author: JUSTICE SCOTT

text:
    ROSE MARIE SEWARD et al., Plaintiffs-Appellants and Cross-Appellees, v. HOWARD E. GRIFFIN et al., Defendants-Appellees and Cross-Appellants.
    Third District
    Nos. 82—377, 82—374, 82—375 cons.
    Opinion filed June 10, 1983.
    Rehearing denied August 31, 1983.

      Jay H. Janssen and Jerelyn D. Maher, both of Peoria, for appellants.
    Roland N. Litter st, of Covey and Litter st, of Peoria, for appellee Larry Coons.
    Robert V. Dewey, Jr., of Heyl, Royster, Voelker & Allen, of Peoria, for appellee Cook at Eighth, Inc.
    David A. Nicoll and Daniel L. Johns, both of Westervelt, Johnson, Nicoll & Keller, of Peoria, for appellees Volkswagen of America, Inc., and Volkswagenwerk A.G.
   JUSTICE SCOTT

delivered the opinion of the court:

On September 15, 1976, in Havana, Illinois, Rose Seward and her daughter Gwen were the driver and passenger in a 1970 Volkswagen van that was struck by an Oldsmobile driven by Howard Griffin. Rose Seward and Gwen Seward received serious injuries as a result of the collision. Suit was filed by Rose Seward individually and by Robert Seward as parent and next friend of Gwen Seward against numerous defendants on numerous theories. Suit was filed against Howard Griffin, who died of causes unrelated to the accident here in question before the matter came to trial. Suit was filed against Cook at Eighth, Inc., under the Dramshop Act, alleging that the corporate defendant sold alcoholic liquor to the defendant Griffin immediately before the collision. Suit was filed against Larry Coons, alleging that Coons negligently entrusted the Oldsmobile to the defendant Griffin. Finally, suit was brought against Volkswagen of America, Inc., and Volkswagenwerk A.G. alleging that the design of the plaintiffs van was unreasonably dangerous.

After an extended trial, a Peoria County jury entered a judgment against the defendant Coons, and he appeals. The jury entered a judgment against the defendant dramshop, and it appeals. The jury entered a judgment against the defendants Volkswagen for Rose Seward, and Seward appeals, urging that the award of damages was inadequate and that errors tainted the jury’s verdict, while the defendants Volkswagen cross-appeal urging that a judgment non obstante verdieto should have been granted in the circuit court negating any recovery for Rose Seward; in the alternative, the defendants Volkswagen pray for an affirmance of the verdict in favor of Rose Seward, or if a new trial is ordered, then a trial on all issues, not just on the issue of damages. Lastly, the jury entered a verdict for the defendants Volkswagen and against Robert Seward on behalf of his daughter Gwen, and they appeal. The issues raised on each appeal will be considered separately.

LARRY COONS APPEAL

On September 13, 1976, Larry Coons owned and operated a small used car sales business in Mason County, Illinois, known as Larry’s Auto Sales. At about 1 p.m. that day, Howard Griffin came to the used car lot and negotiated with Larry Coons for the trade of a Cadillac he was driving for a 1968 Oldsmobile.

According to George Morrell, an employee of Larry Coons, an agreement to trade the two cars “even up” was reached, the assignment of title was signed by both Howard Griffin and Larry Coons in Morrell’s presence as a notary public, and the State sales tax forms were made out and signed by both parties. Thereafter, Griffin took the license plates off the Cadillac, put them on the Oldsmobile, left the Cadillac on the lot, and drove away in the Oldsmobile.

A different version of events was testified to by Howard Griffin’s ex-wife, Cathy Sue. According to Mrs. Griffin, on September 13, 1976, she and Griffin were on the lot twice. Larry Coons offered the Oldsmobile to Griffin for sale and offered to let Griffin try out the car. The first time, Griffin drove the car to Kilbourne, Illinois, with Cathy Sue driving the Cadillac. They returned the car to Coons’ lot about an hour and a half later. At this second meeting, Mrs. Griffin told Coons that it was not a fair trade and that Howard Griffin could not trade since she owned the Cadillac and she would not trade her car. Mrs. Griffin further testified that on this occasion she told the defendant Coons that Howard Griffin had not had a drivers’ license for at least 15 years due to his driving record and that he had been to Vandalia many times because of drunken driving. It was Mrs. Griffin’s recollection that no sale and purchase took place on September 13, 1976, nor could such a transaction have been consummated without her consent. She testified that Larry Coons had knowledge of her interest in the Cadillac. Finally, when the executed assignment of title was examined subsequent to the September 15 collision, she asserted that the purported signature of Howard Griffin on the assignment was a forgery.

Two days later on September 15, 1976, it was the same 1968 Oldsmobile that the defendant Griffin was driving when he pulled into the passing lane and struck the plaintiff’s van head on. On appeal, the defendant Coons argues that the theory of negligent entrustment should not apply in the context of a seller and purchaser. In so contending, the defendant would have this court adopt the recollections of George Morrell while rejecting the recollections of Cathy Sue Griffin. This is contrary to the result reached by the Peoria County jury, in that, they responded to a special interrogatory by finding that no sale took place. It is axiomatic that questions of credibility and believability of witnesses are within the province of the jury, and while there would appear to be some inconsistencies in the testimony of Mrs. Griffin, we cannot say that those inconsistencies rendered her testimony so suspect that it could not support the jury’s finding on the special interrogatory.

Even if no sale and purchase took place, the defendant Coons believes that liability should not attach in this situation, that is in this commercial setting where the Oldsmobile was entrusted to a potential purchaser. It is correct to say that an automobile dealer is not liable for the negligence of a prospective purchaser who was allowed to drive the dealer’s car for a trial or demonstration. (Mosby v. Kimball (1931), 345 Ill. 420, 178 N.E. 66.) The rule set down in the Mosby case establishes that negligence will not be imputed to the auto dealer, entrusting an automobile to a prospective purchaser, in the same manner that negligence is imputed to the master who entrusts an automobile to his servant or to the principal who entrusts an automobile to his agent. (Accord Dean v. Ketter (1946), 328 Ill. App. 206, 65 N.E.2d 572.) It is not necessary, however, to impute negligence to the automobile dealer where he himself has committed an independent act of negligence. Such an independent act of negligence occurs on the part of the automobile dealer where he lends the automobile to a person he knows is incompetent to drive or is reckless. (6 Blashfield, Automobile Law & Practice sec. 254.13 (3d ed. 1966).) Numerous courts have determined that entrusting a car to an unlicensed driver is tantamount to entrusting a car to an incompetent driver, and therefore an independent act of negligence. (Kinney v. Smith (1973), 95 Idaho 328, 508 P.2d 1234; Barnes v. Zinda (Tex. Civ. App. 1971), 464 S.W.2d 501; Mundy v. Pirie-Slaughter Motor Co. (Tex. 1947), 206 S.W.2d 587; Hardwick v. Bublitz (Iowa 1963), 119 N.W.2d 886; Anthony v. Covington (1940), 187 Okla. 27, 100 P.2d 461.) Further, many of those courts adopt the view that the negligence of the unlicensed driver provides a causal connection necessary to establish liability in tort between the negligence of the entrusting automobile dealer and the injuries sustained by the plaintiff. This appears to be the preferred view. Where, as in the instant case, there was testimony that Larry Coons had actual knowledge that the defendant Griffin was an unlicensed driver, we conclude that entrusting the car to Griffin was an independent negligent act which proximately caused the injuries to Rose and Gwen Seward.

In addition, the defendant Coons cites as reversible error the circuit court’s failure to use special verdict forms and special interrogatories which he preferred. Recently it was held that while the use of special interrogatories and special verdict forms is recommended and highly desired, no error occurs in the failure to use such forms unless a party is clearly prejudiced by the omission. (Stromquist v. Burlington Northern, Inc. (1983), 112 Ill. App. 3d 37, 444 N.E.2d 1113.) We have reviewed the verdict form and the instructions submitted to the jury and we conclude that in the case at bar, the jury was adequately charged. Consequently, we find no error in the circuit court’s failure to utilize the special verdict forms and special interrogatories preferred by the defendant.

Also eliciting the objection of defendant Coons was the circuit court’s failure to charge the jury with his instruction number 1. That instruction concerned the Illinois statute in effect in 1976 concerning the procedures for transferring the certificate of title to an automobile. Clearly, no instruction need be presented to the jury concerning an issue or issues not raised by the pleadings or proof. (Shore v. Turman (1965), 63 Ill. App. 2d 315, 210 N.E.2d 232.) It cannot be disputed that the jury in this case was called upon to decide whether a sale and purchase had been consummated, but in making that determination, the only issue to be resolved was whether George Morrell’s recollection or Cathy Sue Griffin’s recollection was to be believed. Mrs. Griffin supported her position that no sale and purchase took place with testimony that she was familiar with her" husband’s signature, and that the signature which appeared on the title document, being the title to the Oldsmobile, the signature which George Morrell purportedly witnessed, was not in fact Howard Griffin’s signature. It is clear from the jury’s verdict that they found Cathy Sue Griffin to be a more credible witness. As the instruction which was refused by the circuit court was not relevant to any issue before the jury, it was not error to refuse that instruction.

The defendant Coons contends that the instruction which he offered the court on the issue of negligent entrustment was wrongfully refused by the circuit court, while at the same time the instruction on that issue offered by the plaintiffs, which was read to the jury, misstated the law. Specifically, the defendant argues that only his instruction correctly states the necessary element of proximate cause. As we recited earlier, the negligence of the unlicensed driver provides the requisite causal connection between the negligence of the auto dealer in lending the car and the injury sustained by the plaintiff. (Kinney v. Smith.) With this understanding of the element of proximate cause, and having reviewed the instructions of both the plaintiff and the defendant Coons, we agree with the circuit court that the plaintiff’s instruction correctly stated the issue for the jury.

