v. Christ Community Hospital (1982), 104 Ill. App. 3d 670, 673-74, 432 N.E.2d 1293, 1296.) An exception to the requirement is that the standard of care need not be established by expert testimony when the asserted breach of duty is of common knowledge or constitutes gross negligence. See Holcomb v. Magee (1920), 217 Ill. App. 272 (X-ray burns); Piper v. Epstein (1945), 326 Ill. App. 400, 62 N.E.2d 139 (sponges left in abdomen after surgery); Newman v. Spellberg (1968), 91 Ill. App. 2d 310, 234 N.E.2d 152 (injuries resulting from gastroscopic examination).

Plaintiff offered no expert testimony on the standard of care of the hospital. Rather, she contends that the record contains sufficient independent evidence of the negligence of the hospital (the PDR and the package insert). If in advancing this argument plaintiff contends that no expert testimony is required because the interaction of the two drugs is within every person’s common knowledge, then we find her position untenable. In a complex situation such as is present here, involving the pharmacological effects of a drug regimen, a layperson cannot be expected to determine without the aid of expert testimony what standard should be used to judge the hospital’s conduct. This case is not a situation where conduct is so grossly negligent “that a layman could readily appraise it, in which event expert testimony may not be necessary.” Casbarra v. St. James Hospital (1980), 85 Ill. App. 3d 32, 36, 406 N.E.2d 544, 549.

Neither do we agree that her reliance on the PDR and the package insert is sufficient to establish the standard in the absence of expert testimony. While we agree that “the standard of care applicable to a hospital may be proved via a number of evidentiary sources” (Greenberg v. Michael Reese Hospital (1980), 83 Ill. 2d 282, 294), plaintiff has not cited nor can we find any case where a package insert and a passage from the PDR alone established a hospital’s standard of care. Plaintiff’s reliance on Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 332, cert. denied (1966), 383 U.S. 946, 16 L. Ed. 2d 209, 86 S. Ct. 1204, for the proposition that Joint Commission standards are independent evidence of a standard of care is not persuasive, because plaintiff here has waived any reliance on the Joint Commission standards to establish Condell Hospital’s standard of care.

Plaintiff also relies on two Federal cases to support her contention that the evidence established the hospital’s standard of care. In Monk v. Doctors Hospital (D.C. Cir. 1968), 403 F.2d 580, the patient suffered burns after receiving treatment to remove moles from her body. Plaintiff sued the hospital and the doctor for negligence, relying in large part upon the instruction manuals published by the manufacturer of the burn machine to establish the hospital’s standard of care. The Monk court held that while the manuals were not conclusive of the proper standard of care, they were relevant and admissible to guide the jury. Despite its statement “expert testimony is not always an evidentiary prerequisite for establishing the standard of care and the locality,” Monk does not require the conclusion that the trial court here erred. The Monk court stated the manuals were not conclusive evidence. Likewise, the PDR and package insert while relevant are insufficient to establish a prima facie case of Condell Hospital’s standard of care.

The decision in Lucy Webb Hayes National Training School v. Perotti (D.C. Cir. 1969), 419 F.2d 704, is also distinguishable from the instant case. There, the psychiatric patient died after jumping from a hospital window. In dictum, the court stated that the jury could have concluded even without expert testimony that the hospital acted negligently. Because the hospital had set its own rules restricting the movement of patients like the plaintiff, the Lucy Webb court reasoned, the jury “could reasonably conclude that the hospital’s failure to observe the standards it had itself established represented negligence.” (419 F.2d 704, 710.) The plaintiff in Lucy Webb introduced into evidence the specific hospital procedure requiring a staff member to accompany a closed-section patient when the patient went anywhere in the hospital. Here, in contrast, plaintiff did not cite a specific Joint Commission standard forming the basis of the hospital’s standard of care. Thus, Lucy Webb is distinguishable.

