author: JUSTICE ROMITI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM SIMPSON, Defendant-Appellant.
    First District (4th Division)
    No. 82—424
    Opinion filed December 13, 1984.

      Steven Clark, Martin Carlson, and Bradley S. Bridge, all of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Jeanette Sublett, and William G. Lacy, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE ROMITI

delivered the opinion of the court:

Following a jury trial, defendant William Simpson was convicted of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(a)), and sentenced to 32 years’ imprisonment. In this appeal from his conviction, defendant raises the following questions for review:

1. Whether defendant’s inculpatory statements to police during custodial interrogation should have been suppressed on the ground that he was arrested without probable cause.

2. Whether the defendant’s inculpatory statements to police during custodial interrogation should have been suppressed as involuntary on the ground that he was undergoing heroin withdrawal at the time he made the statement.

3. Whether testimony by defendant’s mother-in-law regarding a conversation she overheard between the defendant and his wife was protected by the marital privilege and consequently improperly admitted at trial.

4. Whether the defendant was deprived of a fair trial because certain State witnesses and the prosecuting attorney referred to other crimes allegedly committed by the defendant, and because of allegedly prejudicial and inflammatory statements by prosecuting attorneys at various stages in the trial.

5. Whether the trial court committed reversible error by refusing to give voluntary manslaughter instructions based upon unreasonable belief in self-defense and based upon sudden and intense passion resulting from serious provocation.

6. Whether the defendant was denied effective assistance of counsel where the trial court refused to grant him substitute counsel to argue a post-trial motion for a new trial based upon his trial counsel’s failure to call certain alibi and impeachment witnesses.

7. Whether the defendant was denied effective assistance of counsel where his trial counsel failed to call certain alibi and impeachment witnesses.

We find that the trial court’s failure to appoint substitute counsel to argue defendant’s post-trial motion for a new trial based upon ineffective assistance of counsel requires remandment of the cause for a new post-trial hearing on this motion, where defendant will be represented by counsel other than the public defender’s office. In view of this determination, we do not address defendant’s claim that his trial counsel’s failure to call certain witnesses constituted ineffective assistance of counsel. We do address defendant’s remaining allegations of error, but find them insufficient grounds to grant him a new trial.

The record reveals the following pertinent testimony and evidence. Because the defendant does not argue that he was not found guilty beyond a reasonable doubt, only a summarization of the relevant evidence and inferences therefrom need be restated here.

Defendant was convicted for the murder of William Drake. The evidence produced at the suppression hearing and at trial established that the defendant had suspected Drake of having an adulterous relationship with the defendant’s wife, Tecumseh Berry. Defendant and Berry were married on August 7, 1979, while defendant was incarcerated in the penitentiary. Berry testified that she had known Drake for about 16 to 17 years and had been having an affair with him, but that it terminated in August 1980. The defendant was released from prison in August 1980 and moved in with Berry, who was living with her mother and son (defendant was not the father of Berry’s son). The record is unclear whether the defendant suspected the involvement between Berry and the decedent prior to his release from the penitentiary or only after he was released and began living with Berry. The record also does not disclose explicitly whether the defendant was aware of their prior involvement when he married Berry, although there was evidence that the defendant did not personally know Drake or his specific identity before his release. In any event, the record establishes that the defendant, once released, suspected that the relationship had not terminated.

The record indicates that during the first few months that the defendant lived with Berry, the defendant on more than one occasion confronted Berry with his suspicions of her relationship with Drake; when Berry denied any involvement, defendant would become angry. There is some evidence in the record that on at least one occasion the defendant became violent and threatened Berry with a knife during the course of the confrontation. There is also evidence in the record that on at least a few occasions the defendant threatened to “get” Drake because of his relationship with Berry, or made some equivalent threat against him.

The last confrontation between the parties occurred on October 16 or 17, 1980, roughly two weeks before Drake was killed. At that time, Berry, her mother, and Drake were talking in Berry’s living room. The defendant entered the room; apparently he had returned to gather his belongings because he was moving out of the residence, since the defendant and Berry were considering divorce. When defendant entered the room and discovered Drake in the presence of Berry and her mother, defendant crudely informed Drake that he wanted Drake to terminate his involvement with his wife. Drake responded that the defendant should not use vulgar language about Berry in front of her mother, and told the defendant that they could discuss the matter outside the presence of the others. The defendant answered that he would “see you [Drake] later” and went to another room to gather his possessions. He then departed from the apartment.

On October 29, 1980, Drake was found lying on the street at the corner of 71st Street and Stewart Avenue. He had one gunshot wound in the lower back. It was stipulated at trial that the gunshot wound was the cause of death. There were no eyewitnesses to the incident, nor anyone who had seen Drake or any other individual at or near the scene near the time of death. No fingerprints were recovered from the scene, nor any weapon. No firearm linked to the event was ever recovered.

Detectives of the Chicago police department initially assigned to investigate the homicide spoke with Berry, her mother, and her son a few days after the incident and learned from them of the confrontations between the defendant, Berry, and Drake regarding her relationship with Drake. Although the officers attempted to locate the defendant to speak with him regarding the incident, they were unable to find him. As a result, they left word at the home of his mother that they wished to speak with him. They also issued a stop order — an internal police notification to fellow officers that the individual is wanted for questioning.

On December 28, 1980, at roughly 3:30 p.m., defendant and a companion were arrested for shoplifting from a grocery store and taken to the Sixth District station. The defendant gave the name of “Oscar Williamson” and gave an incorrect date as his date of birth. He was charged with theft and fingerprinted. At roughly 10 p.m., officers of the Sixth District determined that his true identity was William Simpson and that he was wanted by Area 3 officers for questioning regarding the Drake homicide. The defendant was transported by Detectives Brankin and Moser of Area 3 to that station house at roughly 11:30 p.m. that evening. When the defendant inquired about the reasons for such transportation, the detectives told him he was wanted for questioning and advised him of his rights under Miranda.

Defendant was questioned regarding the homicide at approximately 9:30 a.m. the following morning. At that time, he was questioned by Detectives McWeeny and Higgins, who first advised him of his Miranda rights. According to the officers, the defendant voluntarily explained to them that he had shot Drake on October 29. The defendant specifically told them, in substance, the following sequence of events which culminated in Drake’s death. Defendant stated that following his confrontation with Drake in the presence of Berry and her mother on October 16 or 17, he contacted Drake and arranged to meet with him at the corner of 71st Street and Stewart Avenue at 11 p.m. on October 29, 1980. At this encounter, the defendant again informed Drake that he wanted him to end his relationship with Berry. Drake responded that he had known Berry longer than the defendant had. The defendant stated that this was not important since Berry was his wife. Drake then asked whether the defendant was threatening him; the defendant responded that Drake could “take it any way he wanted to.” Drake then turned away from the defendant and opened the door and reached into his van, next to which the two had been standing during the conversation. As Drake reached into the van, the defendant shot him in the back. The defendant then fled the scene. The defendant gave substantially the same explanation of his commission of the crime to Assistant State’s Attorney Dane Cleven, to whom the defendant spoke later on the morning of December 30. The defendant refused to sign a written confession.

At the trial, defendant testified on his own behalf. He denied knowing whether Berry was having an affair, denied knowing Drake, denied making any threats of harm to Drake, and denied confronting Drake about his relationship with Berry in the living room of Berry’s apartment on October 16 or 17. He also maintained that he had not shot Drake but presented the alibi that he had been at his mother’s house playing cards on the night in question.

Following a jury trial, defendant was found guilty of murder and sentenced to 32 years’ imprisonment. His notice of appeal was timely filed.

1. Probable Cause

Defendant contends that the inculpatory statement he made to police during custodial interrogation should have been suppressed because there was no probable cause to arrest him for the homicide when the police arrested him for this crime by transporting him to the Area 3 station house. We disagree.

Probable cause exists in the objective sense if the facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested has committed the offense. (People v. Moody (1983), 94 Ill. 2d 1, 7, 445 N.E.2d 275.) It is the function of the trial court to analyze the facts and circumstances known to the arresting officers at the time of the arrest in order to determine their sufficiency; a reviewing court will not disturb these findings unless they are manifestly erroneous. People v. Free (1983), 94 Ill. 2d 378, 401, 447 N.E.2d 218, cert. denied (1983), 464 U.S. 865, 78 L. Ed. 2d 175, 104 S. Ct. 200.

The trial court, following a hearing at which Detective Higgins and the defendant testified, determined that the officers possessed probable cause to arrest the defendant for the homicide at the time he was transported to the Area 3 station house for questioning. The court took into account the officers’ knowledge from discussions with the defendant’s wife and family that the defendant had made threats of death or serious bodily harm to Drake on several prior occasions and their knowledge that the defendant had given a false name and birth date to the police when he was arrested for shoplifting. We cannot say that the trial court’s determination, based upon this evidence, was manifestly erroneous.

Defendant places particular importance on the fact that the police had not obtained a warrant to arrest him but had only issued an internal police stop order. He contends that the officers drove him to Area 3 because of this stop order, not because they had probable cause to formally arrest him for the homicide, and that they therefore did not have probable cause to effectuate an arrest. Whether the officers subjectively believed there was probable cause to arrest the defendant is irrelevant to a determination of whether the arrest was proper, however. The fourth amendment requires no more than “an objective inquiry into the reasonableness of a police officer’s conduct based on the evidence he has.” (People v. Moody (1983), 94 Ill. 2d 1, 9, 445 N.E.2d 275.) “The inquiry must focus on what was done and known by the police, not on what was believed, what the facts objectively viewed-add up to, not what the officer on the scene believed they added up to.” (94 Ill. 2d 1, 10.) It was the province of the trial court to determine objectively whether there was probable cause to arrest the defendant, which it did here. As the trial court correctly concluded, the officers’ reliance upon a police stop order was not dispositive of whether probable cause supported the defendant’s arrest for homicide.

2. Voluntariness Of The Inculpatory Statements

Defendant claims that his inculpatory statement to police during custodial interrogation should have been suppressed as involuntary because he was undergoing heroin withdrawal at the time he made the statement. We do not agree.