Finally, the defendant Coons urges that the circuit court wrongfully ruled that there were two causes of action for two different plaintiffs contained in one count of the plaintiff’s complaint. In count XIV of that complaint, Robert Seward, described as father and next friend of Gwen Seward, seeks compensation for his own property damage for the medical bills of Gwen as well as compensation in his representative capacity for Gwen’s injuries. According to the defendant, the language “father and next friend” is a count in a representative capacity for Gwen Seward, who at the time of filing the complaint was a minor, and who since has reached her majority. The defendant posits that the single count XIV cannot properly state a cause of action by Robert Seward, individually, for medical bills, while also stating a cause of action for Gwen Seward for her injuries. The circuit court disagreed with the defendant. It is significant that the same practice rule which requires each separate claim or cause of action to be stated in a separate count (Ill. Rev. Stat. 1981, ch. 110, par. 33(2)) also instructs that pleadings shall be liberally construed with a view to doing substantial justice between the parties (Ill. Rev. Stat. 1981, ch. 110, par. 33(3)). This statutory directive has been said to place an emphasis on justice, not technicalities (Phillips v. Chicago Housing Authority (1980), 91 Ill. App. 3d 544, 414 N.E.2d 1133), to disdain procedural rigidities (Fort v. Smith (1980), 85 Ill. App. 3d 479, 407 N.E.2d 117), and to render unnecessary formal allegations (Morse v. Nelson (1977), 48 Ill. App. 3d 895, 363 N.E.2d 167). Indeed, the crucial test of any pleading is whether that document reasonably informs the opposite party of the nature of the claim which he is called upon to meet. (Ill. Rev. Stat. 1981, ch. 110, par. 42(2).) When count XIV of the complaint was filed Robert Seward had a cause of action as father of Gwen for her medical expenses. Robert Seward had a cause of action as next friend of Gwen and on her behalf for her injuries. Those causes of action were improperly combined in one count. Subsequently, Gwen Seward became of age and thereby entitled to pursue the cause of action for her own injuries in her own right. Nevertheless, it cannot be earnestly said that count XIV of plaintiff’s complaint did not inform the defendant that he would be called upon to meet a claim both for the medical expenses incurred in the treatment of Gwen Seward and for her injuries. Accordingly, we believe the circuit court did substantial justice in construing count XIV as stating two causes of action.

It is conceded by both the plaintiff Robert Seward and the defendant Coons that the jury returned a verdict in favor of the plaintiff for damages incurred as a result of Gwen Seward’s medical expenses in the sum of $53,460, when the actual medical bills totaled only $21,191.66. Since no evidence existed to support a verdict in the greater amount, the award to Robert Seward can only be affirmed subject to remittitur.

COOK AT EIGHTH, INC., APPEAL

On September 15, 1976, Cook at Eighth, Inc., owned and operated a tavern known as Two Sisters Tavern located at First and Carpenter streets in Springfield, Illinois. Two Sisters Tavern was a neighborhood bar with a local clientele. The owners were attempting to sell the tavern at the time, and consequently it was open a limited amount of hours with a very sparse supply of alcoholic beverages.

At trial, the evidence on the issue of sale or gift of intoxicating beverages to Howard Griffin against Cook at Eighth, Inc., consisted of the testimony of Cathy Sue Griffin. Mrs. Griffin testified that she had a conversation with Howard Griffin, her ex-husband, on the afternoon of September 16, 1976, while he was imprisoned in the Mason County jail. According to Mrs. Griffin’s testimony, the defendant Griffin related the following story. On September 15, 1976, Howard Griffin had taken Mrs. Griffin to Springfield Memorial Hospital in Springfield, Illinois. After dropping her off at the hospital, he went to the nearby Two Sisters Tavern where he had a few shots of Anisette, then bought a quart of Anisette to take with him. Then he went to the Century Bar, also in Springfield, where he had a few drinks. He subsequently drank the quart of Anisette on his way to Kilboume, Illinois, where he did more drinking, but at this point he did not remember what he drank or how much he drank because he was very intoxicated. In her testimony at trial, Mrs. Griffin recalled her husband telling her the size of the bottle he allegedly purchased and that he had consumed the bottle on his ride to Kilbourne, two details which she had not recalled earlier in a pretrial deposition.

The defendant Cook at Eighth, Inc., called three witnesses, Elda Blalock, the corporate president and treasurer, Novella Pacotti, the corporate vice-president and secretary, and William Stoneham, a regular patron at the Two Sisters Tavern. Each testified that the liquer Anisette was never sold nor served in the Two Sisters Tavern.

In its appeal the corporate defendant asks us to find that the circuit court erred in admitting the testimony of Cathy Sue Griffin concerning the jailhouse declarations of the defendant Howard Griffin. By any standard definition, these out-of-court declarations testified to by Mrs. Griffin were hearsay. Testimony concerning the declarations can only be admissible if it meets the criteria of one of the exceptions to the rule which bars all hearsay testimony. The circuit court held and the plaintiff on appeal urges that Mrs. Griffin’s testimony concerned declarations against interest, an exception to the hearsay rule. Declarations against interest must meet four requirements. First, the declarant must be excusably unavailable at the time of trial. Second, the declarant must have possessed competent knowledge of the facts about which his declaration was made. Third, the declaration must have been against his pecuniary interest. Fourth, the declarant must have had no motive to falsify his statement. (Merritt v. Chonowski (1978), 58 Ill. App. 3d 192, 373 N.E.2d 1060.) The corporate defendant urges that the declarations testified to by Mrs. Griffin fail to meet one or more of these requirements. The defendant relies on four similar cases: Jones v. DeWig (1974), 25 Ill. App. 3d 423, 323 N.E.2d 475, Naylor v. Gronkowski (1972), 9 Ill. App. 3d 302, 292 N.E.2d 227, Merritt v. Chonowski (1978), 58 Ill. App. 3d 192, 373 N.E.2d 1060, and Felker v. Bartelme (1970), 124 Ill. App. 2d 43, 260 N.E.2d 74. The first two cases, Jones and Naylor, involve declarations concerning intoxication made under the pressure of pending criminal proceedings with knowledge that intoxication was a potential mitigating factor or defense in the criminal proceeding. Therefore, the court concluded in both cases that there was a probable motive to falsify the declaration, thereby rendering the declaration inadmissible hearsay in a civil prosecution distinct from the criminal proceeding. In the Merritt case, an intoxicated person made declarations concerning his intoxication, and subsequent thereto the declarant was involved in an automobile accident while he was driving the automobile. The Merritt court concluded that the declarations concerning intoxication were inadmissible hearsay, but for reasons different than the court in Jones and Naylor. In the Merritt case, it was determined that the declarant had no pecuniary interest at stake until after the automobile accident which gave rise to potential civil liability. Since the declarations were made prior to the accident, they were made at a time when they did not jeopardize the pecuniary interest of the declarant. We find the facts of the case sub judice substantially distinguishable from the facts of Jones, Naylor and Merritt. The declarant in this case, defendant Griffin, was not under the pressure of a pending criminal proceeding, and unlike the facts in both Jones and Naylor, there is no indication that the defendant Griffin had knowledge that intoxication might be a mitigating factor or a defense to criminal charges. Likewise, the declarations of defendant Griffin were made after the automobile accident, at a time when Griffin faced the potential for civil liability, in derogation of his pecuniary interest.

The court’s decision in Felker v. Bartelme is not so readily distinguishable from the facts in the case before us. In Felker, the declarant made statements concerning his own state of intoxication which the court ruled were self-serving, noting that the declarant could have had a reason for fabrication if he assumed the plaintiff would be more likely to seek relief from a dramshop rather than from himself. No authority is cited by the Felker court, and the rationale of the Felker holding is only valid if the declarant is charged with knowledge of the alternative legal remedies available to the plaintiff. In another decision with extensive citation to authorities on the declaration against interest exception to the hearsay rule, a different holding is reached. (Frazier v. Burks (1968), 95 Ill. App. 2d 51, 238 N.E.2d 78.) The court in Frazier considers a similar declaration against interest, that is a declaration where the declarant describes his own state of intoxication, and then considers the admissibility of that declaration in light of numerous leading authorities on exceptions to the hearsay rule. The result of that consideration is the conclusion that the declaration was admissible in evidence, and that the declarant had no probable motive to falsify. We believe the Frazier decision is the better statement of the law, and its extensive citation to authority contrasted with the dearth of authority in Felker supports our conclusion.

In short, we believe all four requirements necessary to permit a hearsay declaration to be admitted into testimony as one against interest have been met with regard to the declarations that Howard Griffin made to Cathy Sue Griffin. Undeniably, Howard Griffin was not available at the time of trial. The potential criminal punishment facing the declarant necessarily involved his pecuniary interest, since it was likely to subject him to fine, loss of earnings through incarceration, and to legal and other expenses involved in defending himself. There is no reason to doubt the competence of Howard Griffin in recalling the events which occurred on the evenipg of September 15, 1976. Finally, for the reasons we have discussed, and in reliance on the case of Frazier v. Burks, we do not believe the declarant had a motive to falsify his statement.

The corporate defendant, Cook at Eighth, Inc., asks us to find that the jury verdict against it was against the clear and manifest weight of the evidence. In so doing, the defendant points to the testimony of Elda Blalock, Novella Pacotti and William Stoneham, to the effect that the Two Sisters Tavern never stocked or sold Anisette. There is a clear conflict in the evidence. There is the testimony of the corporate defendant’s principals that it could not have been liable, and there is the declaration of Howard Griffin that it was liable. The task of resolving conflicts in the evidence is the province of the jury, and if the jury’s resolution of that conflict is supported by credible evidence, this appellate court will not substitute its judgment for that of the jury.

The defendant Cook at Eighth, Inc., raises the same issue on appeal as did the defendant Coons concerning the improper inclusion in one count of causes of action by Robert Seward individually as the father of Gwen and by Robert Seward in his representative capacity as next friend of Gwen. For the reasons set forth earlier in this opinion, we believe the circuit court did substantial justice between the parties by permitting the plaintiffs to present evidence on both causes of action at the trial which occurred below. The defendant here most certainly knew, from the allegations of the complaint on file, that both causes of action would be pursued.