Even if the evidence did establish the hospital’s standard of care, plaintiff failed to prove that the hospital breached that standard. Plaintiff’s argument appears to be that the failure of the hospital pharmacy to inform the attending physician concerning the potential adverse interaction between Lasix and gentamicin was a sufficient deviation from the Joint Commission standards to submit the issue of the hospital’s negligence to the jury. Since plaintiff has waived her reliance on the Joint Commission standards, her only bases for establishing a breach of a standard of care are the PDR and the package insert. As noted by plaintiff, the PDR and the insert contain warnings issued by the manufacturers of the drug products to the medical profession concerning the concurrent use of gentamicin and a potent diuretic. While these sources may provide relevant evidence of a standard of care or its breach, such evidence alone is too general to establish even a prima fade case of Condell Hospital’s breach of a standard of care.

Even considering plaintiff’s evidence regarding the Joint Commission standards, no breach of care was established. Plaintiff does not refer to any specific Joint Commission standard or recommendation. The record discloses that the hospital pharmacist testified that Condell Hospital in 1978 complied with the provisions of the Joint Commission on Accreditation of Hospitals, and that the hospital maintained a drug monitoring service in which a registered pharmacist reviewed and judged the drug therapy of each patient. The pharmacist also testified a hospital pharmacist would discuss a particular drug with the physician if it were inappropriate. The pharmacist further stated plaintiff’s drug regimen was reviewed with regard to interactions, interferences, and incompatibilities. Plaintiff did not offer any evidence that lack of communication between the pharmacist and the physician here was a deviation from a standard of care. Plaintiff did not establish that Condell Hospital’s drug monitoring program was deficient. Plaintiff did not cite to any evidence establishing that plaintiff’s drug regimen was inappropriate. The potential adverse interaction of two drugs highlighted in the PDR does not establish a prima fade case that under the facts presented here gentamicin was inappropriately given and that Condell Hospital breached a standard of care. Therefore, the trial court properly directed a verdict in favor of the hospital.

EXPERT TESTIMONY SUMMARIZING HISTORY AND CONTENT OF MEDICAL LITERATURE

Plaintiff’s final argument is that the trial court erred in refusing to allow her expert to testify as to the history and content of medical literature regarding gentamicin and Lasix. At trial, plaintiff’s only expert witness was Frost. During direct examination of Frost, plaintiff asked him to review the literature on the history of gentamicin from 1964 “particularly with emphasis on its ototoxicity and interaction with Lasix.” In answering plaintiff’s question, Frost began reading from notes he had taken on his review of the literature. One defendant objected, arguing Frost’s summary of the articles constituted hearsay. If plaintiff were allowed to present testimony concerning the contents of the articles, defendant contended, the jury would hear evidence which defendants would be unable to challenge on cross-examination. Plaintiff made an offer of proof, wherein Frost stated his notes summarized articles written by well-recognized authorities, his opinion of the standard of care was based upon the notes, and his testimony, if allowed, would parallel his notes. The trial court refused to allow Frost to read from his notes even though plaintiff stated she did not desire to have the notes admitted into evidence. The court agreed “that Frost was not precluded from stating his opinion and the authorities forming the basis of the opinion,” but was prohibited from reading from his notes or from the articles themselves.

While this precise issue has not been decided by an Illinois court, several supreme court decisions have considered similar questions. In Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, cert. denied (1966), 383 U.S. 946, 16 L. Ed. 2d 209, 86 S. Ct. 1204, the defendant hospital argued the trial court erred in allowing cross-examination of its witnesses based upon the views of recognized authorities because the witnesses had not relied upon the same authorities in their direct testimony. Reversing its prior rule, the supreme court in Darling allowed such cross-examination, stating that “expert testimony will be a more effective tool in the attainment of justice if cross-examination is permitted as to the views of recognized authorities, expressed in treatises or periodicals written for professional colleagues.” 33 Ill. 2d 326, 336.

In Lawson v. G.D. Searle & Co. (1976), 64 Ill. 2d 543, 557, the court held that the defense witness properly was allowed to base his conclusion on “published clinical studies.” On direct examination, the witness grounded his opinion on “a detailed study of all the clinical studies that have been published in the literature ***.” The Lawson court refused to characterize the testimony as hearsay, noting the witness was extensively cross-examined as to his opinion based upon the literature. The court specifically noted, however, that the witness did not mention the reports by name and did not “recite the empirical data drawn from the reports or the conclusions of the researchers.” (64 Ill. 2d 543, 557.) These qualifications distinguish Lawson from the instant case. Here, by summarizing the findings of the studies in the medical literature, plaintiff was attempting to recite the data and conclusions of those articles.