At the suppression hearing, the defendant testified that he had injected himself with heroin at roughly 2 p.m. of the day on which he was arrested for shoplifting and transported to Area 3. He stated that during the night he was detained at Area 3 he developed the gross symptoms of withdrawal (nausea, vomiting), that the officers were aware of his condition, and that they promised to provide him with medical attention if he cooperated with them. During the early hours of the 30th, according to defendant, various officers attempted to question him on at least two separate occasions. The defendant stated that he finally agreed to speak with them on the morning of the 30th, when the third set of officers questioned him regarding the homicide. The defendant further stated that he also told the assistant State’s Attorney who spoke with him at roughly 11:30 a.m. on December 30 that he was undergoing heroin withdrawal. A companion of the defendant who had been with him earlier on December 29 before the defendant and the companion were arrested for shoplifting also testified that she saw the defendant inject himself with heroin at roughly 2 p.m. on December 29, i.e., approximately nine hours before he was driven to Area 3.

One of the officers who drove the defendant to Area 3, however, testified that the defendant said nothing to him to the effect that he was going through heroin withdrawal, and that he showed no symptoms of such withdrawal while in the officer’s presence. The detectives working at Area 3 during the night and early morning of December 30 also testified that the defendant said nothing to them about being a heroin addict or going through withdrawal, and that he showed no signs of suffering from withdrawal. Detectives McWeeny and Higgins, who questioned the defendant on the morning of December 30, gave substantially the same testimony as did Assistant State’s Attorney Dane Cleven, who spoke with him later in the morning.

The trial court specifically found the testimony of defendant and that of his companion incredible, and, based upon the testimony of the State’s witnesses, concluded that his inculpatory statements had been made voluntarily. A trial court’s determination that the State’s witnesses are more credible is to be set aside on review only if it is contrary to the manifest weight of the evidence. (People v. Davis (1983), 95 Ill. 2d 1, 25, 447 N.E.2d 353, cert. denied (1983), 464 U.S. 1001, 78 L. Ed. 2d 697, 104 S. Ct. 507; People v. Aldridge (1980), 79 Ill. 2d 87, 93, 402 N.E.2d 176.) On this basis, we cannot conclude that the trial court’s determination was manifestly erroneous.

People v. Kincaid (1981), 87 Ill. 2d 107, 429 N.E.2d 508, cert. denied (1982), 455 U.S. 1024, 72 L. Ed. 2d 144, 102 S. Ct. 1726, upon which defendant relies, does not compel a contrary result; Kincaid does not adopt a per se rule that a confession induced by drugs is always inadmissible, as defendant contends. Rather, in Kincaid the court noted that “the fact that an accused is under the influence of drugs, self-administered or otherwise, when he makes a confession does not make the confession inadmissible automatically. It is still the province of the trial court to ascertain whether the accused’s will was overborne at the time the confession was made.” (87 Ill. 2d 107, 119.) Consequently, even assuming arguendo that the defendant was under the influence of heroin when he made inculpatory statements to the police, the trial court could have reasonably concluded that his will was not overcome thereby, and that his inculpatory statement was nonetheless voluntary.

3. Marital Privilege

Defendant contends that the trial court committed reversible error in admitting into evidence the testimony of defendant’s mother-in-law regarding a conversation which she overheard between the defendant and his wife. We find no error.

Velma Lee, Berry’s mother, testified that in August 1980, Drake drove up to the Berry residence while Lee was sitting on the porch, and she and Drake spoke for a while. When he drove away, Lee remained on the porch for roughly 15 to 20 minutes. She then went upstairs to the Berry apartment and into the living room. Berry’s bedroom was located off the living room; Lee seated herself 15 to 20 feet from the bedroom. While there, she overheard a conversation between Berry and the defendant, who were both in the bedroom. Over objection, Lee testified that Berry told the defendant that there was nothing between her and Drake. The defendant replied to Berry that he would “get the nigger.” Defendant argues that his conversation was protected by the marital privilege and should not have been admitted into evidence.

Section 6 of Division XIII of the Criminal Code of 1874 (Ill. Rev. Stat. 1981, ch. 38, par. 155 — 1) provides that although a husband and wife may testify for or against each other in criminal cases, “neither may testify as to any communication or admission made by either of them to the other or as to any conversation between them during marriage ***.” Defendant concedes that this privilege does not apply where the confidential conversation takes place in the presence of a third party, and cites, inter alia, People v. Simpson (1977), 68 Ill. 2d 276, 369 N.E.2d 1248, as an example of this rule. But, defendant argues that this rule does not apply where the conversation is overheard by a third party. In support, defendant asserts that “although McCormick suggests that the marital ‘privilege does not protect against the testimony of third persons who have overheard (either accidentally or by eavesdropping) an oral communication between husband and wife,’ Illinois law does not seem to have adopted this approach. McCormick, Evidence sec. 82, at 167 (1972).”

In Simpson, however, the supreme court adopted in dicta the rule enunciated by McCormick and quoted by the defendant. The court stated:

“Communications in the presence and hearing of a third party are generally not considered to be confidential communications within that privilege. (People v. Palumbo (1955), 5 Ill. 2d 409, 414-15.) It is likewise apparent that one in whose presence a communication between spouses is made may testify to that conversation, even though the witness overheard the conversation by eavesdropping. Similarly, one may testify who learns the contents of a written communication from one spouse to another by interception, or through loss or misdelivery by the custodian. McCormick, Evidence sec. 82, at 167 (2d ed. 1972).” (People v. Simpson (1977), 68 Ill. 2d 276, 280.)

Similarly, in E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 506.2, at 273 (4th ed. 1984), the authors state that “where the parties know that another person could easily with the naked ear hear a communication, no privilege would attach, for an intent to have the communication be confidential is lacking.” Further, we note the policy that privileges such as the one at issue here are to be strictly rather than broadly construed, as “evidentiary privileges of this sort exclude relevant evidence and thus work against the truthseeking function of legal proceedings.” (People v. Sanders (1983), 99 Ill. 2d 262, 270, 457 N.E.2d 1241 (holding marital privilege inapplicable to communications between parents and their children).) Based on these precedents, we conclude that the trial court properly admitted Lee’s testimony on the ground that it was not protected by the marital privilege.

4. Fair Trial

Defendant argues that he was denied his right to a fair trial because of State’s witnesses’ references to his commission of other crimes and because of prejudicial statements and cross-examination of a defense witness by the prosecuting attorneys during the course of the trial. Defendant also claims that these errors cumulatively deprived him of a fair trial. We disagree.

First, defendant claims that certain testimony by Berry and her mother, Lee, referred to other crimes the defendant had allegedly committed and that the trial court’s instructions to the jury to disregard these statements were insufficient to cure the error and provide the defendant with a fair trial. Berry testified that in August 1980 the defendant asked her, while they were in their bedroom, who the man outside the house was. She stated that when she told him she did not know, the defendant “got violent and pulled a knife out.” Following a sidebar with counsel for both the State-and the defense, the trial court struck the entire conversation from the record and instructed the jury to disregard the testimony. Later in the trial, Berry’s mother, Lee, testified that she overheard a conversation between Berry and the defendant on one occasion. She stated, inter alia, that she heard Berry tell the defendant to stop hitting her. Defense counsel’s objection was sustained and the jury told to disregard this testimony. Lee’s testimony resumed, and she again stated that she heard Berry tell the defendant to stop hitting her. Defense counsel’s objection was again sustained, and the jury told to disregard the statement. When Lee’s testimony resumed for a third time, she again stated that she heard Berry tell the defendant to stop hitting her. Defense counsel’s motion to disregard was again granted. Defendant asserts that this testimony by Berry and Lee was evidence of other crimes (battery and aggravated assault (Ill. Rev. Stat. 1981, ch. 38, pars. 12 — 2, 12 — 3)), which was irrelevant and prejudicial and suggested that he had a propensity to commit crime. Defendant argues that the resulting prejudice could not be corrected by mere jury instructions, as evidence of his guilt was closely divided.

Although evidence of other crimes is generally inadmissible if relevant only to show the defendant’s propensity to commit crime, such evidence is nevertheless admissible for a variety of other purposes and indeed is admissible “if it is relevant for any purpose other than to show the propensity to commit crime. [Citations.]” (People v. McKibbins (1983), 96 Ill. 2d 176, 182, 449 N.E.2d 821, cert. denied (1983), 464 U.S. 844, 78 L. Ed. 2d 136, 104 S. Ct. 145.) Further, if evidence is improperly introduced, a trial court’s prompt instruction to the jury to disregard such evidence cures any error in its introduction, unless the evidence can be said to be so highly prejudicial or inflammatory that a proper instruction could not have cured the error. People v. Bartall (1983), 98 Ill. 2d 294, 317, 456 N.E.2d 59.

The testimony of the defendant’s wife, Berry, regarding their conversation was properly held inadmissible by the trial court because it was a privileged marital conversation. (See Ill. Rev. Stat. 1981, ch. 38, par. 155 — 1.) The trial court promptly instructed the jury to disregard the entire conversation, and we cannot say that this evidence was so highly prejudicial and inflammatory that the instructions did not cure the error.

The testimony of the defendant’s mother-in-law, Lee, was not protected by the marital privilege, as we have already determined. The State claims that her testimony was properly admissible other-crimes evidence showing defendant’s motive to commit the crime and his criminal intent. Because the trial court determined that the evidence was inadmissible, we do not reach the question of whether such testimony was indeed admissible, but instead conclude that error, if any, was sufficiently cured by the trial court’s prompt instructions to the jury to disregard the testimony. We also note that Lee’s statements were not responsive to the questions posed and were made contrary to the prosecuting attorney’s specific instruction to the witness to refrain from revealing that portion of the conversation. See People v. Kirkwood (1959), 17 Ill. 2d 23, 31, 160 N.E.2d 766, cert. denied (1960), 363 U.S. 847, 4 L. Ed. 2d 1730, 80 S. Ct. 1623; People v. Dunning (1980), 88 Ill. App. 3d 706, 710, 410 N.E.2d 1052.