The verdicts against the defendant, Cook at Eighth, Inc., can only be affirmed subject to remittitur. The verdicts returned by the Peoria County jury were in excess of the statutory limits set forth in the Dramshop Act. A verdict was returned for Rose Marie Seward for her personal injuries in excess of the statutory maximum, and that verdict should be reduced to $15,000. A verdict was returned for Robert L. Seward for his loss of means of support in excess of the statutory maximum, and that verdict should be reduced to $20,000. A verdict was returned for Robert L. Seward for his property damage by virtue of the medical expenses incurred by his minor daughter, and that verdict was in excess of the statutory maximum and should be reduced to $15,000. A verdict was returned for Gwen Seward for her personal injury in excess of the statutory maximum, and that verdict should be reduced to $15,000.

ROSE AND GWEN SEWARD APPEAL

The plaintiffs, Rose and Gwen Seward, appeal the verdicts rendered by the jury in their cause of action against the defendants Volkswagen. They allege that certain errors occurred in the trial which were prejudicial, and for that reason they request a judgment notwithstanding the verdict as to the plaintiffs Gwen and Robert Seward, or in the alternative a new trial, and a new trial on the issue of damages as to the plaintiff Rose Seward, or in the alternative a new trial on all issues.

The defendants Volkswagen were permitted to question before the jury an accident reconstruction expert. The plaintiffs objected to the admission of this testimony because they allege that it was unnecessary to the issue before the court and it was in conflict with certain eyewitness testimony presented as to the events surrounding the collision. It is a correct statement of the law that where eyewitness testimony is available, the use of a reconstruction expert is not warranted unless the testimony of the eyewitnesses is incredible, unbelievable, or contrary to accepted ordinary scientific law. There is no place for the opinion of the reconstruction expert if the determinative facts are otherwise established by credible physical or eyewitness evidence. (Abramson v. Levinson (1969), 112 Ill. App. 2d 42, 250 N.E.2d 796.) On the other hand, expert testimony on the reconstruction of an automobile accident is admissible where it is necessary to rely on the knowledge and application of principles of physics, engineering and other sciences beyond the ken of the average juror. (Miller v. Pillsbury Co. (1965), 33 Ill. 2d 514, 211 N.E.2d 733.) We have reviewed the transcript of proceedings as it applies to the testimony here in question. From that review, we find that the reconstruction expert limited his testimony to the physical science concept of Delta-V. According to the defendants’ expert, one of the most critical determinations in evaluating the potential of an impact to create injury is the change in velocity of the colliding vehicles, a change measured by the concept of Delta-V. Many factors enter into computing a velocity change including the relative closing speed of the vehicles, the angle of impact, the relative weights, and the impact resistant characteristics of the vehicles. The complexity of these computations is undoubtedly beyond the ken of the average juror. The necessity for this type of testimony arises by the nature of the allegations against the defendants Volkswagen. The defendants here are not alleged to have caused the accident. Rather, the defendants Volkswagen are alleged to be responsible for the “second impact” injuries, those injuries which the plaintiffs would not have incurred if the Volkswagen van in question had been a reasonably crashworthy vehicle. To separate the injuries received in the “first impact” and the injuries received in the “second impact,” we believe it can reasonably be argued that the jury must evaluate the potential of that first impact, and the reconstruction expert’s explanation of the change of velocity or Delta-V would be appropriate in that regard. Any testimony of the expert which tended to contradict the testimony of eyewitnesses was merely incidental to the primary thrust of the testimony of the reconstruction expert, all of which concerned Delta-V. The demonstrative evidence which was used to illustrate and clarify the expert’s testimony was clearly admissible, as the use of this type of evidence is within the broad discretionary power of the circuit judge (Hunter, Trial Handbook for Illinois Lawyers sec. 50:1 (4th ed. 1972)), and that discretion is not abused where visual aids are permitted to understand rather complex scientific testimony.

The plaintiffs also object to the admission into evidence of defendants’ exhibit No. 40, certain Federal motor vehicles safety standards, urging that those standards are not relevant to the van in question. We note that some of the Federal standards set forth in exhibit No. 40 were applicable to the 1970 Volkswagen van where other standards included in that same exhibit were made applicable at a later date. While this may affect the weight which the jury ascribes to this evidence, it does not affect its admissibility after the supreme court’s definitive opinion on this subject in Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill. 2d 434, 396 N.E.2d 534. Therein the court determined that evidence of compliance with Federal standards is relevant to the issue of whether a product is defective as well as the issue of whether a defective condition is unreasonably dangerous.

At the trial which occurred below, the plaintiffs attempted to admit into evidence the front portion of a Volkswagen van, similar to the van involved in the collision, which had been the subject of impact tests conducted by two of plaintiffs’ experts. This partial van was denied admission into evidence, even though an actual Volkswagen van offered into evidence by the defendants was admitted. The plaintiffs urge that this was prejudicial error. While trial courts have only a limited right to exclude such tangible evidence as is material and relevant (Virgil v. New York, Chicago, & St. Louis R.R. Co. (1952), 347 Ill. App. 281, 106 N.E.2d 749), relevancy of such real evidence is directly related to its structural similarity, that is its design similarity, to the van which the plaintiffs allege was unreasonably lacking in crashworthiness. In the case of the plaintiffs’ proffered partial van, no witness testified that it was structurally similar to the van involved in the collision, and numerous components even of the partial van had been removed from their original configuration. Under these circumstances, it cannot be said that the trial court abused its discretion in denying the admissibility of plaintiffs’ exhibit into evidence.

Also denied admission into evidence was what plaintiff alleged to be a repair manual for a 1970 Volkswagen van. Plaintiffs believe this denial was in error. Documentary evidence such as the alleged repair manual must be authenticated before it can be admitted into evidence. (29 Am. Jur. 2d Evidence sec. 849 (1967).) We find absent from this record the kind of testimony which would establish that the alleged repair manual was what it was represented to be. Without such authentication, the circuit court correctly denied admission of the exhibit as offered.

During the court of the trial in the court below, the defendants Volkswagen presented evidence to demonstrate that Rose Seward and Gwen Seward were not wearing seat belts at the time of the collision. Further evidence was presented which tended to show that in a collision of this type, seat belts can reduce the injuries inflicted by the forces of impact. While the plaintiffs do not object to the testimony presented by the defendants, they believe the circuit court erred when it denied them an opportunity to present evidence as to the percentage of the motoring public which regularly use seat belts. They contend that such evidence would show that a small percentage of the motoring public does use seat belts, and therefore the defendants Volkswagen should have reasonably anticipated that the 1970 van would be used by persons not wearing the seat belts with which it was equipped. Several Illinois decisions have made it clear that evidence of the use or nonuse of seat belts is not admissible as to the issue of liability, but is admissible as to the evidence of damages. (Mount v. McClellan (1968), 91 Ill. App. 2d 1, 234 N.E.2d 329; Josel v. Rossi (1972), 7 Ill. App. 3d 1091, 288 N.E.2d 677; Hale v. Cravens (1970), 129 Ill. App. 2d 466, 263 N.E.2d 593.) Indeed, it has been said that there is a duty, based on the common law standard of ordinary care, to use available seat belts independent of any statutory mandate. (Mount v. McClellan, citing Bentzler v. Braun (1967), 34 Wis. 2d 362, 149 N.W.2d 626.) Where the law establishes a duty to wear seat belts to mitigate any potential injury, it is irrelevant to the jury’s consideration whether a large portion of the population or a small portion of the population actually avail themselves of the protections afforded by the belts. The duty is imposed by law. The only questions for the jury to determine are whether the belts were worn and to' what extent the belts might have mitigated injuries if they had been worn. We find no error in the trial court’s refusal to permit the plaintiffs to present the type of evidence here in question.

The plaintiffs sought to introduce into evidence eight photographs reflecting their condition during treatment in the hospital immediately following the accident. Admission of those photographs into evidence was denied by the circuit court. Plaintiffs’ contention on appeal is that this constituted reversible error. We disagree. Photographs of this nature, which demonstrate unpleasant and sometimes gruesome physical conditions, may be properly admitted into evidence. Merely because the photographs might arouse feelings of horror or indignation, or might inflame the passions of the jury, should provide no basis for excluding the photographic evidence. (Darling v. Charleston Community Memorial Hospital (1964), 50 Ill. App. 2d 253, 200 N.E.2d 149.) Nevertheless, the admission of this type of evidence is subject to the broad discretion of the trial court. Photographs which vividly and accurately depict an injury are relevant to the issue concerning the nature and severity of the injury and the resultant pain and suffering. The utilization of such evidence should be encouraged. (Kallas v. Lee (1974), 22 Ill. App. 3d 496, 317 N.E.2d 704.) Yet, where the evidence is admissible, even where its admission is to be encouraged, it is not error to deny the admission of such evidence where ample opportunity is presented to graphically describe with oral testimony the nature of the injuries incurred. (Kallas v. Lee.) From the record before us, it is apparent that the plaintiffs were able to admit in the record substantial testimony which graphically described the injuries they received.

Finally, the plaintiffs contend that the general verdict of the Peoria County jury was inconsistent with a special verdict which they rendered. In answer to a special verdict question, the Peoria County jury affirmed that the design of the 1970 Volkswagen van presented an unreasonably dangerous condition. The plaintiffs urge that the verdict in the amount of $9,000 for Rose Seward, being substantially less than her proven medical expenses, and the failure to render a verdict for Gwen Seward or Robert Seward, are contrary as a matter of law to the special finding. The measure of damages applicable to a design defect case of this type convinces us that the plaintiffs’ position is not correct. Where the plaintiffs complain that the design of the 1970 Volkswagen van was not crashworthy, and therefore their injuries were enhanced by the unreasonably dangerous design, the defendants Volkswagen are liable for damages only to the extent that the defective design enhanced the injuries which would have been received in any event as a result of the first impact. (Fink v. Chrysler Motors Corp. (1974), 16 Ill. App. 3d 886, 308 N.E.2d 838.) The fact that the 1970 van was not crashworthy in the opinion of the jury is not the same as saying that all of the injuries received by the plaintiffs were proximately caused by that defective design. Photographs of the 1970 van after the collision indicate that the van was far more severely impacted on the driver’s side of the vehicle where Rose Seward was seated than was the case on the passenger side of the vehicle where Gwen Seward was seated. It would be consistent with the evidence presented if the jury had concluded that all of Gwen Seward’s injuries were proximately caused by the impact with the Oldsmobile driven by Howard Griffin and that none of her injuries were caused or enhanced by the design defects in the van. It would also be consistent and supported by the evidence if the jury had concluded that only $9,000 of the damages sustained by Rose Seward were proximately caused by the defective design of the Volkswagen van. While it is impossible to determine with certainty which injury or injuries received by Rose Seward were, in the opinion of the jury, proximately caused by the defective design, that is the tortious act, of the defendants Volkswagen, one plausible explanation of the jury’s verdict is set forth in the brief filed by the defendants Volkswagen before this court. The evidence in the trial below indicated that the lower left driver’s area of the Volkswagen van was the point of greatest impairment of the passenger compartment of the van. Robert Seward testified that he found his wife’s left shoe wedged in the floor board following the accident. Therefore, the jury could have concluded that this point of greatest of impairment was the only manifestation of the design defect, and the jury could have concluded that the injury to Rose Seward’s left ankle was the only injury for which the defendants Volkswagen were liable. In short, we find evidence in the record to support the verdict of the jury.

