author: JUSTICE JOHNSON JUSTICE LINN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DeWAYNE MOORE, Defendant-Appellant.
    First District (4th Division)
    No. 80-1232
    Opinion filed December 17, 1981.

      LINN, J., dissenting.

      Ralph Ruebner, of State Appellate Defender’s Office, and Silets and Martin, both of Chicago (Shelly B. Kulwin and William K. McVisk, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Jannice K. Kandell, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

After a jury trial, defendant, DeWayne Moore, was convicted of murder, armed robbery and armed violence. (Ill. Rev. Stat. 1979, ch. 38, pars. 9 — 1,18—2,33A—2.) He was sentenced to serve concurrent terms of 40 years for murder and 15 years for each of the other convictions. On appeal, defendant contends that he was denied his sixth amendment rights to the effective assistance of counsel; that he was denied a fair trial by the introduction of evidence of other crimes; and, in a supplemental brief, that the trial court erred in failing to tender a voluntary manslaughter instruction submitted by defense counsel.

We reverse.

At the preliminary hearing, Mrs. Bok Kim, the wife of the proprietor of the Song Wig Shop at 3515 South Halsted Street in Chicago, testified with the aid of a Korean interpreter. She stated that defendant came into the store about 3:30 p.m. on November 24, 1978, and looked at some merchandise. He then pushed her brother-in-law, Hun Chong Kim, into the corner, pulled a gun from his pocket and took necklaces and other jewelry from the showcases. Mrs. Kim grabbed defendant and called for help. Her husband, Chong Kim, came in from the back of the store and grabbed defendant before defendant shot him twice. Two men then came into the store and defendant was arrested. She stated that her husband did not have a gun when he came into the store, that she did not know whether he touched defendant’s gun, and that he was shot at close range.

Prior to trial, defense counsel filed a motion to suppress oral incriminating statements made by the defendant while he was in custody, as well as certain physical evidence which was seized by the police when defendant was apprehended. He later withdrew the motion and filed a demand for trial. The State filed a motion in limine to bar the defense from using an exculpatory statement made by defendant that the shooting was accidental, and this motion was granted by the court.

At trial, Mrs. Kim, through a Korean interpreter, testified to the events which transpired at the shop on November 24,1978; She stated that defendant entered the store about 4 p.m. where she was working alone. Her husband, their three minor children and her brother-in-law were in the rear of the store. Mrs. Kim stated that while she was waiting on defendant, three women came into the shop. She then requested her brother-in-law to come to the front and assist. Thereafter, two more people came into the store. All of the customers left except defendant who continued to inquire about the prices of necklaces and sunglasses. Mrs. Kim and defendant also had a conversation concerning placing initials on the sunglasses, and Mrs. Kim told him that she would put them on at no extra charge. Defendant placed the necklaces around his neck and tried on the sunglasses. He then told her brother-in-law to move to one side, pulled a gun from his coat pocket and took gold necklaces and bracelets from the showcases.

Defendant then turned around and Mrs. Kim grabbed him from behind on the upper part of the arm. They struggled for several seconds and she called her husband for help. Defendant then bit her arm. When her husband entered, defendant turned around and shot him from a distance of 5 or 6 feet. As the victim fell forward, he grabbed defendant’s arm and defendant shot again. Mrs. Kim then released one of defendant’s arms and called for help. Two unidentified men responded and she told them that defendant shot her husband. The three of them detained defendant until police arrived moments later.

Mrs. Kim further testified that her husband did not have a chance to touch the gun and that no one but defendant handled the weapon before the shooting. She also identified the necklaces taken from defendant as those she had shown to him in the store.

Hun Chong Kim, who also testified through a Korean interpreter, corroborated this sequence of events. He stated that he was in the store with Mrs. Kim when defendant tried on the sunglasses, then pulled out a gun and threatened the two of them. Defendant pushed him aside, held the gun in one hand and opened the showcase and took jewelry with the other. Mrs. Kim called for help, and as soon as Mr. Kim came into the store defendant fired a shot. Defendant and Mr. Kim stood about 5 or 6 feet apart at the time of the shooting. The witness stated that he heard two shots and did not see anyone but defendant touch the gun.

Police youth officers Ronald Mainellis and Mary Dahl testified that they were on patrol in their squad car about 4 p.m. on November 24,1978, when they were flagged down by a citizen at 35th and Halsted Streets who told them there was a man in the store with a gun. They pulled their vehicle up to the store where they observed a male with blood on his shirt coming out of the store saying that he had been shot. Officer Mainellis proceeded inside and observed Mrs. Kim, defendant and two other males struggling just inside the door. The officer apprehended defendant and noticed that he was wearing a glove on his left hand. Mrs. Kim told the officer that defendant was the man who shot her husband. Defendant was then handcuffed and placed in the squad car where Dahl also observed that he was wearing a glove on his left hand. Officer Dahl attempted to steady the victim and asked him whether the man in the car was the person who shot him. The victim answered in the affirmative. A small child approached Mainellis and handed him a gun recovered from the doorway area; Mrs. Kim handed him two small gold bracelets and a set of keys which she found on the floor. Defendant was then taken to the station where police removed four necklaces from his neck, and a pocket watch, two rings, a cigarette lighter, two other watches and $3.35 in currency from his person.

Officer Bunk stated that he received a set of keys from Officer Mainellis at the station, and he and his partner returned to the scene of the crime. They located a car illegally parked in an alley behind 3529 South Halsted Street and the keys received from Mainellis fit this car. A subsequent vehicle check revealed that the car was registered to defendant.