Defendant’s assertions regarding impropriety because of statements by the prosecuting attorneys center around, first, suggestions that the defendant had engaged in prior criminal conduct, and second, prejudicial and inflammatory statements made during various stages of the trial.

Defendant contends that he was denied his right to a fair trial where, even though the trial court sustained defense counsel’s objections, the assistant State’s Attorney twice suggested during cross-examination of a defense witness that the defendant had engaged in prior criminal activity by obtaining methadone through fraud or subterfuge. Specifically, defendant claims prejudicial error in the prosecuting attorney’s cross-examination of Steven McGuire, director of the clinic where the defendant registered and obtained methadone. The prosecutor, during the course of cross-examination, asked McGuire whether a person wishing to obtain methadone had to sign an affidavit to the effect that he would not obtain methadone through subterfuge or fraud. Defense counsel’s objection to the question was sustained before the witness began to answer the question. The prosecutor continued his cross-examination of the witness regarding forms and procedures at the clinic, and again asked the witness whether the clinic required a form for the methadone program which specified that the applicant would not use fraud, deception, deceit or subterfuge in order to obtain methadone. Defense counsel’s objection to the question was again sustained before the witness answered the question.

Cross-examination which creates an innuendo unsupported by evidence is improper (People v. Burbank (1972), 53 Ill. 2d 261, 271, 291 N.E.2d 161, cert. denied (1973), 412 U.S. 951, 37 L. Ed. 2d 1004, 93 S. Ct. 3017), and constitutes reversible error because of its prejudicial effect where it substantially affects the jury’s determination of a principal issue in the case. (See People v. Green (1983), 118 Ill. App. 3d 227, 235, 454 N.E.2d 792.) Although we do not condone the prosecuting attorney’s method of cross-examination in this instance, a thorough review of the evidence presented to impeach the defendant’s credibility indicates that this improper cross-examination did not have a substantial prejudicial impact on the jury’s conclusion that he was guilty of the crime charged.

With regard to various other comments by the State’s Attorneys during the course of the trial, defendant contends that during his opening statement, direct examination of Drake’s sister-in-law, and in closing argument, the prosecutor improperly referred to the fact that Drake had lived with his invalid mother and retarded brother.

In People v. Free (1983), 94 Ill. 2d 378, 447 N.E.2d 218, cert. denied (1983), 464 U.S. 844, 78 L. Ed. 2d 175, 104 S. Ct. 200, the Illinois Supreme Court recently reviewed the circumstances under which such prosecutorial references constitute reversible error and determined that references to evidence regarding a decedent’s family are proper where the evidence is properly admitted, where references thereto are incidental rather than calculated, and where they are “not presented in such a manner as to cause the jury to believe this fact to be material as to the defendant’s guilt.” 94 Ill. 2d 378, 415.

A review of the record in the case at bar establishes that the evidence presented regarding Drake’s family background was properly admitted for the purpose of identification and that the State’s references thereto were merely incidental rather than calculated to be inflammatory. (See People v. Free (1983), 94 Ill. 2d 378, 414-15.) We are unable to conclude, based on the record before us, that this evidence was presented in a manner designed to cause the jury to believe that it was material to the defendant’s guilt. As a result, we find no error or prejudice in the State’s introduction of and reference to this evidence.

Defendant also urges prejudicial error in the State’s references during its opening statement and during the trial to the fact that the defendant was unemployed at the time of the alleged offense. We find no prejudicial error in admitting this evidence, since the defendant himself testified on direct examination that he was unemployed.

Defendant also claims error in certain other comments made by the State during its opening statement. First, he argues prejudicial error in the State’s Attorney’s statement, “We have a right to protect ourselves.” Although defense counsel’s objection to this remark was sustained, the prosecuting attorney then repeated the comment; defense counsel’s objection thereto was again sustained and the jury instructed to disregard it. Second, defendant contends prejudicial error in the opening statement remark that “[t]hen on or about October 15th or 16th of 1980 Mrs. Berry in an attempt to I would say get out of the relationship of just in a — because she was frustrated, took an overdose of tablets and was taken to the hospital.”

It is improper for the prosecutor to include remarks in his opening statement which are not later proved at trial or which express his own personal opinion as to the defendant’s guilt; such improper comments are reversible error, however, only where there are reasonable grounds for believing that the jury was prejudiced by the improper remarks. (People v. Whitlow (1982), 89 Ill. 2d 322, 341, 433 N.E.2d 629, cert. denied sub nom. Gibson v. Illinois, 459 U.S. 830, 74 L. Ed. 2d 68, 103 S. Ct. 68; People v. Lampton (1982), 108 Ill. App. 3d 41, 45, 438 N.E.2d 915.) In the instant case, the prosecutor’s remarks regarding a right to self-protection were promptly stricken by the trial court and the jury admonished to disregard the statement. Further, the statement regarding Berry’s “attempted suicide” was incidental and ambiguous. Consequently, we are unable to conclude that the remarks prejudiced the jury in its determination of the defendant’s guilt.

Defendant also urges prejudicial error in the State’s remarks during closing argument. First, defendant claims that the prosecutor committed reversible error when he referred to a prior conviction of the defendant, offered for impeachment purposes, as substantive proof that the defendant was familiar with the legal system. Defense counsel’s objection to the statement was sustained. The prosecutor then attempted to remark on the reasonable inferences that could be drawn from the defendant’s conviction and incarceration in the penitentiary. Defense counsel’s objection was again sustained. Although this comment was improper (see People v. Bryant (1983), 94 Ill. 2d 514, 522, 447 N.E.2d 301), we cannot say that it substantially prejudiced the defendant. Second, defendant claims error in the State’s comment in closing argument that the defense failed to call certain witnesses. The record establishes that these comments were made in response to the defense’s remarks in closing that the State had not called these witnesses to testify. A defendant cannot claim error where the prosecutor’s remarks are in reply to and have been invited by defense counsel’s argument. See People v. Dixon (1982), 91 Ill. 2d 346, 350-51, 438 N.E.2d 180.

Lastly, defendant argues that all of these errors, when accumulated, denied him a fair trial. Where the cumulative impact may be reasonably determined to have prejudiced the jury and constituted a material factor leading to the defendant’s conviction, such errors constitute grounds for reversal. People v. Whitlow (1982), 89 Ill. 2d 322, 341, 433 N.E.2d 629.

In our view, based on the trial record as a whole, the errors committed at trial were not so prejudicial that it can be said that a fair-minded jury would have voted acquittal based upon the properly admitted evidence presented at the trial. Although we do not condone the improper conduct of the prosecuting attorneys, we are unable to conclude that their behavior was either extremély prejudicial or deliberately calculated to be inflammatory. We reach this conclusion because it is manifest here that the evidence establishing defendant’s guilt was overwhelming.

5. Jury Instructions

Defendant argues that the trial court committed reversible error in its refusal to give defendant’s tendered jury instructions on voluntary manslaughter based upon unreasonable belief in self-defense and sudden and intense passion resulting from serious provocation. Defendant claims that the testimony of two State’s witnesses, Officer James Higgins and Assistant State’s Attorney Dane Cleven, provided the evidence which would have supported such instructions. Both Higgins and Cleven testified to the inculpatory statements of the defendant during custodial interrogation. Higgins stated that the defendant said that he met Drake at approximately 11 p.m. on October 29 to discuss Drake’s involvement with the defendant’s wife. According to Higgins, the defendant stated that he said to Drake:

“You f---------around with my wife and I don’t want you doing that [; Drake said] *** listen I’ve known her longer than you have and [the defendant] said that doesn’t matter you’re f------around with her and I want you to stop. [Drake] says are you threatening me and [the defendant] says you can take it any way you want and with this [Drake] turned around toward the van opened up the door and started to reach in and [the defendant] says I pulled my gun and shot him, shot him in the back. I didn’t want to give him a chance ***.”

eleven’s testimony of the defendant’s statement was substantially similar, but he also stated that the defendant told him that Drake had not threatened him and that he did not see that Drake had a weapon. (No weapon was recovered from the scene or from the defendant.)

The defendant first argues that this testimony was sufficient to support a jury instruction for voluntary manslaughter based on unreasonable belief in self-defense. We disagree.

Voluntary manslaughter occurs where “a person *** intentionally or knowingly kills an individual [because] *** at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 *** but his belief is unreasonable.” (Ill. Rev. Stat. 1981, ch. 38, par. 9— 2(b).) An individual is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another or the commission of a forcible felony. (Ill. Rev. Stat. 1981, ch. 38, par. 7 — 1.) “[C]redible evidence in the record which would reduce murder to manslaughter entitles an accused to a manslaughter instruction.” (People v. Ward (1984), 101 Ill. 2d 443, 451, 463 N.E.2d 696.) Such instructions are appropriate even if the facts on which the defense is based are inconsistent with the defendant’s own testimony. (People v. Brachter (1976), 63 Ill. 2d 534, 540, 349 N.E.2d 31; People v. Ishmael (1984), 126 Ill. App. 3d 320, 326, 466 N.E.2d 1334.) Nevertheless, this slight credible evidence must be more than that which would permit a defendant to demand instructions based upon the merest factual reference or witness’ comments. People v. Brachter (1976), 63 Ill. 2d 534, 540-41, 349 N.E.2d 31; People v. Baggett (1983), 115 Ill. App. 3d 924, 931, 450 N.E.2d 913.

Here, the trial court concluded that there was no evidence justifying a voluntary manslaughter instruction, and we cannot say that this conclusion was manifestly erroneous. The defendant’s argument, in our view, is based upon the mere factual reference of Officer Higgins to Drake’s movement away from the defendant in order to reach into his van. According to Cleven, however, the defendant stated that Drake did not threaten him and that he did not see that Drake had a weapon. Consequently, there was nothing in the testimony from which the jury reasonably could have concluded that the defendant subjectively believed at the time that Drake was about to commit an aggressive act or that the defendant subjectively believed the use of force was necessary for his own self-defense. As a result, there was insufficient evidence in the record to justify a voluntary manslaughter instruction based on a mistaken belief in self-defense.