VOLKSWAGEN CROSS-APPEAL

The defendants Volkswagen have appealed the verdict in favor of Rose Seward and the answer to the special interrogatory concerning the existence of an unreasonably dangerous design, contending on appeal that considering all the evidence most favorably to the plaintiff, Rose Seward, the verdict cannot stand. Specifically, the cross-appellants argue that the record is devoid of any evidence of alternative design feasibility and of any evidence that the injuries to Rose Seward were proximately caused by the allegedly defective design. It is further argued that evidence on both of these points is necessary to state a prima facie case for a product’s defective design, and where these elements of the prima facie case are absent, a judgment n.o.v. should have been granted.

In the leading Illinois authority on the subject of alternative design feasibility, Kerns v. Engelke (1979), 76 Ill. 2d 154, 390 N.E.2d 859, our supreme court determined that the Illinois rule provides that a plaintiff need not plead alternative design feasibility in a products design case. The court left open the question of whether a plaintiff must prove alternative design feasibility. What must be proved, according to the Kerns court, is the unreasonably dangerous nature of the defect in design. Clearly, evidence of alternative design feasibility is relevant to the issue that must be proved. In light of the Kerns decision, and until the Illinois Supreme Court determines otherwise, we believe the rule of law in Illinois is that evidence of alternative design feasibility is relevant and admissible in a design defect case, but it is not an essential element of such a case if the finder of fact can be persuaded in the absence of such evidence that the defect in design rendered the product unreasonably dangerous.

In further support of the cross-appellant’s contention that judgment n.o.v. should have been entered in the circuit court, we are asked to consider whether there was sufficient evidence that the alleged design defect proximately caused any of the plaintiff Rose Seward’s injuries. The plaintiff presented testimony by its expert that all of Rose Seward’s injuries were enhanced by the defective design of the Volkswagen van. It is apparent from the verdict that the jury rejected large portions of this witness’ testimony. In fact, it appears likely that the jury accepted the testimony of the cross-appellant’s expert, Dr. Mackay, in arriving at their decision as to which, if any, of Rose Seward’s injuries were proximately caused by the alleged design defect. It was Dr. Mackay who explained that Rose Seward’s left ankle injury was likely caused by direct contact and loading applied through the floor of the Volkswagen van at the time of impact. With this evidence, the jury could have concluded that because of a defect in design, because the Volkswagen was insufficiently crashworthy, the integrity of the passenger compartment was unreasonably impaired at the time of impact in the area of the vehicle’s floor, the area where Rose Seward’s foot and ankle were injured. It follows then that the jury’s decision was not against the manifest weight of the evidence, and the circuit court did not err in denying the cross-appellant’s request for judgment n. o.v.

In the brief of the cross-appellants, additional arguments are set forth for our consideration, but only in the event that we granted the relief requested by Rose and Gwen Seward. Inasmuch as we have previously determined that the errors cited by the appellants Seward do not merit reversal of the circuit court judgment, we find it unnecessary to consider these additional arguments of the cross-appellants.

For the reasons we have set forth above, we believe the judgment of the circuit court of Peoria County should be affirmed, subject, however, to the plaintiffs’ acceding to the remittitur of the judgments as previously described.

Affirmed subject to remittitur.

STOUTER, P.J., and HEIPLE, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BILLIE D. BARBER, Defendant-Appellant.
    Third District
    No. 82—610
    Opinion filed July 29, 1983.

      J. Peter Ault, P.C., of Pekin, for appellant.
    Bruce W. Black, State’s Attorney, of Pekin (John X. Breslin and Kenneth A. Wilhelm, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

The defendant, Billie D. Barber, was found guilty of the murder and robbery of his ex-wife, Rhonda Barber, following a jury trial in the circuit court of Tazewell County. When the jury failed to impose the death penalty, the defendant was sentenced to natural life imprisonment.

On appeal, the defendant raises nine allegations of error seeking reversal of his convictions or, alternatively, a remand for a new trial, or modification of the sentence imposed.

The evidence adduced at trial consisted of the following.

Robert Yost, the decedent’s father, testified that he was staying with his daughter for a few days over the holidays in January of 1982. On January 2 he last saw his daughter alive at noon. Before he left the house, he gave her $20 to buy groceries. When he returned at midnight, he found the house locked. He gained entry to the home by crawling through the front window. Inside he found his daughter’s body, the victim of an apparent stabbing, on the floor of her bedroom. His two-year-old grandson, Justin, was alive and apparently unhurt although he had blood on his mouth and pillow. The police were notified immediately.

Gary Graff, a deputy sheriff, arrived and made a sketch of the crime scene. He noticed an area on the door to the decedent’s bedroom where no fingerprint powder had adhered. The area was oval shaped, 12 to 15 inches in diameter, about five feet from the floor. He also observed a partial print on the inside frame of the bedroom door leading to where the victim was found. The print was approximately five feet from the floor.

Graff testified that he saw the defendant two days later, on January 4, 1982, at which time he was wearing a gray hooded sweatshirt, a blue jean jacket and what appeared to be a new pair of blue jeans. The defendant had scratches on his neck and hands and a swollen lip.

The defendant told Graff that he was living with his ex-wife and had last seen her on January 2, when she left to go shopping. He left the home on foot in the afternoon and obtained a ride from three unknown white males in a white Vega. The defendant maintained that he was with these individuals until 9 p.m., during which time they drank beer and smoked marijuana. At approximately 9 p.m. he went to the apartment of Rebecca Martinez and from there to the apartment of Mack Howell, where Rebecca Martinez was watching television.

Graff stated that he went to the Martinez apartment and obtained a pair of blue jeans which the defendant identified as his and which contained the blood of the decedent. The defendant claimed that the blood was from a cut Rhonda had sustained to her finger earlier in the day on January 2, when he had “playfully” taken a knife away from her. The defendant said that the scratches he had were received at a New Year’s Eve party from another woman.

Graff recovered two $50 bills and four $20 bills wrapped in a towel from the Martinez apartment. The defendant told Graff that he and his ex-wife had been selling drugs from her home and were expecting a quarter pound of marijuana on the night of her death.

Detective Sergeant Eugene Maxwell testified that he took photographs of the defendant on January 4 depicting scratches on his face, neck, chest, arms and hands. The defendant told Maxwell during the questioning following his arrest on March 5, that “I’ve got something to say to you, and it might make you mad but I don’t want to tell you how I did it until I talk to my lawyer.” The defendant also told Maxwell that he had smoked a “dime’s worth” of pot during the day and had smoked “a joint” approximately 10 minutes before he was picked up.

Patricia Orr, a forensic scientist, testified as to blood and hair samples submitted and that certain stains on the victim’s sweater could have been a mixture of the defendant’s and decedent’s blood and that blood stains on the defendant’s jeans could have been the victim’s.

Susan Bruce, a grocery store clerk, testified that the defendant and his ex-wife came into the store on January 2 in order to cash Rhonda’s public aid check.

Jackie Bridgmon and Margaret Pedigo saw an individual at approximately 8 p.m. on January 2, 1982, walking along the road in the sleet. Each identified a photograph of the defendant from a group of photographs as the man they saw.

Belinda Grandy testified that she was a neighbor of the decedent and had gone grocery shopping with her from 2 to 4 p.m. on January 2,1982.

Dr. Paul Millikin, a pathologist, testified that an autopsy of the decedent indicated multiple bruises, a hairline skull fracture, multiple stab wounds, a large laceration across the throat, and that death resulted from the loss of blood from the multiple stab wounds to heart and lung. The decedent was SVa months pregnant.

Barbara Blackburn testified that she and her husband had been with the defendant and his ex-wife on New Year’s Day and that there had been no arguments between them then. When the decedent’s father arrived she saw the defendant go to the back of the house where he would not be seen.

Frank Blackburn, Barbara’s husband, testified that the defendant had both marijuana, “pot,” and cocaine in the house and that he saw the defendant cutting the cocaine into “dimes” and placing it in tin foil packets. He also testified that when he saw the defendant on January 5, he observed a scratch on his neck which he had not seen on New Year’s Day.

Mack Howell testified that the defendant came to his apartment at approximately 9 p.m. on January 2 and that he appeared nervous. The defendant’s hair and clothing were wet.

Rebecca Martinez testified that on January 3, she purchased a pair of blue jeans for the defendant at his request and that he paid her with a $20 bill. The defendant wanted Martinez to buy the jeans because she could get a discount from Bergner’s where she worked.

Jackie Evans testified that when he was an inmate of the Logan Correctional Center he worked as a legal clerk, which included helping inmates prepare legal documents. Evans had assisted the defendant in preparing dissolution of marriage documents and the defendant wanted to allege adultery as grounds for the action. He told Evans that his wife was living with another man and that she was pregnant by him and that he (the defendant) was going “to kill her.” Evans believed the defendant to be serious.

Dorothy Daugherty, the decedent’s mother, testified that two years prior to her daughter’s death she had seen a letter to her from the defendant in which he wrote that “if he ever caught her fucking around with some bastard, he would kill her.”

The State rested its case and the defense testimony included the following:

Detective Sergeant Maxwell testified that his investigation had in-eluded suspects other than the defendant.