The chief medical examiner of Cook County testified that he performed an autopsy on the body of Chong Kim, and in his opinion the cause of death was a bullet wound to the abdomen which also involved the lung, liver and spleen. He also conducted a visual examination of the clothing worn by the victim and found a hole which corresponded to the bullet wound in the body, but he did not see any powder burns or stripplings.

Donald Gunnell of the Chicago Police Department Criminalistics Division testified that he examined the weapon which was recovered from the scene. In his opinion, the bullet retrieved from the body of the victim was fired from this weapon. He stated that the two expended cartridges found in the store were also fired from the same weapon.

The defendant testified that he was 19 years of age. He entered the Song Wig Shop about midafternoon on November 24,1978, after parking his car at 31st and Halsted. He looked at some jewelry and sunglasses and had a conversation with Mrs. Kim about having his initials put on the sunglasses and on a cigarette lighter. She agreed to put his initials on both items at no extra charge if he purchased the sunglasses. Defendant then looked at the necklaces and started to go out of the store to get his cigarette lighter from his car when Mrs. Kim grabbed him and began screaming in Korean. Mr. Kim then came out of the back with a gun in his hand and walked quickly up to defendant. Defendant grabbed the gun because he was afraid Mr. Kim would shoot him. A struggle ensued and the gun discharged twice. Two males then entered the store and held him, but defendant stated that he was not attempting to leave. He also stated that he had driving gloves in his coat pocket when he entered the store and had the right-hand glove in his possession when he arrived at the police station.

On cross-examination, defendant stated that he was wearing his own personal jewelry when he entered the store and that he had $35 in his possession which was taken by the police at the station. He admitted that he was wearing two digital watches, two bracelets and two rings, and had a pocket watch and keys in his possession. He stated that he purchased two of the watches and two of the chains on Maxwell Street and received the other two chains from his former girlfriend. With regard to the shooting, defendant stated that Mr. Kim was holding the gun in his hand as he came up to defendant. They wrestled with the gun; when the actual shot was fired, Kim was holding the gun and shot himself in the chest. Over defense counsel’s objection, defendant, with the aid of a deputy sheriff, demonstrated how the shooting occurred. Defendant stated that when Kim was about 3 feet away from him, he grabbed the gun and tried to hit it against the wall so it would fall out of his hand. When the shot was fired, Kim’s arm was pointed toward his own body. They continued to struggle with the gun after Kim was shot. Defendant denied having a gun, taking any necklaces out of the showcase, putting any on his neck, or wearing a glove. He also stated that all of the prosecution’s witnesses were lying.

Officer Mainellis testified in rebuttal that when he apprehended defendant inside the store defendant was wearing a glove on his left hand. He also stated that he recovered a cigarette lighter from one of defendant’s pockets at the station and $3.35 in currency as reported on the inventory slip prepared by his partner while he was present.

Officer Quinn testified that he was assigned to investigate the homicide in question. After defendant was advised of his constitutional rights, he acknowledged that he understood them, then stated that he found the gun on the previous day when he was driving in an alley and knocked over a garbage can. When he exited his car to inspect the damage, under the can he found a loaded gun which he brought with him to the wig shop. He also stated that he did not mean to shoot, but during the struggle to get out of the store he accidentally shot Mr. Kim. Defendant also told him that he had seen a similar incident on television the night before.

During the jury conference, defense counsel offered an instruction on voluntary manslaughter which was objected to by the prosecution. The court refused the instruction after a finding that there was no evidence to support it; however, an instruction was given on the justifiable use of force. The jury returned a verdict of guilty on the charges of murder, armed violence and armed robbery. Motions for a new trial and in arrest of judgment were subsequently denied, and defendant now appeals.

Defendant first contends he was deprived of his sixth amendment right to the effective assistance of counsel. He claims that his court-appointed counsel was ill-prepared and the representation he received was merely perfunctory.

It is well settled that in order to establish incompetence of court-appointed counsel, a defendant must demonstrate that his counsel was actually incompetent, as manifested in the performance of his duties as a trial attorney, which resulted in substantial prejudice to the defendant without which the outcome of the trial would probably have been different. (People v. Greer (1980), 79 Ill. 2d 103, 120-21, 402 N.E.2d 203, 211; People v. Talley (1981), 97 Ill. App. 3d 439, 443, 422 N.E.2d 1084, 1088.) Competency of counsel is determined from an examination of the totality of counsel’s conduct at trial (People v. Murphy (1978), 72 Ill. 2d 421, 437, 381 N.E.2d 677, 685); however, our review of counsel’s competency does not extend to those areas involving the exercise of judgment, discretion or trial tactics (People v. Witherspoon (1973), 55 Ill. 2d 18, 22, 302 N.E.2d 3, 5).

Defendant alleges that counsel’s incompetence is demonstrated by his failure to have the voir dire proceedings transcribed. While conceding that the mere waiver of a record of the voir dire does not constitute actual incompetence (People v. Gordon (1980), 82 Ill. App. 3d 906, 912, 403 N.E.2d 570, 575), he claims that the failure to do so precluded him from preserving any issues on appeal that might arise out of improprieties that occurred during the voir dire, and evidences counsel’s unwillingness to have his lack of preparation discovered by subsequent counsel. We find both of these contentions without merit. In People v. Hines (1981), 94 Ill. App. 3d 1041, 1052, 419 N.E.2d 420, 428, this court rejected a similar argument that incompetence must be assumed from the absence of a record of the voir dire; and defendant’s allegation that trial counsel did not record the proceedings in order to hide his lack of preparation amounts to mere conjecture and speculation which is insufficient to establish prejudice warranting reversal. People v. Thomas (1972), 51 Ill. 2d 39, 44, 280 N.E.2d 433, 436.