Defendant also claims that the trial court should have given the jury a voluntary manslaughter instruction based on sudden and intense passion resulting from serious provocation. (See Ill. Rev. Stat. 1981, ch. 38, par. 9 — 2(a).) He argues that such passion resulted from his discovery that Drake was having an adulterous relationship with his wife, Berry. We disagree.

An instruction based on discovery-of-adultery provocation “has generally been limited to instances where the parties are discovered in the act of adultery or immediately before or after such act, and the killing immediately follows such discovery. [Citations.],” (People v. Harris (1983), 123 Ill. App. 3d 899, 904, 463 N.E.2d 1030.) This general rule has been the subject of exception in limited circumstances where “the revelation of adultery was but one of a series of statements or circumstances found by the courts to be so provoking as to constitute an exception to the general rule in Illinois that words alone cannot constitute sufficient provocation to reduce a murder to voluntary manslaughter.” (123 Ill. App. 3d 899, 905.) Here, the facts do not establish that the defendant shot Drake immediately following discovery of the parties in an adulterous act. Nor do the facts indicate a series of exceptionally provoking statements or circumstances within the limited exception justifying a voluntary manslaughter instruction. As a result, we find no error in the trial court’s refusal to give a voluntary manslaughter instruction based upon discovery-of-adultery provocation.

6. Ineffective Assistance Of Counsel

Defendant’s contention of ineffective assistance of counsel is comprised of two arguments. First, defendant claims that it was reversible error for the trial court to deny him substitute counsel to argue his post-trial motion for a new trial based upon alleged errors of his trial counsel which amounted to incompetence of counsel. The defendant argued this motion before the trial court pro se; the court denied the motion. Second, defendant contends that his trial counsel’s failure to call several alibi witnesses in his defense and two impeachment witnesses to rebut testimony of certain State’s witnesses amounted to ineffective assistance of counsel. Because we conclude that the defendant is entitled to a new post-trial hearing where he will be represented by substitute counsel from other than the public defender’s office to argue his claim of incompetence of trial counsel, we do not address the defendant’s substantive claim.

In People v. Krankel (1984), 102 Ill. 2d 181, 464 N.E.2d 1045, the defendant argued that the trial court’s refusal to appoint him substitute counsel to argue his post-trial motion alleging ineffective assistance of counsel was erroneous. The supreme court agreed that it was reversible error, but determined that the appropriate remedy was a new post-trial hearing on the issue, rather than a new trial. In light of Krankel, we remand the cause to the trial court for a new hearing on defendant’s post-trial motion, wherein defendant will be represented by substitute counsel, and at which the trial court may determine whether “counsel’s representation fell below an objective standard of reasonableness [such] that counsel’s shortcomings were so serious as to ‘deprive the defendant of a fair trial’ *** [and that] ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” (People v. Albanese (1984), 104 Ill. 2d 504, 525.) If the trial court determines upon rehearing that defendant was deprived of effective assistance of counsel, the defendant should be afforded a new trial. If, however, the trial court determines that defendant was not denied effective assistance of counsel it should deny a new trial and leave standing defendant’s conviction and sentence for murder.

For the reasons stated, the cause is remanded for a new post-trial hearing on defendant’s allegation of ineffective assistance of trial counsel.

Remanded for new post-trial hearing.

LINN, P.J., and JIGANTI, J., concur.


source: Caselaw Access Project

author: JUSTICE MILLS

license: Public Domain

text:
    K MART CORPORATION, Plaintiff-Appellee, v. ILLINOIS HUMAN RIGHTS COMMISSION et al., Defendants-Appellants.
    Fourth District
    No. 4—84—0236
    Opinion filed December 28, 1984.

      Neil F. Hartigan, Attorney General, of Springfield (Imelda R. Terrazino, Assistant Attorney General, of Chicago, of counsel), for appellant Human Rights Commission.
    Charles J. Speta, of Springfield, for appellant Vickie Crider.
    Hutmacher, Rapp & Ortbal, P.C., of Quincy (James A. Rapp and Thomas J. Ortbal, of counsel), for appellee.
   JUSTICE MILLS

delivered the opinion of the court:

Issue: Employment discrimination because of race.

A complaint of civil rights violation was filed with the Human Rights Commission, alleging that K mart Corporation (K Mart) denied employment to Vickie Crider because she was black. The administrative law judge found in favor of Crider, and his findings were adopted by the Commission. The Commission ordered K Mart to employ Cri-der and pay her a sum equal to any lost wages resulting from the discriminatory action. K Mart appealed to the circuit court of Adams County, which reversed the Commission’s order. Crider and the Commission (appellants) appeal from the judgment of the circuit court.

We affirm.

Facts

A tedious recitation of the prolix facts is required.

At the hearing before the administrative law judge, evidence showed that Crider had been employed as a seasonal employee with K Mart during the Christmas seasons of 1978 and 1979. After the Christmas season of 1979, Crider, along with 12 other seasonal employees, was released because of a reduction in work force. Seven of the released employees expressed an interest in a regular position at the store if any became available during 1980. Among those expressing an interest in regular employment were Crider, Lynn Holbrook, and Ann Witsken.

In March 1980, two part-time cashier positions became available. Lorraine Bell, the personnel manager of K Mart, testified that Crider, Holbrook, and Witsken were equally qualified for these positions. Holbrook and Witsken were hired because Bell “needed someone for part-time, nights, weekends, and that is exactly what they wanted.” Bell testified she hired Witsken and Holbrook on the basis of their preference for part-time work. She believed Crider would take a part-time position but preferred full-time work. Bell stated, however, that Crider never specifically told her that she preferred full-time employment to part-time employment.

Job applications of Crider, Holbrook, and Witsken were submitted into the record. Holbrook and Witsken filled out job application forms on January 3, 1980. The forms contained a section entitled Employment Interest and Skills. Under this title was the phrase “work schedule desired” and to the right of this phrase were seven boxes labeled “full-time,” “part-time,” “days,” “evenings,” “Saturday,” “Sunday,” and “seasonal.” The only box marked on Holbrook’s application was the box labeled “part-time.” Witsken marked the boxes labeled “part-time,” “evening,” “Saturday,” “Sunday,” and “seasonal.” Both Holbrook and Witsken were white females under the age of 18 and were attending high school at the time.

Crider filled out an application form on February 14, 1980. In the “work schedule desired” section of the form she marked the boxes labeled “full-time,” “part-time,” “days,” “evenings,” “Saturday,” and “Sunday.” Crider testified that she had met with Bell to inquire about a permanent position with K Mart on February 14, 1980. She stated that Bell told her she need not fill out an application form because Crider already had an application on file. At the meeting, Bell referred Crider to another K Mart store which was hiring at the time. The application which Crider completed on February 14 was apparently an application for this other store.

Crider was questioned at the hearing with regard to her preference in a work schedule after her release from K Mart in 1979. She states, “I didn’t have no job, so I didn’t care if it was full-time or part-time.” She further testified that if a full-time job had been available, she would have preferred that to a part-time job, and if only a part-time job was available, she would have preferred a part-time job to no job.

At the hearing, Crider’s attorney introduced into evidence the separation reports which were made on Crider, Holbrook, and Witsken when the three were released after the Christmas season of 1979. One of the questions on the report stated: “Would you re-employ? Yes_ No__” Holbrook’s and Witsken’s reports have a checkmark after “Yes.” In Crider’s separation report, there is no checkmark after either “Yes” or “No.” Each report is signed by the store manager, by Lorraine Bell, and by the respective employee. Bell could not explain at the hearing why she had not answered the reemployment question on Crider’s separation report.

Additional testimony at the hearing revealed that in October 1980, approximately seven months after K Mart hired Holbrook and Witsken, it hired three more part-time employees: Cheryl Dabney, Toni Fletcher, and Joyce Frericks. Fletcher and Dabney were under 18 years of age and were in high school. Dabney and Frericks were white, and Fletcher was black.

Dabney and Fletcher had filled out job applications in September and October 1980. In the “work schedule desired” portion of the application, Dabney had marked “part-time,” “days,” “evenings,” “Saturday,” and “Sunday.” Fletcher had marked the boxes labeled “part-time,” “evenings,” “Saturday,” and “Sunday.” She also indicated that she desired 42 hours per week.

The application of the other employee, Joyce Frericks, had check-marks in both the full-time and part-time boxes. When Bell was asked why Frericks was hired for a part-time position even though she had marked full-time and part-time on the application, Bell responded: “Because she had worked for us also at one time.” Bell had testified that she preferred to hire people with previous service at K Mart.

Opinion

A reviewing court should not overturn a decision of the Human Rights Commission unless that decision is contrary to the manifest weight of the evidence. (Burnham City Hospital v. Human Rights Com. (1984), 126 Ill. App. 3d 999, 467 N.E.2d 635.) In the present case, the circuit court found that Crider had established a prima facie case of discrimination but failed to prove that K Mart’s reason for not hiring her was a pretext for discrimination.

When a complainant makes a prima facie case and the employer then articulates a legitimate business reason for its action, the burden is upon the complainant to prove that the employer intentionally discriminated against the complainant. (See Burnham City Hospital v. Human Rights Com. (1984), 126 Ill. App. 3d 999, 467 N.E.2d 635.) Intentional discrimination may be proved directly, through affirmative evidence, that race played an impermissible role in the employer’s decision, or indirectly, through proof that the employer’s proffered explanation is not to be believed. Burnham City Hospital v. Human Rights Com. (1984), 126 Ill. App. 3d 999, 467 N.E.2d 635; Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089; Lincoln v. Board of Regents (11th Cir. 1983), 697 F.2d 928.