Barbara Blackburn testified that on the day Rhonda Barber died, she told her that the defendant had accepted the fact that she was pregnant by another man and that the defendant wanted to remarry her.

Tonya Beeney, the defendant’s sister and roommate of Rebecca Martinez, testified that she saw her brother on January 2 at approximately 9 p.m. and that he changed his jeans to the ones purchased for him by her roommate, Martinez. She noticed that the jeans her brother had been wearing that evening were wet, but noticed nothing else about them. She was with the defendant when he found out about Rhonda’s death and he appeared upset, surprised, and he cried.

Rebecca Martinez testified that she saw the defendant at Mack Howell’s apartment on January 2 at approximately 9 p.m. and that he told her he had been riding around with some guys earlier in the evening. She noticed that the defendant’s hair and clothing were wet but nothing else unusual. She observed scratches on the defendant after the New Year’s Eve party.

The defendant testified that he had been in the penitentiary twice for burglary. He had been released December 1, 1981, approximately one month before his ex-wife’s murder. He testified he “did not recall” telling Jackie Evans he was going to kill Rhonda, and denied writing any threatening letter to her. He identified a public aid check that he had cashed to buy drugs. He admitted hiding in the bedroom closet when his ex-wife’s father came home.

On the night of the murder, the defendant said he was with three strangers and that they told. him where they could get some good “pot.” They took him back to Rhonda’s and he got some money to buy some. They smoked pot, drank beer and rode around until he was dropped off at Becky Martinez’ apartment, where he changed into the new jeans she purchased for him. He then went to Mack Howell’s apartment which was only two doors away.

The next day he went to the sheriff’s department and found out Rhonda had been killed. He was questioned and released and not arrested until March 5, 1982. He denied telling Sergeant Maxwell that he would say “how he did it.”

The defendant’s first allegation of error concerns the trial court’s refusal to suppress the inculpatory statement allegedly made to Sergeant Maxwell.

The defendant denies making the inculpatory statement but contends that if it was made, it was involuntary because of his use of marijuana on the day of his arrest.

The determination of the issue of the voluntariness of a confession depends not upon any single factor, but on the totality of the particular circumstances in any given case. The question of whether the defendant’s will was overcome at the time he confessed or whether the confession was made freely, voluntarily and without compulsion or inducement of any sort, is for the trial court. (People v. Noe (1980), 86 Ill. App. 3d 762, 408 N.E.2d 483.) In making its decision, the trial court is not required to be convinced beyond a reasonable doubt. People v. Nemke (1970), 46 Ill. 2d 49, 263 N.E.2d 97.

A reviewing court will not disturb the trial court’s decision unless it is against the manifest weight of the evidence or unless it constitutes a clear abuse of discretion. People v. Nemke (1970), 46 Ill. 2d 49, 56, 263 N.E.2d 97, 101.

The defendant does not contend that his inculpatory statement was the product of force, intimidation or promise of leniency. We note that the defendant’s allegation on appeal that his confession was involuntary due to his marijuana smoking was contradicted by his testimony at trial that such use did not affect his ability to understand what was happening during the questioning following his arrest. There was no evidence from any officer that the defendant was under the influence of drugs or alcohol at the time of his arrest.

It should be noted that the defendant was not unaccustomed to talking with police officers, either in the investigation of this case or because of his experience in prior years.

While it is true that the State cannot introduce evidence or comment upon the defendant’s exercise of his right to counsel (People v. Johnson (1971), 2 Ill. App. 3d 965, 275 N.E.2d 649), it is clear here that the inculpatory portion of defendant’s statement was made before any request for an attorney was made. For these reasons we believe the trial court properly denied defendant’s motion to suppress.

The defendant contends that the trial court erred in allowing expert testimony as to a possible explanation for the existence and location of physical evidence, i.e., the palm print on the door frame leading to the bedroom where the decedent was found and the oval area on the door which had an unusual absence of smudges and smears.

The trial judge determined that based upon the authority of People v. Gordon (1981), 94 Ill. App. 3d 764, 419 N.E.2d 66, it was proper to allow Mr. Dubois, an acknowledged expert, to testify as to a possible explanation of how the position of the palm print on the door frame and the absence of smudges or smears on the door came into existence.

It is well settled that an expert whose qualifications and experience give him knowledge which is beyond the ken of the average juror and whose testimony will aid, and not invade, the province of the jury in reaching its decision, should be allowed to testify. (People v. Beil (1979), 76 Ill. App. 3d 924, 395 N.E.2d 400.) Experts, properly qualified, are not limited to a recitation of what they observed, but may express their opinion as to causation. People v. Gordon (1981), 94 Ill. App. 3d 764, 768, 419 N.E.2d 66, 70.

The trial judge had broad discretion to determine the qualification of experts and to decide whether their testimony may assist the jury in its deliberations and a reversal is not warranted absent a manifest abuse of this discretion. (People v. Yancey (1978), 57 Ill. App. 3d 256, 372 N.E.2d 1069.) We believe the evidence indicates that there was no abuse of discretion in allowing such expert testimony here.

Next, the defendant contends that the trial court erred in denying his motion for a directed verdict on the count of robbery. The State had argued that the defendant took money from the victim which was the proceeds of a public aid check received by the defendant’s ex-wife the day she was murdered. The defendant testified that he had been given public aid checks by his ex-wife in the past and had lived off the proceeds since his release from the penitentiary. The actual money found in the Martinez apartment was not admitted into evidence by the trial court due to the fact that it believed it was too remote and speculative to allow the trier of fact to consider the currency as evidence.

The evidence offered no proof to the jury that the defendant took money from his ex-wife by force or against her will, either before or after her murder. People v. Pack (1976), 34 Ill. App. 3d 894, 341 N.E.2d 4.

The standard of review for a denial of a motion for a directed verdict is whether the evidence adduced by the People, when viewed in a manner most favorable to the prosecution, establishes a defendant’s guilt beyond a reasonable doubt. (People v. Henderson (1981), 95 Ill. App. 3d 291, 419 N.E.2d 1262.) We believe there was insufficient evidence here for the jury to have concluded that the defendant was guilty of robbery beyond a reasonable doubt. (People v. King (1979), 67 Ill. App. 3d 754, 384 N.E.2d 1013.) Accordingly, the defendant’s conviction for robbery must be reversed.

The defendant also contends that the trial court erred in refusing to give his tendered instruction on circumstantial evidence which included the second paragraph of Illinois Pattern Jury Instruction (IPI), Criminal, No. 3.02 (2d ed. 1981) (“facts or circumstances proved must exclude every reasonable theory of innocence”). We note that the particular instruction tendered by the defendant is not to be given unless the evidence of guilt is entirely circumstantial. Comments to IPI Criminal No. 3.02; People v. Hill (1978), 56 Ill. App. 3d 510, 371 N.E.2d 1257.

In view of defendant’s clear admission to the police that “he would not say how he did it until he talked to an attorney,” there was direct evidence of the defendant’s guilt which justified the refusal of defendant’s tendered instruction. People v. Sanchez (1979), 73 Ill. App. 3d 607, 392 N.E .2d 378; People v. Brooks (1972), 7 Ill. App. 3d 767, 289 N.E .2d 207.

The defendant next contends that the trial court erred in allowing the testimony of Jackie Evans into evidence. Evans was the inmate at the Logan Correctional Center who worked as a legal clerk or jailhouse lawyer. While the defendant was at Logan he asked Evans for assistance in preparing a petition for dissolution of marriage. Defendant told Evans that he wanted a divorce from his wife because he believed she was living with another man and had become pregnant by him. While the divorce proceeding was pending, the defendant told Evans he was going to kill his wife.

The trial court found that since Evans was not a licensed attorney, there was no attorney-client relationship and therefore no attorney-client privilege to conversations between the defendant and his fellow inmate.

The determination of the existence of a privileged communication is for the trial court. (Gronewold v. Gronewold (1922), 304 Ill. 11, 136 N.E. 489.) The burden is on the party claiming the existence of the privilege to show that it should be protected. (In re Estate of Wahl (1920), 218 Ill. App. 295.) In no way was Evans a “professional legal advisor,” nor was the defendant “his client.” (People v. Adam (1972), 51 Ill. 2d 46, 280 N.E.2d 205.) Therefore, no error occurred in permitting Evans to testify as to certain statements made to him by the defendant.

The defendant further contends that the trial court erred in allowing the victim’s mother to testify regarding a threatening letter written by the defendant to her daughter approximately two years before trial, and about two to three months before the defendant was sent to the penitentiary for a prior offense. A month after he was released, his ex-wife was brutally murdered. The vast majority of time in the interim between the origin of the letter and the victim’s murder was spent by the defendant in the penitentiary, where the threat could not be carried out.

The defendant’s challenge to the admissibility of such evidence on the grounds of remoteness in time or the best evidence rule is not well taken. The issue of remoteness is a question which goes to the weight of the evidence, not its admissibility. (People v. Mertens (1979), 77 Ill. App. 3d 791, 396 N.E.2d 595.) The best evidence rule requires that the original document be introduced into evidence unless it is shown to be lost, destroyed or unavailable. (People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200.) Here the victim’s mother testified that following her daughter’s murder, she made a diligent search of her apartment to locate the document but was unable to do so. Her specific recollection of the contents of the letter, her identification of the defendant’s handwriting and signature sufficiently established the existence of the document and the prior threat to kill her daughter by the defendant was certainly relevant to the question of his innocence or guilt for her murder.

The admission of the testimonial evidence regarding the existence and source of the threatening letter was also not precluded by the marital privilege, since communications between husband and wife are not privileged where one is charged with an offense against the other. Ill. Rev. Stat. 1981, ch. 38, par. 155—1.

The defendant next contends that the trial court erred in allowing into evidence certain photographs of the defendant, i.e., one in a lineup where the defendant’s middle finger allegedly depicts an obscene gesture and the other showing cuts and scratches on the defendant’s neck, hands, face, arms and chest as they existed on January 4, 1982, two days after his ex-wife’s murder. Also admitted over defendant’s objection was a diagram of the victim’s bedroom showing the location of her body and various items in the room at the time the victim was found.