Defendant also argues that trial counsel’s failure to attempt to prevent the State’s exclusion of blacks from the jury is further evidence of his incompetence, and without a record of the proceedings defendant is precluded from raising the matter of the “systematic exclusion” of blacks from the jury. This matter was raised and rejected at the hearing on defendant’s motion for a new trial, and the record before us does not substantiate defendant’s claims. We note that defendant has not availed himself of the opportunity to reconstruct the record as provided by Supreme Court Rules 323(c) and 612(c) (Ill. Rev. Stat. 1979, ch. 110A, pars. 323(c), 612(c)), and without an adequate record we cannot further consider defendant’s contentions in this matter. People v. Gordon (1980), 82 Ill. App. 3d 906, 913.

Defendant also alleges that numerous errors were committed by him during counsel’s cross-examination of the prosecution’s witnesses. Defendant first cites the meaningless examination of three of these witnesses, waiver of cross-examination of the arresting officer, and the failure to discover if any statements had been made by other individuals who were present in the area at the time of the occurrence. We have considered each of these allegations and find them to be matters of judgment and trial strategy which do not establish incompetency. (See People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677.) We have also reviewed defendant’s allegations concerning counsel’s failure to attempt to impeach Mrs. Kim with the statement she made at the preliminary hearing regarding the distance between defendant and her husband at the time of the shooting. We have concluded, however, that this may also be considered a matter of trial tactics and does not necessarily indicate that counsel was not prepared or actually incompetent. (See People v. Stein (1977), 51 Ill. App. 3d 421, 366 N.E.2d 629.) We bear in mind that defendant is entitled to competent, but not perfect representation (People v. Murphy (1978), 72 Ill. 2d 421, 438), and in establishing actual incompetence a defendant cannot rely upon speculation as to the outcome of his case if the representation had been of a higher quality (People v. Thomas (1972), 51 Ill. 2d 39, 44). Furthermore, the fact that another attorney in the better light of hindsight might have handled the trial in a different manner is not an indication of incompetence. People v. Robinson (1979), 70 Ill. App. 3d 24, 27, 387 N.E.2d 1114, 1116.

Defendant next contends that counsel’s incompetence was demonstrated by his failure to object to evidence of other crimes. He refers to the testimony given by the arresting officer regarding the items of jewelry taken from defendant at the time of his arrest. The record reveals that counsel reserved his objections on this matter until the State moved to admit these items into evidence. At that time he argued strenuously and successfully precluded the entry of several of these items. It is generally held that decisions on when and what objections should be interposed are matters of trial strategy (People v. Grant (1976), 38 Ill. App. 3d 62, 70, 347 N.E.2d 244, 251), and incompetence is not established by the mere failure to object to evidence even if it is inadmissible (People v. Murphy (1978), 72 Ill. 2d 421, 438; People v. Bell (1981), 95 Ill. App. 3d 803, 806, 420 N.E.2d 497, 500). Defendant further contends, however, that this error was compounded when defense counsel questioned defendant about several of the items and the prosecution conducted an extensive cross-examination on all of them. This was clearly a matter of trial strategy and did not constitute incompetence. (People v. Watson (1981), 98 Ill. App. 3d 296, 301, 424 N.E.2d 329, 334.) After reviewing the record as a whole, and in light of the overwhelming evidence against defendant, we do not believe that he was prejudiced by the representation he received so that the outcome of the trial would probably have been different. See People v. Scott (1981), 94 Ill. App. 3d 159, 418 N.E.2d 805.

Defendant’s second contention is that he was denied a fair trial by the introduction of evidence of other crimes. It is well settled that evidence of other crimes committed by defendant, other than the one for which he is being tried, is inadmissible; however, evidence of other crimes is admissible if relevant for any purpose other than to show a propensity to commit a crime. (People v. Baptist (1979), 76 Ill. 2d 19, 27, 389 N.E.2d 1200, 1204.) Evidence which constitutes a narrative regarding the crime and defendant’s arrest may be admitted into evidence even though it suggests other criminal activity. (People v. Hagen (1978), 63 Ill. App. 3d 944, 948, 380 N.E.2d 954, 957; People v. Longstreet (1974), 23 Ill. App. 3d 874, 881, 320 N.E.2d 529, 533.) The record discloses that in his testimony the arresting officer related the items which were found on defendant at the time of his arrest. Defense counsel did not object to this testimony at the time but did object to the admission of these items into evidence and moved for a mistrial. The trial court sustained defendant’s objection to the admission of the rings, watches, bracelets and lighter, ruling that they had no probative value. However, the trial court determined that there were no grounds for a mistrial since the evidence presented by the police officer was permissible, and, further, that no objections had been raised during direct examination. We find no error in this ruling.