The more recent case of Walski v. Tiesenga (1978), 72 Ill. 2d 249, supports defendant’s position on appeal. In Walski, the experts of both the plaintiff and the defendant were cross-examined on the basis of treatises, but the plaintiff argued that the treatise used to cross-examine the defendant doctor established the requisite standard of care and should have been admitted as substantive evidence. Rejecting the plaintiff’s contention, the Walski court stated:

“Such is not the law in this jurisdiction at this time, and it is unnecessary for us to decide now whether and under what circumstances a plaintiff may introduce medical treatises as substantive evidence; plaintiff has made no attempt to introduce the treatises used to cross-examine Dr. Tiesenga as substantive evidence.” (72 Ill. 2d 249, 258-59.)

This statement by the Walski court suggests that the articles cannot be used as substantive evidence here to establish defendant’s standard of care. See Plost v. Lewis A. Weiss Memorial Hospital (1978), 62 Ill. App. 3d 253, 259, 378 N.E.2d 1176, 1180 (scientific works generally not admissible in Illinois as direct evidence).

Plaintiff argues the supreme court’s adoption of Federal Rules of Evidence 703 and 705 in Wilson v. Clark (1981), 84 Ill. 2d 186, cert. denied (1981), 454 U.S. 836, 70 L. Ed. 2d 117, 102 S. Ct. 140, requires reversal of the trial court’s ruling. Because hospital records are highly reliable, the Wilson court held that an expert even though not the treating physician may give his response to a hypothetical question based on facts contained in hospital records not introduced into evidence. In reaching its conclusion, the Wilson court relied upon its earlier decision, People v. Ward (1975), 61 Ill. 2d 559, where it held that medical records could be used by the treating doctor in forming an opinion as to the accused’s sanity even though the reports were not introduced as evidence.

Several recent decisions have interpreted Ward. In People v. Rhoades (1979), 73 Ill. App. 3d 288, 391 N.E.2d 512, the court expressly concluded that a psychiatric expert could testify not only that he relied upon medical records in forming his opinion, but also could testify as to the contents of those records. (See also People v. Castro (1983), 113 Ill. App. 3d 265, 446 N.E.2d 1267; Kinsey v. Kolber (1982), 103 Ill. App. 3d 933, 431 N.E.2d 1316; In re Germich (1981), 103 Ill. App. 3d 626, 431 N.E.2d 1092.) In In re Smilley (1977), 54 Ill. App. 3d 31, 369 N.E.2d 315, however, the court distinguished Ward and concluded that since the testifying doctor had not supervised the psychiatric intake report, he could not testify based upon the report. The court in Bailey v. City of Chicago (1983), 116 Ill. App. 3d 862, 452 N.E.2d 680, also discussed Ward. There, the plaintiff sued the city of Chicago for personal injuries. In cross-examination, the city sought to establish that the plaintiff had been involved with a minor girl and had beaten his father. On appeal, the city argued the incidents were established by a defense witness’ reference to the notations in the plaintiff’s hospital records. The records were not introduced into evidence and the physician to whom the statement was made did not testify. Citing Wilson v. Clark (1981), 84 Ill. 2d 186, cert. denied (1981), 454 U.S. 836, 70 L. Ed. 2d 117, 102 S. Ct. 140, the defendants argued “the witness could rely on the notation in the record as substantive evidence that the incident occurred.” Rejecting this argument, the Bailey court noted both that Wilson involved the testimony of experts based upon medical records, not the introduction of the records themselves, and that the medical records compiled by a nontestifying individual remained inadmissible hearsay on direct examination. Therefore, the Bailey court concluded the trial court improperly allowed as direct evidence that the incidents occurred reference to the remarks in the hospital records concerning the incident.