We believe the probative value of the foregoing exhibits is clear and no error occurred in their admission into evidence. Certainly the photographs of the defendant were relevant to show his identification and physical condition shortly after the murder and the sketch, although not to scale and so marked, was no more than corroborative of the crime scene investigation testimony.

Next, the defendant contends he was not proved guilty beyond a reasonable doubt. We disagree. Without restating in this opinion all the facts and circumstances which we believe support the defendant’s conviction for murder, we must note in the first instance that the defendant admitted to the police that he killed his ex-wife. Certainly the evidence of defendant’s prior threats to kill his wife, the marks on his body immediately after the killing, all suggest not only that he did it, but that his ex-wife didn’t die without a fight. The defendant’s blood-spattered jeans which he discarded on the night of the murder, his incredible alibi which the jury obviously chose to disbelieve, all support the lack of a reasonable hypothesis of defendant’s innocence.

We believe it is well settled that a reviewing court may not substitute its determination for that of the jury unless it is so palpably contrary to the weight of the evidence or so unsatisfactory as to create a reasonable doubt of guilt. People v. Crossno (1981), 93 Ill. App. 3d 808, 417 N.E.2d 827.

It was peculiarly within the province of the jury to assess the inconsistencies or discrepancies in the testimony, any possible bias or interest affecting the credibility of witnesses and the weight to be attributed to their testimony. People v. Seiber (1979), 76 Ill. App. 3d 9, 394 N.E.2d 1044.

In light of the foregoing principles, we are unable to conclude that the verdict of the jury was against the manifest weight of the evidence or so palpably erroneous or unsatisfactory that a reversal is mandated.

Finally, the defendant contends that the trial court abused its discretion in imposing a sentence of natural life imprisonment.

We note that section 5—8—1 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005—8—1) provides that such a sentence is appropriate “if the court finds that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty ***.”

The record here indicates that the trial court specifically noted the foregoing provisions of the statute and there is no denial that the evidence in this case clearly supports his decision.

It is not the province of this court to reduce such a sentence merely as an act of judicial clemency. People v. Watson (1982), 107 Ill. App. 3d 691, 438 N.E.2d 453; People v. York (1980), 87 Ill. App. 3d 1026, 409 N.E.2d 525.

The defendant contends, however, that the trial court improperly considered as an aggravating factor that the murder was committed in the course of another felony, to-wit, robbery. We have set aside the defendant’s conviction and sentence for robbery, but the question remains whether the case must be remanded for resentencing. If this was the only basis upon which the trial court concluded that a life sentence was appropriate, then a remand would be in order. However, a review of the record indicates that the trial court imposed a natural life term of imprisonment upon the defendant due to its belief that the murder was “accompanied by exceptionally brutal [and] heinous behavior indicative of wanton cruelty.” Ill. Rev. Stat. 1981, ch. 38, par. 1005—8—1.

We do not believe the trial court abused its discretion in concluding that the brutal nature of the murder here fell squarely within the scope of our natural life imprisonment statute.

For these reasons, the judgment and sentence of the circuit court of Tazewell County is affirmed in part and reversed in part.

Affirmed in part, reversed in part.

BARRY and HEIPLE, JJ., concur.


author: PRESIDING JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CORNELL GORE, Defendant-Appellant.
    Third District
    No. 82—775
    Opinion filed June 21, 1983.
    Rehearing denied August 31, 1983.

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

delivered the opinion of the court:

Following a bench trial in the circuit court of Peoria County, the defendant, Cornell Gore, was found guilty but mentally ill of the offense of attempted indecent liberties with a child. (Ill. Rev. Stat. 1981, ch. 38, par. 8—4(a).) The defendant was sentenced to a term of four years of probation with the condition that he serve three months in the county jail. He was also ordered to submit to treatment at the Zeller Mental Health Center under a court-approved treatment program. The defendant was ordered to undergo whatever psychiatric treatment the probation department directed.

The facts are briefly summarized on appeal.

On October 19, 1981, the defendant went to the home of Nellie McCall in the Taft Homes, Peoria, Illinois. While there, he removed all his clothing with the intent to engage in sexual intercourse with McCall’s six-year-old daughter, Sequana McCall. His attempt to carry out this activity was thwarted by Nellie and Michael Fortune. Subsequently, the defendant, still naked, left the scene.

Officer Raymond Frazelle of the Peoria police department received a dispatch on October 19, 1981, that a man was running nude in the Taft Homes area. As he was patrolling, Frazelle received a second dispatch that the man had been given some clothing. The man was described as wearing a blue shirt, orange pants, and had no shoes. The man was walking south on Adams Street.

The officer observed a man matching the description and walking south on Adams Street. He drove alongside the man, left his car and asked the man to come over to him. The man, identified as the defendant, walked over to Officer Frazelle at which time Frazelle asked the defendant, “What happened back there?” referring to the Taft Homes. The defendant responded, “I was messing with a six year old girl.” Frazelle then placed the defendant under arrest, examined him for weapons, and handcuffed the defendant. The officer read the defendant his Miranda rights. The defendant said that he understood. Officer Crowell transported the defendant to the police station.

While he was in a holding cell at the Peoria police station, the defendant appeared to experience visual and auditory hallucinations for a short period of time. However, when this episode was over, he agreed to be interviewed by Officer Martha Minton. The defendant was advised of his Miranda rights for the second time. Debbie Price and Michael Korvanda, counselors with the Peoria Human Services Center, were present during the interview.

The defendant admitted that he tried to engage in sexual intercourse with Sequana McCall but claimed he received permission from Nellie McCall in “double talk.” He told Minton that although he realized that what he did was not right and was a serious crime, he felt it was alright because he had permission from Nellie. The defendant mentioned “voodoo” and talked about his brother being-involved in the incident.

Pursuant to the State’s motion to have the defendant declared unfit to stand trial, the defendant was -examined by Dr. Mortimer Beck. The parties stipulated to Dr. Beck’s qualifications and his report, which found the defendant unfit to stand trial. The trial court declared the defendant unfit on October 26, 1981, and committed him to Zeller Mental Health Center.

On November 30, 1981, Dr. SoHee Lee of the Zeller Mental Health Center sent the court a letter regarding the defendant’s condition. The doctor found that the defendant recovered from a short-time psychotic episode and that the defendant was fit to stand trial. The parties stipulated to this report on January 22, 1982, during a hearing on the fitness issue. Following the hearing, the trial court found the defendant fit to stand trial beyond a reasonable doubt.

The defendant’s motion to suppress the statements he made to Officers Frazelle and Minton was denied following a hearing. The court found that the defendant had waived his rights. The cause proceeded to a bench trial and the defendant was found guilty but mentally ill.

In the defendant’s first issue on appeal, he claims that the trial court erred when it denied his motion to suppress his statements to the police. He argues that the statement to Officer Frazelle, “I was messing with a six year old girl,” was made pursuant to custodial interrogation which was not preceded by Miranda warnings. Therefore, the statement should have been suppressed.

Custodial interrogation means “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” (Miranda v. Arizona (1966), 384 U.S. 436, 444, 16 L. Ed. 2d 694, 706, 86 S. Ct. 1602, 1612.) A court must look to the circumstances surrounding the questioning and then objectively evaluate whether a reasonable, innocent person would have believed he was in custody. (People v. Savory (1982), 105 Ill. App. 3d 1023, 435 N.E.2d 226.) Traditional investigatory functions of the police, such as general on-the-scene questioning in the fact-finding process, have often been held admissible under Miranda although Miranda warnings were not given beforehand. People v. Thompson (1971), 48 Ill. 2d 41, 268 N.E.2d 369.

The defendant in the instant case was not in custody at the time he made his initial statement to Officer Frazelle. Although the defendant relies on the statement made by the assistant State’s Attorney during the suppression hearing that “it would appear that the defendant was in custody,” we do not find that statement controlling. We also note that the trial court’s primary focus in denying the defendant’s motion to suppress was whether the defendant voluntarily and intelligently waived his constitutional rights.

At the time the defendant made his first statement to Officer Frazelle, he was on a public street during daylight hours. Officer Frazelle saw that the defendant matched the description given on the dispatch. The officer, dressed in a police uniform and driving a marked squad car, drove alongside the defendant, got out of his car, and asked the defendant to come over to him. The defendant complied. At that point, Officer Frazelle had no knowledge of what occurred earlier at the Taft Homes. He was not aware that a crime had been committed. Frazelle inquired of the defendant, “What happened back there?” referring to the Taft Homes. The defendant replied, “I was messing with a six year old girl.” Officer Crowell was also present during this statement but he did not testify. Questions which relate directly to a suspected crime after the officer’s suspicion has been aroused may be permissible as on-the-scene inquiries. People v. Bradford (1981), 97 Ill. App. 3d 998, 423 N.E.2d 1179.

There was no restraint of the defendant prior to his statement. No weapons were drawn. He was not under arrest. The defendant was not in custody when the officer asked an investigatory, non-coercive question meant to clarify a suspicious situation. (People v. Thompson (1971), 48 Ill. 2d 41, 268 N.E.2d 369.) Under these circumstances, Miranda warnings were not required. Once the defendant made his statement, the situation changed from an investigatory one since now the officer was aware that a crime probable had been committed. At that point the defendant was placed under arrest, searched, restrained and apprised of his Miranda rights.

The second issue raised by the defendant is composed of two allegations of error in regards to the trial court’s failure to suppress the defendant’s second statement to Officer Martha Minton at the jail. First, he claims that this later statement was tainted by the constitutional violation which occurred with his statement to Officer Frazelle. Having determined that no constitutional violation occurred with the first statement, the second statement was not tainted.

Second, the defendant claims that he did not knowingly and intelligently waive his rights prior to making his second statement. To determine whether a defendant understood and knowingly waived his constitutional rights, the totality of the circumstances surrounding the confession must be considered. (People v. Avery (1980), 88 Ill. App. 3d 771, 410 N.E.2d 1093.) In reviewing the totality of the circumstances, a preponderance of the evidence must demonstrate that the defendant understood and knowingly waived his rights. (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602; People v. Avery (1980), 88 Ill. App. 3d 771, 410 N.E.2d 1093.) Absent an abuse of discretion, the trial court’s finding on waiver will not be reversed unless it is contrary to the manifest weight of the evidence. People v. Noe (1980), 86 Ill. App. 3d 762, 408 N.E.2d 483.