Defendant then testified as to his ownership of the cigarette lighter, gloves, coat and necklaces. The prosecution then delved into these matters on cross-examination, and also questioned defendant on items which had been ruled inadmissible. Over defense objections, the trial court allowed the prosecution to pursue this line of cross-examination for purposes of impeaching the credibility of the witness. In testifying in his own behalf, defendant was subject to legitimate cross-examination by the State, and the extent of this cross-examination rested in the sound discretion of the trial court. (People v. Williams (1977), 66 Ill. 2d 478, 487, 363 N.E.2d 801, 805.) Since defendant placed his credibility at issue by taking the stand, we do not believe that it was error to allow the cross-examination for impeachment purposes. People v. Brown (1976), 41 Ill. App. 3d 641, 647, 354 N.E.2d 602, 608.

References were made to defendant’s testimony regarding these items during closing argument, and defendant also claims that they prejudiced his right to a fair trial. We find no merit in this contention. The reference to defendant’s affinity for jewelry was a proper inference to be drawn from the evidence and, therefore, a legitimate subject of comment by the prosecution (see People v. Cross (1981), 96 Ill. App. 3d 268, 421 N.E.2d 262), and the jury was admonished that argument must be based on the evidence. In order for remarks to be considered reversible error, the comments must result in substantial prejudice to the accused (People v. Nilsson (1970), 44 Ill. 2d 244, 248, 255 N.E.2d 432, 434). Our review indicates that this is not such a case, and that defendant was not denied his right to a fair trial because of the testimony and comments on the jewelry.

Defendant’s final contention is that he was deprived of a fair trial by the court’s refusal to tender a voluntary manslaughter instruction to the jury which was submitted by his counsel. He maintains that by giving a self-defense instruction the court demonstrated that defendant’s testimony was sufficiently credible to allow the jury to believe that he acted in self-defense and was thus required to give the voluntary manslaughter instruction. In support of his contention, defendant cites People v. Lockett (1980), 82 Ill. 2d 546, 553, 413 N.E.2d 378, 382, where the supreme court stated that when the evidence supports submission of an instruction on the justifiable use of force, a tendered Illinois Pattern Jury Instruction, Criminal, No. 7.05 (1968) (hereinafter cited as IPI Criminal) on voluntary manslaughter should also be given. The State responds that the trial court properly refused the instruction concerning voluntary manslaughter since there was no evidence to support it.

When there is evidence of record in a homicide case which, if believed by the jury, would reduce the crime to manslaughter, a manslaughter instruction should be given. People v. Lockett (1979), 75 Ill. App. 3d 183, 185, 394 N.E.2d 38, 40.

Several Illinois court opinions have held that if the evidence supports a self-defense instruction, as in this case, it will also support a voluntary manslaughter instruction. (People v. Lockett (1980), 82 Ill. 2d 546, 551, 413 N.E.2d 378, 381; see People v. Wright (1974), 24 Ill. App. 3d 536, 321 N.E.2d 52; People v. Zertuche (1972), 5 Ill. App. 3d 303, 306, 282 N.E.2d 201, 203; People v. Johnson (1971), 1 Ill. App. 3d 433, 435, 274 N.E.2d 168, 170.) We agree with the rule stated in those cases. In People v. Dortch (1974), 20 Ill. App. 3d 911, 914, 314 N.E.2d 324, 326, it was stated:

“This rule is applicable even if the theory of defense is inconsistent with the possibility that the defendant is guilty of the lesser crime. [Citations.] A defendant in a criminal case is entitled to have the jury consider any legally recognized defense theory which has some foundation in the evidence, however tenuous. [Citations.] Very slight evidence on a theory of defense will justify the giving of an instruction. {Citation.]”

Section 9 — 2(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 2(b)) provides that a person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing, but his belief is unreasonable. IPI Criminal No. 7.05 would have instructed the jury to that effect.

After carefully reviewing the record, we believe that the trial court erred in refusing the tendered instruction. The jury could have concluded from all the evidence before it, despite some inconsistencies in defendant’s testimony, that defendant killed Kim in the unreasonable belief that he was justified in doing so. Since the evidence was conflicting, it was for the jury, with the benefit of proper instructions, to decide whether the killing was murder or manslaughter or justified as self-defense. (People v. Dortch (1974), 20 Ill. App. 3d 911, 913.) We, therefore, must reverse and remand this cause for a new trial.

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

Reversed and remanded.

ROMITI, P. J., concurs.

JUSTICE LINN,

dissenting:

I respectfully dissent. Even assuming that the approach taken by the majority is correct, and that it was error for the trial court to refuse defendant’s instruction on voluntary manslaughter after tendering an instruction on self-defense, I do not believe that the omission requires reversal in light of the verdicts rendered by the jury. In addition to being found guilty of murder, defendant was also found guilty of armed robbery and armed violence. This indicates that the jury believed that defendant was the person who was armed with the gun and disbelieved defendant’s version of the events since he had testified that after Mrs. Kim grabbed him by the arm, Mr. Kim entered the store armed with a gun, and in the struggle that ensued, Mr. Kim accidentally shot himself in the chest.

In People v. Negron (1979), 77 Ill. App. 3d 198, 395 N.E.2d 1055, decided by this court, the defendant was charged in a multicount indictment and found guilty of murder and robbery. On appeal, defendant contended, inter alia, that the failure of the trial court to give instructions to the jury sua sponte on the justifiable use of force was plain error. In that opinion this court commented that in finding the defendant guilty of robbery, “the jury effectively precluded any possibility that defendant’s use of force with (and murder of) the victim was justified,” and consequently that even if the trial court erred in not instructing the jury, the failure could not have deprived the defendant of a fair trial. 77 Ill. App. 3d 198, 206.