K Mart’s personnel manager, Bell, testified that the reason Holbrook and Witsken were hired and Crider was not was because Holbrook and Witsken desired — and were only available for — part-time work, whereas Crider desired and was available for part-time or full-time work. Bell also testified as follows:

“Q. Is it also not a principle of good employment practices *** to hire persons who will remain with the employing organization for as long as the employing organization has need of them?
A. [BELL]: I think, basically.
* * *
Q. And is it not a fact that employees who are not likely to remain more than a short time are not desirable?
A. I wouldn’t say they weren’t desirable.
* * *
Q. What I am referring to is *** somebody who will come passing through town or someone who is just in need of a job, for a couple of weeks, until they can find something better?
A. (Nodding negatively.) That is not too desirable.”

The rationale for seeking applicants who only desire and are only available for part-time work is readily apparent. Such an applicant is less likely to continue seeking employment after they accept part-time work. On the other hand, one who desires and is available for full-time work is likely to continue their employment search after they accept a part-time position. An employer has a legitimate business interest in minimizing the training time, supervision, and cost associated with the rate of turnover in part-time positions.

Bell knew that Holbrook and Witsken were high school students who were only available for part-time work. Neither girl had marked the “full-time” box on the application form filled out in January. Crider, on the other hand, sought full-time employment. In her application form of February 14, 1980, she had checked “full-time” as well as “part-time” in the work schedule desired portion of the application. Bell testified that she knew Crider was seeking full-time employment. Crider herself testified that, after she was released from seasonal employment in 1979, she would have preferred full-time work to part-time work.

With evidence of a legitimate business reason for K Mart’s action, the burden shifted to Crider to prove intentional discrimination by K Mart. Virtually no direct evidence of a discriminatory intent was introduced. As for indirect evidence tending to undermine the credibility of K Mart’s articulated reason, we find it unpersuasive.

Appellants first note Bell’s testimony that Crider never told Bell she preferred full-time to part-time employment. This testimony would have been significant only if Crider’s performance had been the basis for her rejection. However, as explained above, it was not Cri-der’s preference for full-time or part-time work but rather, her desire and availability for full-time employment that was the basis for her rejection.

Appellants attribute much significance to testimony by Bell that Crider was not given “serious consideration” for the part-time positions. It is argued that this establishes a discriminatory intent. K Mart maintains that the reason Crider was not given serious consideration was because she desired full-time employment. Bell's testimony is entirely consistent with the articulated reason for Crider’s rejection. Since K Mart was seeking to fill part-time positions with applicants who only desired and were only available for part-time employment, only such applicants were given serious consideration.

Appellants also cite evidence that in October 1980 K Mart hired a white woman, Joyce Frericks, for a part-time position even though she had marked both the full-time and part-time boxes on her job application. This evidence would have a tendency to discredit K Mart’s articulated reason for rejecting Crider, since it shows that K Mart hired a part-time employee who also desired full-time employment. However, Crider failed to introduce any evidence that, at the time Frericks was hired, K Mart rejected a qualified applicant who desired only part-time employment. Consequently, the hiring of Frericks may have been out of necessity. Moreover, Bell testified that Frericks was hired because she had prior employment experience with K Mart. Bell testified that she preferred to hire people who had previously worked at K Mart. Consequently, even if K Mart had disregarded Frericks’ desire for full-time work, it could be explained on the basis that she had prior experience at K Mart. While Crider had prior experience at K Mart, so did Holbrook and Witsken. Therefore, K Mart’s hiring of Frericks does not undermine the credibility of its articulated reason for rejecting Crider.

Appellants next cite to the applications of Cheryl Dabney and Toni Fletcher as evidence that K Mart did not consider the applicant’s desire for full-time work in hiring part-time employees. Dabney and Fletcher were hired as part-time employees in the fall of 1980. Both girls marked only the part-time boxes on their job applications, but Dabney indicated on her application that she wanted as many hours as she could get and Fletcher indicated that she desired 42 hours per week. Appellants argue that both of these girls, in reality, desired full-time employment and yet were hired for part-time work.

Bell testified that both of these girls were in high school and that most high school students applying for part-time jobs did not appreciate the nature of part-time work. The fact that these two young women were in high school and had marked only the “part-time” boxes on their application forms renders it highly unlikely that they either desired, or would have been available for, full-time employment.

Appellants next argue that the separation reports of Crider, Holbrook, and Witsken constitute evidence of Lorraine Bell’s discriminatory intent. On the reports of Holbrook and Witsken, Bell had checked “Yes” in response to the reemployment question, whereas she had not checked either “Yes” or “No” on Crider’s separation report. Bell could not explain at the hearing why she failed to answer this question. K Mart argues on appeal that the failure was due to an oversight.

At the least, the reports would suggest that less care was given to the completion of Crider’s separation report than to Holbrook’s and Witsken’s. Beyond this, appellants do not explain how the failure to complete this form raises an inference of discriminatory intent on the part of Lorraine Bell. Any discriminatory intent suggested by Bell’s failure to answer this question would be inconsistent with the fact that Bell had hired Crider for seasonal employment in 1978 and 1979, with the reemployment in 1979 occurring only three months before the alleged discriminatory practice. Moreover, Crider had signed the separation report and apparently had no objection to Bell’s failure to answer the reemployment question.

The finding of the Human Rights Commission was against the manifest weight of the evidence.

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

Affirmed.

GREEN, P.J., and TRAPP, J., concur.


author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RONALD GREENSPON, Defendant-Appellee.
    First District (5th Division)
    No. 83—2421
    Opinion filed November 21, 1984.
    Rehearing denied January 25, 1985.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Cuomo, and Mary Ann Sullivan, Assistant State’s Attorneys, of counsel], for the People.
    Louis S. Elovitz, of Rotman, Medansky & Elovitz, Ltd., of Chicago, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Defendant, Ronald Greenspon, was charged with driving under the influence of alcohol (Ill. Rev. Stat. 1981, ch. 95V2, par. 11 — 501.1), and he requested an implied-consent hearing. Thereafter the trial court determined that there was no probable .cause for arresting defendant for driving under the influence of alcohol. On appeal, the State contends that the trial court’s determination that there was no probable cause to arrest defendant and that he had a right to select the kind of chemical test law enforcement officials could administer to him to determine the presence of alcohol was manifestly erroneous.

Officer Tim Russo testified that at 9 p.m. on February 4, 1983, he received a radio assignment to investigate a vehicle on railroad tracks at Lincoln and Lehigh in Morton Grove. When he arrived on the scene, he observed defendant 100 feet away from the nearest roadway, driving a vehicle northbound on railroad tracks which were straddled by the wheels of the car. The officer walked to defendant’s vehicle and ordered him to turn off the ignition and step outside the car. When defendant stepped from the car, the officer detected that defendant smelled of alcohol, that he spoke in a thick, slurred manner and that his eyes were bloodshot. The officer assisted defendant to walk as defendant stumbled to the squad car.

After the officer transported defendant to the police station, he advised him of the implied-consent warnings, and gave defendant his Miranda rights, then asked him to take a breathalyzer test. Defendant refused and asked if he could telephone his attorney. Thereafter, defendant called his attorney.

Defendant testified that at 9 p.m. on February 4, 1983, he was near railroad tracks at Lehigh and Lincoln in Morton Grove. He was proceeding home from an athletic club in Chicago where he had drunk a glass of brandy upon developing an upset stomach.

According to defendant, he drove to the Kennedy Expressway, exited at Irving Park, proceeded to Central and the intersection of Lincoln and Lehigh, where he made a right turn westbound off the pavement. When he attempted to back up, he was unsuccessful and became lodged on railroad property approximately six feet away from the road.

Since he could not back off the tracks, he proceeded forward. It was then that Officer Russo arrived and transported him to the station. There, the officer told him that he was under arrest for driving while intoxicated and asked him to take a breathalyzer test.

Defendant then asked if he could call his attorney. When the officer permitted him to do so, defendant’s attorney advised defendant not to take the breathalyzer because it was inaccurate. Defendant added that he twice asked the officer if he could take a blood test but the officer refused his request.

The State now contends that the evidence was sufficient to show that the officer had probable cause to arrest defendant for driving while under the influence of alcohol and that the trial court’s determination that defendant had the right to select which sobriety test should be administered to him was erroneous. The defendant concedes that he did not have the right to select the form of the test to be administered, but asserts that the State failed to prove that he refused to consent to the breathalyzer test.

The purposes of an implied-consent hearing are to determine whether an arrestee refused to submit to a breathalyzer test after being arrested for driving while under the influence of alcohol and whether the arresting officer had reasonable grounds to believe the arrestee was driving under the influence of alcohol to make the arrest lawful. (People v. Babych (1983), 112 Ill. App. 3d 704, 445 N.E.2d 921.) The burden of proof placed upon the State is the preponderance of the evidence standard applicable to civil proceedings. (People v. Golden (1983), 117 Ill. App. 3d 150, 453 N.E.2d 15.) The determination of whether an officer has sufficient information on which to properly act is based upon all of the facts and circumstances of each case in a manner which is not unduly technical. (People v. Bafia (1983), 112 Ill. App. 3d 710, 447 N.E.2d 1065.) A finding in favor of defendant will be reversed on review if contrary to the manifest weight of the evidence. Village of Park Forest v. Angel (1976), 37 Ill. App. 3d 746, 347 N.E.2d 278.

A person arrested for driving under the influence of alcohol does not have a right to refuse to take a breathalyzer test. (Village of Cary v. Jakubek (1984), 121 Ill. App. 3d 341, 459 N.E.2d 651.) An initial refusal to submit to an intoxication test cannot be cured by a subsequent consent even if given several minutes later. (People v. Schuberth (1983), 115 Ill. App. 3d 302, 450 N.E.2d 459.) Further, a motorist is deemed to have consented to any or all of the tests which, in the discretion of the law enforcement agency, he is requested to take, and refusal to submit to any one of these tests upon request constitutes a refusal for purposes of the statute. See People v. Kiss (1984), 122 Ill. App. 3d 1056, 462 N.E.2d 546.

Our review of the record discloses that after the arresting officer transported defendant to the police station and provided the proper admonishments, he asked defendant to take the breathalyzer test. While the officer testified that defendant refused to take the breathalyzer test and asked to telephone his attorney, defendant testified that he asked to take a blood test because when he made the telephone call, his attorney stated that the breathalyzer was inaccurate. The trial court, upon entering its finding that there was no probable cause to arrest defendant for driving under the influence of alcohol, concluded that defendant had the right to select the kind of sobriety test law enforcement authorities administer to him and that his refusal to take the breathalyzer was not improper.