The defendant asserts that because of his mental condition and low average range of intelligence he could not knowingly and intelligently waive his rights. The determination of whether the defendant knowingly and intelligently waived his rights depends on the facts and circumstances of the case and includes the background, experience and conduct of the defendant. A subnormal mentality does not ipso facto make a confession involuntary where the subnormality has not deprived the defendant of the capacity to understand the meaning and effect of his confession. People v. Henderson (1980), 83 Ill. App. 3d 854, 863, 404 N.E.2d 392, 399.

The totality of the circumstances indicate that the defendant in the case at bar knowingly and intelligently waived his rights. His mental condition was episodic. He waived his rights at a time when he was not hallucinating but had calmed down and relaxed. The defendant was observed throughout the interview by Debbie Price, who had a master’s degree in psychology, and Michael Korvanda, who had a master’s degree in clinical psychology. Both counselors, and Officer Minton, said the defendant was not hallucinating during the interview.

Officer Minton read the defendant his Miranda rights “fairly slowly,” and he responded that he understood them. The defendant admitted that he knew that what he did was not right. He understood he could go to trial and possibly be sent to prison for what he had done. The defendant responded to Officer Minton’s questions. He was able to detail the commission of his acts earlier that day.

The defendant’s mental capacity was in the low average range of intelligence with a full scale IQ of 86. His low average mentality did not interfere with his ability to comprehend the meaning of the Miranda warnings.

Based on the totality of the circumstances, the defendant made a knowing and intelligent waiver of his rights. The trial court did not abuse its discretion in denying the defendant’s motion to suppress the defendant’s statements.

Another issue raised by the defendant concerns his fitness to stand trial. He claims that he was found fit without a full adversarial hearing on the matter.

It is a violation of due process if a person is tried while he is incompetent. (Page v. Robinson (1966), 383 U.S. 375, 15 L. Ed. 2d 815, 86 S. Ct. 836.) A defendant is unfit if, because of his mental or physical condition, he is unable to understand the nature and the purpose of the proceedings against him or to assist in his defense. (Ill. Rev. Stat. 1981, ch. 38, par. 104—10.) Once a defendant has been found unfit to stand trial, he must be restored to fitness before the trial can commence. (Ill. Rev. Stat. 1981, ch. 38, pars. 104—10 et seq.) The defendant is entitled to a fitness hearing when a bona fide doubt exists as to his fitness. People v. Teague (1980), 83 Ill. App. 3d 990, 404 N.E.2d 1054.

The defendant in the instant case had a hearing on the issue of fitness. However, he complains that the hearing was not adequate to protect his rights because the parties stipulated to the report of the doctor that stated he was fit to stand trial.

The submission of the report in lieu of testimony was stipulated to by the defense counsel. He did not object. No showing of prejudice against the defendant has been made. (People v. Shadowens (1969), 44 Ill. 2d 70, 254 N.E.2d 484.) The defendant does not dispute the report.

The defendant was provided with a fitness hearing. He was represented by counsel. The fact that there was a stipulation to the report did not deny the defendant a full adversarial hearing, although we are aware of decisions to the contrary. (People v. Greene (1981), 102 Ill. App. 3d 639, 430 N.E.2d 219; People v. Williams (1980), 92 Ill. App. 3d 608, 415 N.E.2d 1192.) The defendant was properly restored to fitness before trial.

In the defendant’s last issue, he asserts that the trial court erroneously found him guilty but mentally ill. He bases this assertion on what he claims was the State’s failure to rebut his insanity defense beyond a reasonable doubt.

The trial court’s finding that the defendant was legally sane at the time of the offense is not so improbable or unsatisfactory as to create a reasonable doubt of the defendant’s sanity. (People v. Clark (1981), 102 Ill. App. 3d 414, 429 N.E.2d 1255.) The record supports the court’s finding. Although the defendant points to the opinion of Dr. Beck that he believed “there is a valid insanity defense,” the trial court was not required as a matter of law to accept the statement. (In re T.D.W. (1982), 109 Ill. App. 3d 852, 441 N.E.2d 155.) The statement by Dr. Beck was made in a letter to the assistant State’s Attorney over five months after the doctor examined the defendant for competency to stand trial. The doctor indicated that he would want to examine the defendant if he were to testify on the issue.

In view of the evidence, the defendant was properly found to be mentally ill but not insane at the time of the offense.

Based on the foregoing reasoning, the judgment of the circuit court of Peoria County is affirmed.

Affirmed.

SCOTT and HEIPLE, JJ., concur.


author: JUSTICE HOPF

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY MAX VARGAS, Defendant-Appellant.
    Second District
    No. 82—68
    Opinion filed August 2, 1983.

      G. Joseph Weller and Josette Skelnik, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Robert Morrow, State’s Attorney, of Geneva (Phyllis J. Perko and Judith M. Pietrucha, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HOPF

delivered the opinion of the court:

After a bench trial before the circuit court of Kane County, the defendant, Gary Max Vargas, was convicted of armed robbery. (Ill. Rev. Stat. 1981, ch. 38, par. 18—2.) He contends on appeal that the charge should have been dismissed because the State destroyed a tape recording that contained exculpatory information. Alternatively, he urges he should receive a new trial because the State failed to disclose the existence of the exculpatory information that was on the tape. He contends both actions violated the principles of Brady v. Maryland (1963), 373 U.S. 83, 87, 10 L. Ed. 2d 215, 218, 83 S. Ct. 1194, 1196-97. Defendant also raises a question concerning the competency of his trial counsel.

Defendant was charged by indictment with the armed robbery of Evelyn Hammond, a sales clerk at the One-Stop Grocery in Aurora. On August 18, 1981, at the arraignment, defense counsel made an oral motion for preservation of any recordings of conversations regarding the subject case made by the Aurora police department. The court granted the motion and directed the State’s Attorney to make the phone calls necessary to ensure that the tapes would be preserved. Ten days later, at a subsequent hearing, the State indicated that it had made the proper phone calls and defense counsel stated he would make an effort to get the tapes within the week. More than two months later, defense counsel made arrangements to obtain the tapes and learned that they had been destroyed by the Aurora police department. He then moved for dismissal of the charge, urging that the defendant was irreparably damaged and, in the absence of the tapes he would be unable to adequately defend himself. The trial court denied defendant’s motion to dismiss.

The key witness testifying for the State was Evelyn Hammond. She testified that on the afternoon of July 25, 1981, she was working behind the counter in the One-Stop Grocery and noticed an individual that she recognized as one of the Vargas brothers enter the store. At trial she identified that individual as Gary Vargas, defendant. After everyone in the store had left except some young children, Vargas approached the counter brandishing a knife and in a loud voice demanded money. Hammond told Vargas that she knew who he was, that she knew his mother and that he should leave before he got into trouble. Hammond offered to call Vargas’ mother to have her come pick him up. Vargas refused. Vargas then came behind the counter and held the knife one to two inches away from Hammond’s body, repeatedly demanding the money. Hammond believed Vargas was under the influence of something.

Hammond locked the cash register and moved down towards the telephone at the other end of the counter. She told Vargas that she had $2 in her pocket that she would give him if he would leave the store. However, she refused to give him any money from the register and told him that it was not hers to give away. She reached in her back pocket to get the $2 out and Vargas grabbed the money from her hand before she was able to give it to him. Vargas then moved towards the door, tried on some sunglasses, and left the store.

Hammond dialed “911.” The police responded and picked up a suspect approximately a block and a half from the grocery store, one to two minutes after the robbery was reported. Officer Michael Perez testified that he searched defendant and found a wood handle folding knife as well as five $1 bills in defendant’s front pocket. Perez then took Vargas to the One-Stop store where Hammond identified him as the man who had just robbed her. She also identified the clothing Vargas was wearing. The knife recovered by Perez was identified by Hammond at trial and was admitted into evidence.

On cross-examination Hammond indicated that when she called “911” to report the robbery she told the police that Roger Vargas had just robbed the store and he was heading north on South Lake, that he had on cutoff blue shorts, a white muscle shirt, and was carrying a knife. After Hammond revealed this conversation defense counsel moved for a mistrial, arguing that he had never been informed that the complaining witness had initially identified her assailant as Roger, rather than Gary, Vargas and that he was therefore totally unprepared to present an adequate defense under the circumstances. Defendant’s motion was denied.

Officer Robert Theil, a booking officer at the Kane County jail, also testified. He indicated that Vargas was brought to the station and that he processed Vargas and took an inventory of his property. At the time he was brought to the jail Vargas was wearing shorts and a blue sleeveless T-shirt which was identified as a defendant’s exhibit. Written on the T-shirt was “Winning isn’t everything but loosing [sic] is the pits.”

Defendant was found guilty as charged. He filed a post-trial motion, supported by affidavit, contending that the trial court had erred in denying his motion to dismiss due to destruction of the tapes and in denying his motion for a mistrial because it was not until the cross-examination of Hammond that he first learned of her statement that her assailant was Roger Vargas. The assistant State’s Attorney, Brad Swearingen, filed an affidavit in which he averred that he had been informed by Hammond prior to trial that when she called the police to report the crime she initially misnamed the offender as Roger rather than defendant, Gary Vargas. The State filed a counteraffidavit indicating that Hammond also stated that there was no question in her mind that the person she identified in the back of the squad car two minutes after she called the police was the person who had committed the crime.

Defense counsel urged that if he had the information regarding Hammond’s identification of Roger Vargas prior to trial he would have prepared defendant’s defense differently. The State urged that the evidence established merely a misnomer and that it was not required to furnish the evidence because it was not in a written report. The court noted that it did not believe that the complaining witness’ misnomer of the assailant was crucial to defendant’s case. It indicated that it did not believe that the destruction of the tapes caused material prejudice to the defendant. It denied the motion. After the sentencing hearing the court imposed a seven-year sentence.