I find this reasoning applicable to the instant case. The instruction tendered by the defendant indicated that he was relying on section 9 — 2(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 2(b)). This section applies to one who intentionally and knowingly kills another under an unreasonable belief that the killing was necessary in order to defend himself. (People v. Purrazzo (1981), 95 Ill. App. 3d 886, 420 N.E.2d 461.) In finding the defendant guilty of armed robbery and armed violence the jury determined that defendant was the one who was armed, obviously disbelieved defendant’s claims that he was threatened by the proprietors of the store, and rejected any theory of self-defense. The verdicts also indicate that the jury determined that the killing took place during the commission of a forcible felony, and that defendant was guilty of murder.

Therefore, in addition to my belief that the evidence presented in the trial court clearly did not support an instruction for voluntary manslaughter, I also find, in light of the verdicts returned by the jury, that the outcome would have been the same even had the instruction been given. Furthermore, in view of the overwhelming evidence of defendant’s guilt found in the testimony given by the State’s witnesses along with the physical evidence that was presented, and considering the testimony given by defendant, I believe that any error in failing to submit the instruction on voluntary manslaughter was harmless. (See People v. Jones (1979), 81 Ill. 2d 1, 405 N.E.2d 343.) I would affirm the convictions.


source: Caselaw Access Project

author: JUSTICE LINN JUSTICE JOHNSON,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MELVIN LAVINDER, Defendant-Appellant.
    First District (4th Division)
    No. 80-1842
    Opinion filed December 17, 1981.
    Rehearing denied January 19, 1982.

      JOHNSON, J., dissenting.
    Ralph Ruebner and Gordon Berry, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr and Warren A. Zimmerman, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant, Melvin Lavinder, was found guilty of armed robbery and attempted murder (Ill. Rev. Stat. 1979, ch. 38, pars. 18 — 2, 8 — 4, 9 — 1). Defendant was sentenced to concurrent prison terms of 25 years for each conviction. A codefendant, Larry Johnson, was found not guilty.

Defendant appeals, contending reversible error occurred in that (1) the prosecution’s peremptory challenge of all six black prospective jurors in the venire was constitutionally improper; (2) there was no probable cause for defendant’s arrest; and (3) the accumulation of other trial errors, including the prosecutor’s asking a question intended to elicit hearsay testimony, and admission of testimony that suggested defendant had committed another crime, denied him a fair trial.

We affirm.

Facts

The complaining witness, Richard Reges, testified that at about 1:30 a.m. on June 16,1979, he parked his car across the street from his house in Calumet City, Illinois. As he walked toward his house, the defendant, a black man, ordered him to turn around, pointed a pistol at his chest, and demanded his wallet and change. Reges complied with defendant’s demands. Defendant then ran to a car parked down the street, fired a shot at Reges, and jumped into the passenger side of the car, which was driven away by another man.

Reges got into his car and gave chase. The defendant fired twice more at Reges during the chase. One shot struck the headlight of Reges’ car and the other struck the windshield. Glass from the broken windshield lodged in Reges’ eye, but did not seriously injure him.

The auto chase ended at 130th Street near Torrence Avenue, where Chicago police were disbursing a crowd at a drag race. Reges alerted one of the officers in a squad car, pointed to defendant’s car in front of him, and told the officer, “Those guys up there just shot me.” The police officer got out of his squad car, and as he did so defendant and his companion got out of their car and ran into the crowd. Shortly thereafter, an unidentified spectator at the drag race approached the police officer and told him that the two men he was chasing had got into another car belonging to the spectator’s friend. The police officer radioed an alarm, and within a few minutes defendant and his companion were apprehended. They were taken to a nearby police station. At a lineup, Reges identified defendant as his assailant.

The police found a fully cocked revolver in the automobile from which defendant and his companion had run at 130th and Torrence. The revolver contained three live rounds and three spent casings. Defendant’s fingerprints were lifted from the left outside mirror of the car. The keys to the car had been found in the back seat of the second car, in which defendant and his companion were arrested. In due course, defendant was charged.

During jury selection, the State exercised peremptory challenges against all six black persons in the group of prospective jurors. The State peremptorily excused only one white prospective juror. Defense counsel moved to strike the entire venire “based on the fact that the two State’s Attorneys systematically used their peremptory challenges to excuse all the blacks from the panel.” Defense counsel asserted that the State’s use of peremptory challenges against all black persons who were prospective jurors was constitutionally impermissible and denied defendant, a black person, a fair jury trial. Defense counsel identified for the record the black prospective jurors who had been peremptorily challenged by the State. After the State’s denial that it was engaged in selective and systematic exclusion of blacks, the trial court denied defense counsel’s motion to strike the venire. Jury selection was completed, and the trial proceeded.

Opinion

I

Defendant first argues that he was effectively denied his constitutional right to a fair jury trial. Defendant urges that while there is a presumption that in the jury selection procedure the State’s peremptory challenges were exercised in a constitutionally permissible manner, the record of the selection process made by defense counsel rebuts that presumption. After the six black prospective jurors in the venire were struck by the State, defense counsel made a motion to strike the venire based on the State’s use of peremptory challenges to excuse all the blacks from the panel. He then stated for the record that defendant is black and the victim is white. Counsel named all the blacks excused by the State, claiming they were struck on the sole basis of race. Defendant argues that the burden was thus shifted to the State to demonstrate that the black prospective jurors were not challenged improperly because of “group affiliation.” Defendant contends that this burden was not met by the State, which made no showing of its reasons for excusing these prospective jurors, and that consequently his conviction should be reversed.