We disagree with this ruling. First, the evidence was sufficient to establish that there was probable cause to arrest defendant for driving while under the influence of alcohol. The officer observed him driving an automobile on railroad tracks with the wheels of his vehicle straddling the rails. When the officer confronted him, defendant’s eyes were bloodshot, his speech was slurred and he smelled of alcohol. Once he exited his automobile, he was unable to walk except with the assistance of the officer. This undisputed testimony constituted a reasonable ground for defendant’s arrest.

Further, his refusal to comply with the officer’s request to take the breathalyzer test constituted a refusal to take any of the sobriety tests. A contrary determination would allow an offender to defeat the purpose of the statute by demanding a test that was unavailable and would, concomitantly, fail to advance the offender’s due process rights. See People v. Kiss (1984), 122 Ill. App. 3d 1056, 462 N.E.2d 546.

For the reasons stated, we conclude that the evidence was sufficient to establish that there was probable cause to arrest defendant and that the trial court’s determination that the defendant had the right to select the kind of sobriety test law officials may administer was manifestly erroneous.

Accordingly, the order entered by the circuit court of Cook County is reversed and the matter is remanded for further proceedings.

Reversed and remanded.

MEJDA, P.J., and SULLIVAN, J., concur.


author: PRESIDING JUSTICE STOUDER JUSTICE BARRY,

text:
    GERALD JUNKER, Plaintiff-Appellee, v. ALBERT ZIEGLER et al., Defendant-Appellants.
    Third District
    Nos. 3—83—0376, 3—83—0380 cons.
    Opinion filed January 3, 1985.

      BARRY, J., dissenting.
    Robert D. Jackson and Jeffrey W. Jackson, both of Westervelt,- Johnson, Nicoll & Keller, of Peoria, for appellant Albert Ziegler.
    William R. Kohlhase, Bret Babcock, and Robert E. Geiger, all of Davis & Morgan, of Peoria, for appellant Paul Bush.
    Frederick W. Allen, of Allen, Clark, Cullinan & Harn, Ltd., of Peoria, for appellee.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

In a personal injury action to recover for the loss of sight in one eye resulting from a hunting accident, plaintiff Gerald Junker was found by the jury to have incurred damages totalling $112,000, but the award to plaintiff was reduced to $39,200 by a further finding that plaintiff’s negligence was 65% .of the proximate cause of the damages. The trial court granted plaintiff’s post-trial motion for a new trial on all issues on the ground that the finding which attributed 65% of the negligence to plaintiff was contrary to the manifest weight of the evidence. This court granted leave to appeal from the new trial order to defendants Albert Ziegler, who fired the shot which struck plaintiff in the eye, and Paul Bush, who owned the hunting club where the accident occurred.

Some recitation of the facts surrounding the accident is necessary to an understanding of the issues raised by this appeal. Bush is the owner and operator of a commercial hunting club near Marion. The club has four blinds or pits on its premises from which customers can shoot geese. Guides are employed to go with customers to the pits and to signal when to shoot at approaching geese. The guides have walkie-talkies to communicate with Bush or his sons at their pickup truck whenever a hunter has shot his quota of two geese and is ready to leave the pit. The customers are transported to and from the pits by the truck.

On November 3, 1980, Junker and his son were hunting at the club. They were assigned to a blind known as the pond pit along with a guide, while defendant Ziegler and a friend were shooting from the south pit, which was located 20 yards west and 200 yards south of the pond pit. As a goose was approaching from the north, Ziegler fired a shot with his 12-gauge shotgun, using three-inch magnum shells. Junker was watching the goose approach, heard the shot, and continued to observe the goose as it descended. It appeared to touch the ground but to continue moving along or just above the ground, until it was between the two pits. At the direction of his guide, Ziegler then fired another shot at the goose. Junker saw the feathers of the goose ruffle up and then felt a sharp pain in his left eye. It is not disputed that a pellet from Ziegler’s shotgun struck plaintiff in the eye, tearing loose part of the iris and causing permanent blindness in that eye.

At trial before a jury, Bush’s testimony indicated that the shotgun and ammunition used by Ziegler had a range of 250 to 275 yards. Bush and Ziegler were experienced hunters who knew the range of the shells and who knew that a hunter should never fire a gun in the direction of another person who might possibly be within range. Bush knew that the distance between the two pits was 200 yards and that pellets from guns fired in the south pit sometimes struck persons in the pond pit, since he himself had experienced being sprayed with pellets. Bush had not instructed the guides to prohibit shooting at birds on or near the ground or shooting in the direction of another pit. Shooting was permitted in all directions. Hunters normally stood up in the pit until the guide told them to get down. Junker was also an experienced hunter. He admitted at trial that he knew he was within range of the south pit; yet, he watched the goose descend and land- between the two pits and made no effort to crouch down or turn his back.

Plaintiff filed suit against Ziegler for negligently firing a shotgun and injuring plaintiff, and he sued Bush for negligently constructing and operating his hunting club and for failing to warn customers not to shoot toward other occupied pits. Ziegler filed a counterclaim against Bush for contribution. As previously indicated, the jury returned a verdict finding plaintiff’s damages to be $112,000, but, under the doctrine of comparative negligence, the jury attributed 65% of the damage to plaintiff and 35% to the two defendants. As between the defendants, the jury apportioned 71% of the negligence to Bush and 29% to Ziegler.

The sole issue before this court is whether the trial court erred in ordering a new trial on the grounds that the jury’s finding that plaintiff was 65% contributorily negligent was against the manifest weight of the evidence. We hold that the trial court should not have granted a new trial.

By granting a new trial the trial court acknowledged that plaintiff was guilty of some negligence. Had this not been the case, the trial judge would have directed a verdict in favor of plaintiff for the full award of damages. (See Mileur v. Briggerman (1982), 110 Ill. App. 3d 721, 442 N.E.2d 1356.) Because the judge granted a new trial rather than direct a verdict, we interpret the court’s action to mean that the trial court found the jrny’s apportionment of damages improper.

The standard to be applied by a trial judge in granting a new trial on the apportionment of damages should be no different than the standard applied in granting a new trial as to total damages. The general rule governing when a verdict may be overturned as to total damages is when the amount of the verdict bears no reasonable relationship to the loss suffered.

In other words, the verdict must be within the range of the evidence. In this case, the defendants’ theory and evidence clearly support the jury’s conclusion that plaintiff was negligent. We also believe that 65% negligence bears a reasonable relationship to the loss suffered. The Illinois Supreme Court has often cautioned that a verdict should not be set aside merely because different conclusions could be drawn or because the judges feel that other results are more reasonable. (See Finley v. New York Central R.R. Co. (1960), 19 Ill. 2d 428, 167 N.E.2d 212; Jardine v. Rubloff (1978), 73 Ill. 2d 31, 382 N.E.2d 232.) Clearly, a jury should be granted as wide a latitude in apportioning damages as it is in determining total damages and other aspects of liability in negligence cases.

The defendants’ theory developed at trial was that plaintiff was negligent by continuing to stand erect facing in the direction of defendant Ziegler’s blind when he knew he was within range. The evidence elicited at trial supports defendants’ theory — plaintiff himself testified that he knew he was within range and that he knew if defendant Ziegler shot in his direction the shot could injure his eye. Therefore, we find that there was sufficient evidence to support a finding by the jury that plaintiff was 65% negligent.

Plaintiff also argues that he was not negligent as a matter of law, based largely upon a case recently decided by the Fifth District, Mileur v. Briggerman (1982), 110 Ill. App. 3d 721, 442 N.E.2d 1356. In Mileur the court directed a verdict in favor of plaintiffs based upon the fact that the plaintiff had no reason to anticipate that defendant would mistake him for a turkey. The facts in the instant case are clearly different. Here plaintiff knew defendant Ziegler was shooting, he knew he was shooting at the goose which had landed between their pits and he knew he was within range of Ziegler’s pit. Merely because plaintiff did not expect Ziegler to violate a cardinal rule of hunting does not equate this situation with the facts present in Mileur. In Mileur, the plaintiff was shot from behind by another hunter of whose presence plaintiff was unaware. Therefore, the Mi-leur case is readily distinguishable. Further, as previously mentioned, there is no indication that this trial court found plaintiff innocent of any negligence as a matter of law.

We, therefore, reverse the decision of the circuit court of Peoria County granting a new trial and remand this case with instructions to enter a verdict consistent with the jury’s verdict.

Reversed and remanded.

SCOTT, J., concurs.

JUSTICE BARRY,

dissenting:

The majority has adopted the view of the evidence advanced by defendants that plaintiff was negligent in that he continued to stand erect in the pit, looking at the goose after the first shot was fired in his direction by Ziegler and while the goose was landing in between the two pits. As defendants describe these events, the first shot came close to plaintiff, and yet plaintiff continued to gaze in the direction of the gun and continued to stand in the line of fire when he should have taken reasonable steps to protect himself by crouching down in the pit or at least by turning his head away from the direction of the gunfire.

My reading of the report of proceedings indicates that this scenario is not supported by the evidence in the record. According to the witnesses at trial, the first shot was fired at the goose in the air and was directed off to the side of the pit in which plaintiff was standing, not at the plaintiff’s pit. As the goose came in for its landing, plaintiff remained where he had been, and, by my view, where he had a right to be, watching the approaching goose. Plaintiff had no reason to expect that a hunter, being directed by a trained guide, would violate one of the basic rules of hunting safety by firing at a low level trajectory in the direction of other persons.