Similarly, plaintiff here is attempting to introduce the facts in the articles as substantive evidence on direct testimony regarding gentamicin and Lasix. While prior decisions make clear that Frost could base his opinion on the articles and could recite the articles as sources for his opinion, Bailey supports our conclusion that the trial court properly rejected Frost’s summarization of the findings of the articles.

Also supportive of the defendants’ position are Fornoff v. Parke-Davis & Co. (1982), 105 Ill. App. 3d 681, 434 N.E.2d 793, and Mehochko v. Gold Seal Co. (1966), 66 Ill. App. 2d 54, 213 N.E.2d 581. In Fornoff, the plaintiff sought to introduce certain medical treatises as substantive evidence. In affirming the trial court’s refusal to allow introduction of the treatises, the Fornoff court stated: “An expert witness may always state the basis for his opinion; however, admission of authoritative treatises are [sic] only for the purpose of impeaching that expert. The rule prohibiting introduction of medical treatises as substantive evidence is one of long-standing.” (Fornoff v. Parke-Davis & Co. (1982), 105 Ill. App. 3d 681, 690-91.) Plaintiff seeks to distinguish Fornoff on the basis that there, the actual treatise was sought to be introduced, while here, Frost only sought to introduce the articles as supportive evidence. Her distinction is unpersuasive. Just as the author of the treatise in Fornoff was unavailable for cross-examination, the authors of the articles summarized by Frost were also unavailable for cross-examination.

In Mehochko v. Gold Seal Co. (1966), 66 Ill. App. 2d 54, 213 N.E.2d 581, the appellate court reversed the trial court’s ruling allowing the defendant’s expert witness in a products liability action to read the results of tests conducted on the product by an independent laboratory. Concluding the testimony was inadmissible hearsay, the Mehochko court stated:

“In tests, the essential elements are the results, methods and qualifications of the tester. The method and qualification of the tester (to conduct the test and correctly read its results) give the results their veracity. Dr. Lederer was not testifying from his own knowledge about an exhibit (like the X-ray or myelogram) before the court. He could not be cross-examined about an exhibit before the court. He was not testifying from his own knowledge about an exhibit before the court; he knew no more about the independent tests than he had read (been told). The tests were not before the court and he could not be cross-examined about the method (save what he read about it) nor about the tester’s qualifications to perform the experiments and correctly interpret the results. Dr. Lederer was a stranger to the evidence he introduced. He knew nothing about it save through hearsay; he could not be cross-examined about the essence of the independent tests.” (Mehochko v. Gold Seal Co. (1966), 66 Ill. App. 2d 54, 58, 213 N.E.2d 581, 583.)

Just as did the witness in Mehochko, Frost here was attempting to summarize the results of the tests that he had not conducted and about which he could not testify on cross-examination concerning the test methods and procedures. Plaintiff’s arguments that Mehochko is “inapposite” are unpersuasive. We do not read Wilson as overruling Mehochko as does plaintiff. In Wilson, the court allowed prospectively a nontreating physician to offer his opinion in response to a hypothetical question based upon records not introduced into evidence. Here, and in Mehochko, the experts were not just offering their opinion, but in addition were attempting to summarize tests and studies performed by others. Another distinguishing factor between Mehochko and the instant case on the one hand and Wilson on the other is that the tests in the former cases are significantly less reliable than are hospital records. Finally, in Wilson, the expert witness was answering a hypothetical question based upon facts contained in the plaintiff’s hospital chart. Therefore, those facts were directly pertinent to that litigation. In contrast, the disputed testimony in Mehochko did not concern the plaintiff’s injuries directly, but rather only experiments on the product conducted under potentially different conditions. Likewise, Frost’s testimony which was excluded by the trial court here did not directly concern plaintiff’s treatment, but rather summarized tests some of which occurred many years prior to plaintiff’s injuries and none of which replicated her unique circumstances. For these reasons, we find Mehochko persuasive and conclude the trial court properly prevented Frost from summarizing the medical literature.

The judgment of the circuit court of Lake County is affirmed.

Affirmed.

HOPF and NASH, JJ., concur.