Defendant’s argument is based primarily on a decision of the Supreme Court of California, People v. Wheeler (1978), 22 Cal. 3d 258, 583 P. 2d 748, 148 Cal. Rptr. 890. Wheeler held that the use of peremptory challenges on the sole ground of group affiliation violated the California State constitutional right to a jury drawn from a representative cross-section of the community. Under Wheeler, where a defendant believes the State is using its peremptory challenges to strike jurors on the ground of group bias alone, he must make out a prima facie case of such discrimination as follows:

“First, * * * he should make as complete a record of the circumstances as is feasible. Second, he must establish that the persons excluded are members of a cognizable group 9 * *. Third, from all the circumstances of the case he must show a strong likelihood that such persons are being challenged because of their group association rather than because of any specific bias.” (22 Cal. 3d 258, 280, 583 P.2d 748, 764, 148 Cal. Rptr. 890, 905.)

The California court listed as relevant evidence to establish the foregoing the fact that the State peremptorily struck most or all of the members of the group in question (blacks); used a disproportionately large number of peremptory challenges against the group; or asked group members few or no questions during voir dire. Other relevant factors are that the only common characteristic of the challenged jurors was their group membership, that the defendant was a member of the excluded group, and that the victim was a member of the same group as the majority of the jurors.

Under Wheeler, where the defendant makes a prima facie showing of discriminatory use of the peremptory challenge, the burden then shifts to the State to rebut it. If the prosecution fails to rebut the defendant’s showing, a new jury must be selected. Because the defendant in Wheeler was convicted by a jury which the court regarded as tainted by the process of its selection, the judgment of conviction was reversed and the case was remanded for a new trial.

Defendant Lavinder asks us to reverse his conviction on the same basis, that is, that he was convicted by a jury which was improperly selected. He points out that in People v. Smith (1980), 91 Ill. App. 3d 523, 414 N.E.2d 1117, this court discussed Wheeler with approval. In Smith, however, the evidence of purposeful exclusion of jurors was held to be insufficient to warrant reversal, and Smith therefore does not bind us to follow Wheeler. We also note that in People v. Fleming (1980), 91 Ill. App. 3d 99, 413 N.E.2d 1330, another division of this court expressly refused to adopt the reasoning of the Wheeler opinion.

In Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824, the United States Supreme Court refused to reverse the conviction of a black petitioner who was tried before an all-white jury, even though the prosecutor had used peremptory challenges to strike all six black prospective jurors on the venire. The court there said that “a defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his race on the jury which tries him e * (380 U.S. 202, 208, 13 L. Ed. 2d 759, 766, 85 S. Ct. 824, 829.) The court went on to define the peremptory challenge and discuss its interaction with a defendant’s right to equal protection of the laws:

“The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court’s control. * * * It is * 0 * frequently exercised on grounds normally thought irrelevant to legal proceedings or official action, namely, the race, religion, nationality, occupation or affiliations of people summoned for jury duty. # 0 #
[W]e cannot hold that the striking of Negroes in a particular case is a denial of equal protection of the laws. In the quest for an impartial and qualified jury, Negro and white, Protestant and Catholic, are alike subject to being challenged without cause. To subject the prosecutor’s challenge in any particular case to the demands and traditional standards of the Equal Protection Clause would entail a radical change in the nature and operation of the challenge. The challenge, pro tanto, would no longer be peremptory, each and every challenge being open to examination, either at the time of the challenge or at a hearing afterwards. The prosecutor’s judgment underlying each challenge would be subject to scrutiny for reasonableness and sincerity.” 380 U.S. 202, 220-22, 13 L. Ed. 2d 759, 772-73, 85 S. Ct. 824, 836-37.

The Illinois Supreme Court has held that Swain is dispositive of a complaint that the State used peremptory challenges to exclude blacks from a jury. (See People v. King (1973), 54 Ill. 2d 291, 296 N.E.2d 731.) We also note that although this court has discussed Wheeler in dictum (see, e.g., People v. Smith and People v. Fleming), it has been unable, in view of People v. King, to adopt Wheelers holding or its rationale. In both People v. Bracey (1981), 93 Ill. App. 3d 864, 417 N.E.2d 1029, and People v. Vaughn (1981), 100 Ill. App. 3d 1082, the precise peremptory challenge issue was not reached because the record of voir dire was incomplete.

We find it significant that the California court expressly based its decision in Wheeler on the defendant’s right to trial by an impartial jury under the aegis of the California State constitution: “ ‘[0]ur first referent is California Law’ and divergent decisions of the United States Supreme Court ‘are to be followed by California courts only when they provide no less individual protection than is guaranteed by California law.’ [Citations.] It is apparent that Swain provides less protection to California residents than the rule we now adopt.” (22 Cal. 3d 258, 285, 583 P.2d 748, 767, 148 Cal. Rptr. 890, 908.) However, in the case before us we conclude that to protect a defendant’s right to a fair trial, the Constitution of the State of Illinois does not direct or require us to go beyond the holding in Swain.

The Wheeler court said it recognized that a litigant has no right to a jury which is a perfect cross-section of the community, or which includes members of his own group. It said its holding did not mean that members of that group were immune from peremptory challenges. But the Wheeler court also stated that individual members of the group may only “be struck on grounds of specific bias” (emphasis added) (22 Cal. 3d 258, 277, 583 P.2d 748, 762, 148 Cal. Rptr. 890, 903), which appears to us to mean that group members may be struck only for cause. The Wheeler court thus reached the precise result the United States Supreme Court deliberately avoided in Swain: It produced a radical change in the nature and operation of the peremptory challenge, rendering it in fact no longer peremptory and opening to scrutiny for reasonableness and sincerity the prosecutor’s judgment in the exercise of each challenge. See 380 U.S. 202, 221-22, 13 L. Ed. 2d 759, 773-74, 85 S. Ct. 824, 836-37.