Contrary to the majority, I believe the principles of the Mileur case are applicable to the case at bar. In Mileur v. Briggerman (1982), 110 Ill. App. 3d 721, 442 N.E.2d 1356, a turkey hunter was mistaken for a turkey and was shot by another hunter. The plaintiff had testified that he did not see the other hunter, and that when he hunted, he kept a good lookout for turkeys, not other hunters. The jury found plaintiff’s negligence to have amounted to 50% of the cause of the accident. The appellate court reversed and remanded for a new trial on the issue of damages, ruling that the defendant was negligent as a matter of law and also that plaintiff was free from contributory negligence as a matter of law and, therefore, that the trial court erred in failing to enter a judgment notwithstanding the verdict for the plaintiff as to liability and freedom from contributory fault. In discussing the defendant’s contention that plaintiff was negligent in failing to keep a proper lookout for other hunters, the court stated:

“A review of the record indicates that defendant mistakenly places responsibility for preventing the accident on the plaintiff. It was, after all, defendant who mistook the six foot three inch, 250 pound plaintiff for a turkey and fired the shot injuring him. Plaintiff was not required to anticipate that another hunter would mistake him for a turkey.” 110 Ill. App. 3d 721, 725, 442 N.E.2d 1356.

The law does not require plaintiff to anticipate the negligence of others, but rather he may assume that others will not be negligent. (Johnston v. V.H. Flannery Building Materials, Inc. (1955), 6 Ill. App. 2d 35, 126 N.E.2d 510; Geraghty v. Burr Oak Lanes, Inc. (1955), 5 Ill. 2d 153, 125 N.E.2d 47.) To find plaintiff negligent under the facts of the instant case would, in effect, impose a duty upon him to anticipate another hunter shooting at him. Such a requirement would be erroneous. Here, defendants Ziegler and/or Bush failed to observe the standard rules of hunting safety, and they are, therefore, responsible for plaintiff’s injury. I would hold that plaintiff was free from negligence as a matter of law and that a judgment notwithstanding the verdict should have been entered in plaintiff’s favor.

As a consequence of my view that the liability rests upon one or both defendants, but not plaintiff, I would order a new trial solely on the issues of damages.


author: JUSTICE JOHNSON JUSTICE ROMITI,

text:
    LINDSAY STALLMAN, by her Father and Next Friend, Mark Stallman, Plaintiff-Appellant, v. CLARENCE R. YOUNGQUIST, Defendant (Bari Stallman, Defendant-Appellee).
    First District (4th Division)
    No. 83—1987
    Opinion filed December 20, 1984.
    ROMITI, J., dissenting.
    George B. Collins and Sandra L. Hertzberg, both of Collins & Amos, of Chicago, for appellant.
    Jacobs, Williams & Montgomery, of Chicago (Barry L. Kroll, Lawrence K. Rynning, and Lloyd E. Williams, Jr., of counsel), for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Lindsay Stallman, by her father and next friend, Mark Stallman, appeals an order of the trial court dismissing count II of her second amended complaint. She raises the following issues for review: (1) whether the trial court’s dismissal of count II of her complaint was proper and (2) whether her cause of action in negligence (count II) should be barred by application of the parent-child tort immunity rule.

We reverse and remand.

On April 27, 1983, plaintiff filed her second amended complaint alleging that she is a minor and was born on January 25, 1982. On October 7, 1981, at 4:46 p.m., her mother, Bari Stallman, was involved in an automobile collision with defendant, Clarence Youngquist. In count I, plaintiff alleged that Youngquist was negligent in driving his car and that as a result of the accident she suffered serious injuries which became apparent at her birth. She asked for $25,000 in damages.

In count II, plaintiff alleged that her mother was negligent; that at the time of the accident, she (plaintiff) was not a person because her mother could have had a legal abortion; and that her (plaintiff’s) injuries were outside the family relationship, since she was not yet part of a family. Plaintiff asked damages of $25,000. In count III, plaintiff alleged that her mother’s acts were wilful and wanton, and she asked for damages of $25,000.

Defendant, Bari Stallman, moved to dismiss count II on a claim of parent-child tort immunity. On August 4, 1983, the trial court dismissed count II with prejudice and found that parent-child tort immunity applied because plaintiff was a member of the Stallman family at the time of the accident. Plaintiff appeals.

Plaintiff argues that Illinois courts have created certain exceptions to the judicially created parent-child tort immunity doctrine. For example, the doctrine has: not been applied where the negligence complained of arose outside the family relationship and remained unconnected with family purposes and objectives. (Cummings v. Jackson (1978), 57 Ill. App. 3d 68, 372 N.E.2d 1127.) Where the doctrine has been applied, the negligence was directly connected to the family. The doctrine has never been applied in a situation similar to the instant case. Plaintiff argues that it is a total legal fiction to hold that when she was a five-month fetus, she was engaged in a family activity. She was incapable of engaging in any activity directly connected with a family purpose or objective. Plaintiff insists that she met her burden of pleading facts sufficient to withstand application of the parent-child tort immunity rule. Plaintiff concludes that the trial court improperly held that she was a member of the Stallman family for purposes of the immunity rule.

Plaintiff also contends that a nonviable fetus is not a legal person. Defendant Stallman could have legally aborted plaintiff at the time of the accident.

Defendant Stallman responds that no Illinois decision has recognized an exception to the parent-child immunity doctrine where a child happens to be in útero at the time of the mother’s alleged negligence. She cites Hogan v. Hogan (1982), 106 Ill. App. 3d 104, 435 N.E.2d 770, Eisele v. Tenuta (1980), 83 Ill. App. 3d 799, 404 N.E.2d 349, and Johnson v. Myers (1972), 2 Ill. App. 3d 844, 277 N.E.2d 778, in support of the view that the operation of an automobile with a family member as a passenger is within the scope of the family relationship. Defendant also cites Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 367 N.E.2d 1250, for the recently adopted rule that a child born with injuries sustained while it was a developing fetus may maintain an action for damages.

Defendant Stallman claims that public policy is clear in recognizing a fetus to have the status of a person within the womb from the time of conception at least with respect to tort actions by or on behalf of the fetus subsequently born alive. Defendant contends that it is unreasonable to believe that a fetus is not a child of her mother as she develops in the womb, and defendant concludes that the driving of an automobile to a restaurant (as she- did in the instant case) is within the scope of the family relationship with plaintiff in the status of passenger in her mother’s car.

Defendant Stallman argues that recognition of the parent-child tort immunity doctrine is supported by the public policy of promoting family harmony and preventing intrafamily strife. Defendant responds to plaintiff’s other arguments, stating that any right she may have had to procure an abortion at the time of the accident is irrelevant and that a family relationship exists between a fetus in útero and her mother.

Next, plaintiff argues that the parent-child tort immunity doctrine should not be applied to the instant case. Recently Hlinois courts have examined and reinterpreted interspousal and parent-child tort immunity in contribution and uninsured motorist cases. Plaintiff claims such interpretations may indicate a growing desire to abandon those doctrines. The immunity doctrine has been abandoned in a majority of jurisdictions because it no longer serves the purpose for which it was intended and because the results of its application are uneven and unjust. The doctrine denies a party access to the court solely because of his or her relationship to another party. It no longer serves its purpose of preserving family harmony and ensuring justice where it disqualifies an entire class of minors.

Plaintiff further argues that the doctrine is hollow where defendant parent has insurance coverage such that the sought-after litigation is not between the child and parent, but between the child and the parent’s insurance company. The trial judge and jury are capable of considering the possibility of collusion between parent and child. Finally, plaintiff argues that since the doctrine is court-made, the court has a duty to criticize, re-exa;„iine and modify it when such action is justified by public policy. It is unjust that acts considered tor-tious between strangers should be privileged because of the relationship between plaintiff and defendant.

Defendant Stallman responds that as a matter of public policy a child should not be permitted to sue her mother for prenatal injuries arising out of conduct which occurs during pregnancy. A mother should not be subject to suit because of involvement in legitimate activities. Such judicial involvement would not promote parenthood. Additionally, defendant claims that a mother cannot commit a tort against her child in útero because she cannot commit a tort against herself. She and the child are in a unitary relationship. Defendant contends that for the court to rule that the immunity doctrine did not apply would result in burdensome potential liability on expectant mothers. Finally, defendant states that the possibility of liability insurance is not a basis for making an exception to the parent-child tort immunity doctrine.

We disagree with plaintiff’s contention that she was not a member of the family at the time the alleged negligence occurred. In our opinion, it is illogical for plaintiff to argue that as a nonviable fetus, she was not a legal person and therefore not a member of the Stallman family, and yet sue her mother for injuries she sustained when she was a nonviable fetus. At the time of her prenatal injuries, plaintiff was a legal person for purposes of maintaining, after her birth, a lawsuit (see Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 367 N.E.2d 1250), and she was also a member of the Stallman family.

We do agree with plaintiff, however, that the parent-child tort immunity doctrine should not be applied to this case so as to defeat plaintiff’s cause of action for negligence against her mother.

Illinois first recognized the doctrine of parent-child tort immunity in Foley v. Foley (1895), 61 Ill. App. 577, 580, in which the appellate court stated that a child cannot maintain an action for damages against a parent on account of maltreatment. This rule was based on the public policy that a child shall not contest with the parent the parent’s right to govern the child. (61 Ill. App. 577, 579.) For an analysis of the parent-child tort immunity doctrine, see Annot., 6 A.L.R.4th 1066 (1981). For a scholarly analysis of the issue raised in this appeal and for historical background, see Beal, “Can I Sue Mommy?” An Analysis of a Woman’s Tort Liability For Prenatal Injuries to Her Child Born Alive, 21 San Diego L. Rev. 325 (1984).

A trend away from parent-child tort immunity has developed in recent years. The Wisconsin Supreme Court was the first to abolish the general rule of nonliability in 1963, while recognizing a general duty of a parent to a child and while retaining two limited immunity exceptions. (See Goller v. White (1963), 20 Wis. 2d 402, 122 N.W.2d 193.) In Illinois, the immunity doctrine was eroded by Schenk v. Schenk (1968), 100 Ill. App. 2d 199, 241 N.E.2d 12.