Defendant’s first contention on appeal is that the destruction of the tapes, which contained exculpatory evidence, requires that the charge against him be dismissed. At trial defendant brought a motion to dismiss on the grounds that, despite a court order to preserve the tapes, the Aurora police department had destroyed all tapes of communications regarding the subject offense. Defendant contends that this amounted to a violation of the rules set forth in the case of Brady v. Maryland (1963), 373 U.S. 83, 87, 10 L. Ed. 2d 215, 218, 83 S. Ct. 1194, 1196-97, which held that suppression by the prosecution of evidence favorable to and requested by the defense violates due process where the evidence is material either to guilt or to punishment, regardless of the good faith or bad faith of the prosecution.

As a corollary to this rule it has been held that there is a duty to preserve evidence favorable to a defendant. (United States v. Bryant (D.C. Cir. 1971), 439 F.2d 642; People v. Moore (1978), 61 Ill. App. 3d 694, 701, 378 N.E.2d 516, 521.) This duty of the prosecution has been recognized as an outgrowth of the prosecution’s links to law enforcement agencies (People v. Ruffalo (1979), 69 Ill. App. 3d 532, 536, 388 N.E.2d 114), which gives the prosecution an advantage in obtaining evidence.

Dismissal of the charges as a sanction is not required in every situation in which evidence is destroyed. (People v. Steptoe (1976), 35 Ill. App. 3d 1075, 1079, 343 N.E.2d 1, 4.) Courts have inherent authority to dismiss criminal charges where due process has been denied. (People v. Lawson (1977), 67 Ill. 2d 449, 456, 367 N.E.2d 1244.) However, after careful consideration of the record on appeal, we conclude that defendant’s due process rights were not violated by reason of the State’s suppression and nondisclosure of the requested evidence.

To show a violation of Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, defendant must show (1) that the evidence was exculpatory and favorable to him; (2) that the prosecution failed to disclose evidence in response to a specific request; and (3) that the evidence was material. People v. Post (1982), 109 Ill. App. 3d 482, 489, 440 N.E.2d 631.

The State denies that the destroyed tape contained evidence that was exculpatory. Contrary to this assertion, however, it is fairly clear that the evidence was favorable to defendant. Hammond, the complaining witness, testified that she called the police and identified Roger Vargas as the robber. This reflects directly on her identification of the man who robbed her. Thus, regardless of whether her statement is considered a misnomer or a misidentification, it was exculpatory.

Defendant also met the second requirement set forth above, in that he specifically requested the evidence from the State, and contrary to the court’s specific order the State failed to produce it, though as discussed below, a summary of the tape was available.

Our review of the record leads us to believe that defendant failed to meet the third requirement, in that the evidence was not shown to be material. The proper standard of materiality requires that the omission of the evidence be evaluated in the context of the entire record, and if there is no reasonable doubt about defendant’s guilt regardless of that evidence, there is no justification for a new trial. (United States v. Agurs (1976), 427 U.S. 97, 112-13, 49 L. Ed. 2d 342, 354-55, 96 S. Ct. 2392, 2401-02.) Though Agurs was a case where the omitted evidence was not specifically requested by the defense, its test for materiality has been applied to cases where specific evidence was requested in discovery. People v. Post (1982), 109 Ill. App. 3d 482, 440 N.E.2d 631; People v. Bruno (1979), 68 Ill. App. 3d 768, 386 N.E.2d 550.

Despite the fact that the State violated the discovery order requiring preservation of the tapes, it appears that there was some compliance with defendant’s request. The record reveals that the court file, pursuant to defendant’s subpoena duces tecum, contained a computer printout summarizing the telephone conversation complainant made from the One-Stop grocery to the Aurora police station. It provided:

“SUBJECTS NAME IS ROGER VARGAS HES WIPED OUT VERY HIGH N ON LAKE ST HAD A KNIFE IN HIS POSSESSION. [Sic.]”

The existence of this summary, which was available to defense counsel, together with the fact that defense counsel was able to bring the conversation out on cross-examination, substantially minimizes any prejudice. Assuming that defendant would play the tape in court, it is likely it would reveal nothing other than what Hammond testified to at trial — that she initially called the defendant Roger. While this mistake is relevant to her identification of defendant, it is not dispositive of all issues raised. In considering whether the prejudice suffered by defendant was so severe as to warrant a new trial or discharge, the question that must be asked is whether the evidence could have been exculpatory in light of the overall evidence presented in the case. People v. Ruffalo (1979), 69 Ill. App. 3d 532, 538, 388 N.E.2d 114, 118.

The evidence adduced in the instant case strongly militates against defendant’s position. It showed that Hammond had been robbed by a man whose family she was familiar with, the robber was in the store a few minutes and she spoke face to face with him, and after he left the store Hammond called the police and told them her assailant was heading north on Lake Street. The evidence showed that within about two minutes defendant was found a block and a half north of the store with a knife in his pocket and when he was brought back to the store Hammond positively identified him as her assailant. Thus, in light of all this evidence, the fact Hammond called defendant by the name Roger soon after the incident was a discrepancy that the court could easily find to be unimportant. In light of Hammond’s subsequent positive identification of defendant at the scene of the crime, and at trial, Hammond’s testimony was sufficient to support the conviction. People v. Clarke (1971), 50 Ill. 2d 104, 110, 277 N.E.2d 866.

Defendant urges that where intentional destruction of favorable material is established, he need not establish that he was prejudiced by the missing evidence. However, this principle applies to intentional withholding or destruction of evidence. (People v. Ruffalo (1979), 69 Ill. App. 3d 532, 537, 388 N.E.2d 114; People .v. Dixon (1974), 19 Ill. App. 3d 683, 688, 312 N.E.2d 390; People v. Parton (1976), 40 Ill. App. 3d 753, 354 N.E.2d 12.) In the instant case it is possible that the evidence was destroyed inadvertently rather than in bad faith or intentionally. Defense counsel waited more than two months between the time when the evidence was ordered to be preserved and the time when he checked on obtaining copies of the tapes. Although this delay is no excuse for the destruction of the tapes, it does show a lack of diligence that may have contributed to their destruction. If defense counsel had sought the tapes earlier, as he said he would, they may have been available at that time.

Because there is no reasonable doubt about defendant’s guilt, whether or not the additional evidence is considered, there is no justification for a new trial. (United States v. Agurs (1976), 427 U.S. 97, 113, 49 L. Ed. 2d 342, 355, 96 S. Ct. 2392, 2402.) Considering the evidence as a whole, there was ample evidence for the trial court to be convinced of defendant's guilt beyond a reasonable doubt.

Defendant also contends as a separate issue that the State’s failure to advise him of the contents of the tape entitles him to a new trial. He contends that because he specifically requested that the communication tapes made by the Aurora police department be preserved for use in his defense and because the information on those tapes was not disclosed to defendant until it came out on the cross-examination of witness Hammond, the dictates of Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, were not complied with. This contention is closely linked with the issue of the destruction of the tapes.

The record shows defendant requested that the tapes be preserved for use at trial and the State was aware of the contents of the tape prior to trial. Relying on United States v. Agurs (1976), 427 U.S. 97, 106, 49 L. Ed. 2d 342, 351, 96 S. Ct. 2392, 2399, defendant urges that “[w]hen the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable.” However, unlike the situation contemplated by the court in Agurs, in the case at bar the State did make a response to defendant’s request. As previously mentioned the court file contained a computer printout which summarized complainant’s call to the police. Apparently defense counsel was unaware that this information was in the court file. Defendant contends that the State had a duty to make this information known to him. However, it is also true that defense counsel should have been cognizant of the court file contents, especially where the computer printout was specifically requested by the defendant during discovery.

Defendant contends that if he had knowledge of the contents of the tape prior to trial it would have dramatically altered his trial strategy. However, even if it is assumed that defense counsel was taken by surprise, the standard to be applied in determining whether the delay in disclosure violated due process is whether the delay prevented defendant from receiving a fair trial. In the event disclosure of the evidence is made before it is too late for defendant to make use of any benefits of the evidence, it has been held that due process is satisfied. United States v. Allain (7th Cir. 1982), 671 F.2d 248, 255; United States v. Ziperstein (7th Cir. 1979), 601 F.2d 281, 291, cert. denied (1980), 444 U.S. 1031, 62 L. Ed. 2d 667, 100 S. Ct. 701.

Defense counsel in the instant case made thorough use of the Hammond phone conversation at trial. Therefore, even if the prosecutor failed in its duty of disclosing that evidence, defendant did not suffer and his due process rights were not violated.

In connection with defense counsel’s apparent failure to make use of the computer printout in the court file, defendant raises the contention that he was denied the effective assistance of counsel. Specifically, he urges that the failure of his counsel to adequately prepare and discover the evidence favorable to defense constitutes ineffective assistance. (People v. Stepheny (1970), 46 Ill. 2d 153, 263 N.E.2d 83.) However, in light of our determination that defendant received a fair trial when all the evidence is considered, the substantial prejudice requirement of People v. Stepheny (1970), 46 Ill. 2d 153, 157, 263 N.E.2d 83, has not been met.

We have evaluated the prejudice suffered by reason of certain evidence being partially omitted from defendant’s trial and determined that within the context of the entire record defendant received a fair trial and there is no reasonable doubt concerning his guilt. (United States v. Agurs (1976), 427 U.S. 97, 112-13, 49 L. Ed. 2d 342, 354-55, 96 S. Ct. 2392, 2401-02.) Nonetheless we are compelled to comment on the propriety of the prosecutor’s failure to comply with the spirit, if not the letter, of Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, and its progeny. It must be recognized that society wins not only when the guilty are convicted but when the accused receives a fair trial. As Justice Douglas opined in Brady v. Maryland:

“A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice, even though, as in the present case, his action is not ‘the result of guile,’ to use the words of the Court of Appeals. 226 Md, at 427.” 373 U.S. 83, 87-88, 10 L. Ed. 2d 215, 219, 83 S. Ct. 1194, 1197.

Were it not for the overwhelming evidence of defendant’s guilt in this case, we would be compelled to reverse. Accordingly, the judgment of the circuit court of Kane County is affirmed.

Affirmed.

LINDBERG and NASH, JJ, concur.