Indeed, the Wheeler court paradoxically stated that while a California statute defines a peremptory challenge “as one for which ‘no reason need be given’ * * * it does not follow therefrom that it is an objection for which no reason need exist.” (22 Cal. 3d 258, 274, 583 P.2d 748, 760, 148 Cal. Rptr. 890, 901.) The court further assumed that this unexpressed reason will be some kind of bias on the part of the prospective juror, and finally decided that some types of bias (specific bias) are acceptable grounds for the exercise of a peremptory challenge, while other types (group bias) are not. We would conclude that the Wheeler court intended to do away with the peremptory nature of the peremptory challenge:

“The hyperbole of certain earlier opinions — e.g., that peremptory challenges may be invoked ‘upon the mere whim or caprice’ of the parties [citation] — should be reconsidered in the light of these pragmatic imperatives.” 22 Cal. 3d 258, 275 n.15, 583 P.2d 748, 760 n.15, 148 Cal. Rptr. 890, 901 n.15.

In addition, we find Wheelers discussion of the defendant’s right to a jury drawn from a representative cross-section of the community misleading in that it applies standards to the selection of a petit jury which the United States Supreme Court has held are applicable to the selection of a jury pool or venire. Wheeler cites Taylor v. Louisiana (1975), 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692, as the most recent case of this type. Taylor holds that the sixth amendment guarantee of an impartial jury trial in criminal cases requires the presence of a fair cross-section of the community “on venires, panels, or lists from which petit juries are drawn • s ° ” (419 U.S. 522, 526, 42 L. Ed. 2d 696, 95 S. Ct. 692, 696.) However,

“It should also be emphasized that in holding that petit juries must be drawn from a source fairly representative of the community we impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition # (Emphasis added.) 419 U.S. 522, 538, 42 L. Ed. 2d 696, 702, 95 S. Ct. 692, 702.

Justice Richardson’s dissent in Wheeler analyzes the difficulty with the majority’s effort to achieve impartiality and avoid bias in the jury selection system:

“The majority repeatedly refuses to recognize the established distinction between the jury venire and the petit jury. It attempts to render synonymous the terms ‘representative’ and ‘impartial’ insisting that the true guarantor of impartiality is a mixing of representative groups ‘so that the respective biases of their members, to the extent they are antagonistic, will tend to cancel each other out.’ (Ante, pp. 266-267.) I totally, and fundamentally, disagree that this is either the function or the goal of the jury selection process.
Dissension, to the extent that it reflects only a clash of the ‘respective biases’ of individual jurors, is no guarantee whatever of impartiality. Impartiality is not assured by balancing ‘biases.’ ” 22 Cal. 3d 258, 292, 583 P.2d 748, 771, 148 Cal. Rptr. 890, 913.

Additionally, we note that the recent case of People v. Fleming (1980), 91 Ill. App. 3d 99, 105, 413 N.E.2d 1330, 1334, quotes State v. Grady (1979), 93 Wis. 2d 1, 13, 286 N.W.2d 607, 612:

“[T]he test proposed by the California court is vague and uncertain, and severely limits the scope of peremptory challenges. If peremptory strikes can only be exercised in a certain way, dependent on circumstances, and subject to judicial scrutiny, they will no longer be peremptory. We refuse to undertake such an alteration of the very nature of the peremptory system.”

We agree with this analysis. As the United States Supreme Court in Swain observed, prospective jurors are not judged solely as individuals. A peremptory challenge traditionally may be based on whatever limited knowledge counsel has of each venire-person, including that person’s background and associations. Assumptions predicated on such factors may be correct as applied to an individual juror, or they may be wrong. Counsel’s responsibility to his client is to make the best assessment possible based on whatever information is available. We feel the wiser policy is to decline to interfere with counsel’s right to strike a specified number of prospective jurors based on any factors he considers important, rather than to specify certain circumstances in which peremptory challenges may not be exercised, or certain factors on which they may not be based. In view of the foregoing, we do not find merit in the defendant’s contention that the peremptory challenges by the prosecution in the case before us were exercised in a manner that was constitutionally impermissible.

II

The defendant next argues that there was no probable cause for his arrest where an unidentified spectator at a drag race gave police “a mere general description of a car containing * * * male Negroes.” He claims that his arrest was illegal since it was “prompted by” a tip from this citizen-informer, who refused to give his name and address to the police, and who disappeared after giving his information instead of remaining available in case he was needed. Defendant relies upon the citizen-informer rule set forth in People v. Martin (1977), 46 Ill. App. 3d 943, 361 N.E.2d 595. The rule provides that the police, to have a reasonable basis upon which to make an arrest, must be aware of the person’s status as a citizen-informer, and that the citizen-informer must furnish underlying facts which indicate a crime has been committed and the named suspect committed it.

The defendant fails to explain why he assumes this rule applies to the unidentified spectator in this case who told a policeman where the men he was chasing had gone. We find that the rule in fact does not apply to the spectator here, who merely furnished information about the whereabouts of persons whom he had seen being pursued by a police officer. This spectator did not identify defendant as a criminal suspect, and defendant’s arrest was based on information the man provided only in that he might otherwise have escaped police pursuit.