In Schenk, a father sued his minor daughter for injuries sustained when she negligently drove into him. The trial court sustained a motion to dismiss the father’s complaint. The appellate court defined the determinative issue as whether in a parent-child relationship the immunity rule should bar recovery for conduct wholly unrelated to the objectives or purposes of the family itself. (100 Ill. App. 2d 199, 204.) The appellate court stated as follows:

“[S]ome jurisdictions have held that the immunity rule has not been applied to property rights, contract rights, an emancipated child, wrongful death actions, suits between brothers and sisters, a stepfather, an adoptive parent, or a grandparent, to cases where the child is injured in the course of a business rather than a personal activity, and in suits involving willful, wanton, intentional or criminal conduct. If harmony and unity in the family is the public policy protecting the rule, it would seem to be present in these areas. ***. From these observations, it is easy to conclude that the justification for the rule based on harmony, cooperation and family affection and its preservation is an excuse rather than a solid foundation for the rule. It would thus follow that since the reason for the rule is nonexistent, the rule itself should be interred. We do not reach this result.
*** [Tjhere are no impelling reasons for eroding or emasculating the family immunity rule for conduct of either parent or child arising out of the family relationship and directly connected with the family purposes and objectives in those cases where it may be said that the carelessness, inadvertence or negligence is but the product of the hazards incident to inter-family living and common to every family. In such instances the immunity doctrine is neither unjust, unreasonable nor without a sound and solid foundation. ***.
The statement of these principles, however, does not preclude a holding that the complaint in the case at bar states a cause of action. As stated in Cooley on Torts, 2nd ed, p 276: ‘Where the child is injured in his own property or person redress has no necessary connection with the family relation.’ The facts here charged occurred during the exercise by both the father and the child of his individual rights on the public streets and with no direct connection with the family relationship. It seems thus clear to us that reason and justice require that the immunity rule should not stand as an insuperable bar to redress for injuries occasioned by the exercise of those rights.” (Schenk v. Schenk (1968), 100 Ill. App. 2d 199, 204-06.)

In our opinion, plaintiff should be given the opportunity to prove whether defendant Stallman’s act of driving to a restaurant was not an act arising out of the family relationship and directly connected with family purposes and objectives.

Relying on Schenk, Illinois courts have tended to restrict rather than expand the application of the parent-child tort immunity doctrine. The doctrine has barred a cause of action where a minor alleged that his father negligently permitted a loose stairway rug to be used in the home (Cosmopolitan National Bank v. Heap (1970), 128 Ill. App. 2d 165, 262 N.E.2d 826); where a minor injured by his father’s negligent operation of a car did not allege that his injury arose as a result of activity outside the family relationship (Illinois National Bank & Trust Co. v. Turner (1980), 83 Ill. App. 3d 234, 403 N.E.2d 1256); where a parent was injured in a car her son was driving to a college campus (Eisele v. Tenuta (1980), 83 Ill. App. 3d 799, 404 N.E.2d 349); where a minor was injured while her mother was driving her home from a piano lesson (Hogan v. Hogan (1982), 106 Ill. App. 3d 104, 435 N.E.2d 770); and where a minor was injured in a car driven by her father after he had picked her up from work (Wilkosz v. Wilkosz (1984), 124 Ill. App. 3d 904, 464 N.E.2d 1232).

Illinois courts have held that the immunity doctrine was not a bar to a cause of action where minor children sued a deceased parent (Johnson v. Myers (1972), 2 Ill. App. 3d 844, 277 N.E.2d 778); where a minor sued his grandparents (Gulledge v. Gulledge (1977), 51 Ill. App. 3d 972, 367 N.E.2d 429; Busillo v. Hetzel (1978), 58 Ill. App. 3d 682, 374 N.E.2d 1090); where a minor alleged that she was injured as a result of her parent’s failure to trim trees which was a violation of a city ordinance (Cummings v. Jackson (1978), 57 Ill. App. 3d 68, 372 N.E.2d 1127); and where a third party sought contribution from the parents of an injured minor alleging that their negligence contributed to the minor’s injuries (Larson v. Buschkamp (1982), 105 Ill. App. 3d 965, 435 N.E.2d 221; Moon v. Thompson (1984), 127 Ill. App. 3d 657, 469 N.E.2d 365). Recently, the appellate court has ruled that a party may maintain an action for contribution against parents of an injured minor child based on negligent supervision of the child. (Hartigan v. Beery (1984), 128 Ill. App. 3d 195.) Additionally, in Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 178-79, 347 N.E.2d 705, 712, three dissenting justices noted that our supreme court has never decided the question of whether a parent is liable for injuries to his child absent wilful and wanton misconduct.

The parent-child tort immunity doctrine was created by the courts (Foley v. Foley (1895), 61 Ill. App. 577), and the court is free to modify any doctrine which it creates (Larson v. Buschkamp (1982), 105 Ill. App. 3d 965, 967, 435 N.E.2d 221, 223). In Larson, the court stated that “[w]hile *** in Illinois the courts continue generally to give vitality to the parent-child tort immunity doctrine as a consequence of public policy considerations favoring the promotion of family harmony and the prevention of intrafamily litigation and strife [citation], the rule has been modified where the purpose of the doctrine will not be served.” 105 Ill. App. 3d 965, 969.

Defendant Stallman argues that as a matter of public policy a child should not be permitted to sue her mother for prenatal injuries. Such liability is potentially burdensome and would not promote parenthood. As noted above, Illinois courts in several cases have already restricted the application of the immunity doctrine and sanctioned direct parent-child tort suits in certain circumstances. (Larson v. Buschkamp (1982), 105 Ill. App. 3d 965, 970.) Other jurisdictions which have abolished the parent-child tort immunity doctrine have met the family disruption argument by reasoning that the injury itself and not the consequent suit is the factor which may upset the family unit. The widespread use of liability insurance mitigates against the possibility that such suits disrupt the domestic peace or deplete the family’s financial resources. (Larson v. Buschkamp (1982), 105 Ill. App. 3d 965, 970.) In our opinion, the right of the child to be compensated for her injuries is not outweighed by considerations of public policy raised by defendant.

In conclusion, we hold that the trial court erred in dismissing count II of plaintiff’s complaint, which stated a cause of action in negligence against her mother.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause is remanded.

Reversed and remanded.

LINN, P.J., concurs.

JUSTICE ROMITI,

dissenting:

For two reasons, I respectfully dissent. First, I am unable to discern how the parent-child tort immunity doctrine does not apply to the facts of the instant case. Parental immunity is founded on the firm principle that the law should not intrude into parent-child interactions which occur in the context of and arise from the family relationship. (See, e.g., Hogan v. Hogan (1982), 106 Ill. App. 3d 104, 435 N.E.2d 770; Illinois National Bank & Trust Co. v. Turner (1980), 83 Ill. App. 3d 234, 403 N.E.2d 1256.) As the Illinois Supreme Court recently observed, “it is clear that public policy demands the development and the preservation of family relations. Exemplary of that policy in the tort context is the rule prohibiting suits by children against their parents for negligence. [Citations.]” (Cockrum v. Baumgartner (1983), 95 Ill. 2d 193, 201, 447 N.E.2d 385.) The doctrine has long been applied to a wide range of encounters between parents and their children of a variety of ages, of which the more common has been the family excursion in the family car. (E.g., Eisele v. Tenuta (1980), 83 Ill. App. 3d 799, 404 N.E.2d 349; Johnson v. Myers (1972), 2 Ill. App. 3d 844, 277 N.E.2d 778.) I fail to perceive the distinction between these cases, where the doctrine was applied, and the facts of the case at bar, where the doctrine is not applied. Schenck v. Schenck (1968), 100 Ill. App. 2d 199, 241 N.E.2d 12, relied upon by the majority is, in my opinion, distinguishable from the instant case, since there are no facts here to show that the accident occurred “during the exercise by both the [mother] and the child of [her] individual rights on the public streets and with no direct connection to the family relationship.” (100 Ill. App. 2d 199, 206.) Moreover, I am unable to discern how the plaintiff here will be able to prove upon remand that a mother’s driving her child (or children) to eat dinner at a restaurant does not constitute a “family purpose.”

Second, by declining to apply the doctrine of parental immunity to the facts of the instant case, the majority decision may result in more than a simple refusal to apply the doctrine to a particular fact situation. Although it has repeatedly been said that parental immunity “is a court-formulated rule which is not based on an absence of duty but upon immunity from suit” (Johnson v. Myers (1972), 2 Ill. App. 3d 844, 845, 277 N.E.2d 778), refusal to apply the doctrine may nonetheless lead to recognition of new causes of action. In the context of the case at bar, if a mother is no longer immune from liability to her child for negligent acts causing prenatal injuries to that child, it is but a short step to impose a specific or particular duty upon the mother regarding the care of an unborn child. This, in turn, would require a determination of the scope of her duty to that child, when the duty arises (at conception, upon viability, upon birth), and how breach of that duty is to be determined. The abolition of the doctrine of parental immunity in other jurisdictions, even in limited circumstances, has created a host of unresolved issues and conflicting results; by far the knottiest of such questions has been a mother’s liability for prenatal injury to her child. (See Beal, “Can I Sue Mommy?” An Analysis of a Woman’s Tort Liability for Prenatal Injuries to Her Child Born Alive, 21 San Diego L. Rev. 325 (1984).) In my view, if the parent-child tort immunity doctrine is to be discarded or even further restricted as it applies to actions directly between the parent and child, it should be done forthrightly and not by a continuous chipping away at the doctrine; then the responsibilities and duties of parents to their children and to third parties could be established according to a comprehensive framework, of which an integral part would be a mother’s liability for prenatal injuries.

      I note parenthetically that the mother in the case at bar may not be immune from liability to the driver of the other automobile also involved in the accident which allegedly caused the child’s injuries. The accident here occurred after March 1, 1978, and thus falls within the purview of the Contribution Among Joint Tortfeasors Act. (Ill. Rev. Stat. 1983, ch. 70, par. 301.) Therefore, the driver of the other automobile, also a defendant in this action, may maintain a suit in contribution against the mother, alleging that her conduct was also a proximate cause of the child’s injury. See Larson v. Buschkamp (1982), 105 Ill. App. 3d 965, 435 N.E.2d 221.