The precise opposite of what defendant argues actually occurred in this case. The spectator did not inform the police that defendant was suspected of committing a crime; the policeman informed the spectator of that fact by his actions in pursuing the defendant. The arrest was founded on information provided by the victim, Reges, who approached the police, pointed out defendant and his companion, and said he had been robbed and shot at. The defendant makes no complaint about the information given by Reges, and we find that this was the information which established probable cause for the arrest. The citizen-informer rule has no application here.

Ill

Finally, defendant argues that an accumulation of other errors at trial denied him a fair trial. Defendant complains, for example, that after defense counsel objected to the police officer’s effort to testify to what the unidentified spectator at the drag race had told him and the objection was sustained, the State later asked what the spectator had said. The court again sustained defense counsel’s objection to the hearsay testimony. While it was improper for the prosecutor to ask the officer to repeat a statement to which an objection had already been sustained, no improper hearsay evidence was presented to the jury and we do not find that the alleged error was prejudicial to defendant.

Defendant also argues that the trial court erred in admitting testimony from the owner of the car which defendant and his companion abandoned at the scene of the drag race. Defendant claims that the assertion of ownership by that witness suggested that defendant stole the car and thus was guilty of another crime. Defendant claims he was prejudiced thereby. However, the State points out that this testimony was needed to disprove the possibility that the owner, and not defendant and his companion, had abandoned the car at 130th and Torrence. While the State’s reasoning is somewhat tenuous, we nonetheless find the error, if any, to be harmless in view of the overwhelming evidence of defendant’s guilt. See, e.g., People v. Castillo (1976), 40 Ill. App. 3d 413, 352 N.E.2d 340; People v. Kirkwood (1959), 17 Ill. 2d 23, 160 N.E.2d 766.

We have reviewed defendant’s claims of other errors and find them to be lacking in merit.

For all of the reasons discussed above, the defendant’s convictions are affirmed.

Affirmed.

JIGANTI, J., concurs.

JUSTICE JOHNSON,

dissenting:

I respectfully dissent and would base my reversal on the peremptory challenge issue.

The majority discusses People v. Wheeler (1978), 22 Cal. 3d 258, 583 P.2d 748, 148 Cal. Rptr. 890, but refuses to apply the procedures employed by Wheeler. They maintain that Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824, is controlling. The majority cites People v. King (1973), 54 Ill. 2d 291, 296 N.E.2d 731, as standing for this proposition. However, King does not suggest or maintain that Illinois cases dealing with the issue of peremptory challenges are to be governed by Swain exclusively. Further, the majority summarily dismisses the Wheeler decision by urging that the Constitution of the State of Illinois does not direct or require us to go beyond the holding of Swain.

I cannot agree with this analysis. In order to establish a prima facie case under Swain, the defendant must show a systematic striking of blacks from the selection of juries over a period of time. In practice, this task has proved to be insurmountable for the defendant. (See Commonwealth v. Soares (1979), 377 Mass. 461, 387 N.E.2d 499.) Consequently, there have been few, if any, cases that have overcome the Swains systematic exclusion test. The Wheeler court recognized the inadequacies of Swain and refused to apply the systematic exclusion test. I agree with the procedures employed by Wheeler, and I would use those procedures in this case. The record reveals that the prosecutor struck all six black jurors from the panel without a satisfactory explanation. Under Wheeler, once improper use of the peremptory challenge is alleged, as in this case, the burden shifts to the prosecution to rebut or explain. Since the prosecutor offered no satisfactory explanation, the State failed to meet its burden; therefore, a new jury should have been selected.

As was stated in People v. Smith (1980), 91 Ill. App. 3d 523, 532, 414 N.E.2d 1117, 1124, “[w]e abhor and condemn the practice of the use of the peremptory challenge to strike all blacks from a jury.” Smith also indicated that where purposeful exclusion has been shown, as in this case, reversal would be appropriate. Defendant Lavinder has established a prima facie case under Wheeler; for me, this is sufficient for reversal.


author: JUSTICE JIGANTI

text:
    STEWART R. BLUESTEIN, Plaintiff-Appellant, v. THE UPJOHN COMPANY, Defendant-Appellee.
    First District (4th Division)
    No. 80-2226
    Opinion filed December 17, 1981.

      French and Rogers, of Chicago (Richard G. French, of counsel), for appellant.
    Burditt & Calkins, of Chicago (George M. Burditt and Robert G. Epsteen, of counsel), for appellee.
   JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiff, Stewart Bluestein, brought an action to recover damages for personal injuries which allegedly resulted from his ingestion of Cleocin, a drug manufactured by the Upjohn Company. The complaint alleged liability on the bases of negligence, strict liability, breach of warranty and wilful and wanton conduct. The trial court directed a verdict for Upjohn on the breach of warranty count. Although the jury returned a general verdict for the plaintiff, it answered “no” to a special interrogatory that asked “[w]as Cleocin a proximate cause of the injuries claimed by Stewart Bluestein?” Because of this answer the trial court entered judgment in favor of Upjohn. The plaintiffs argument on appeal is that the trial court erred in entering judgment on the special interrogatory and in directing the verdict on the breach of warranty count. The plaintiff also contends that certain trial errors occurred which mandate a reversal. These will be detailed later in the opinion.

The plaintiff was born on April 3,1955. During his teenage years, he experienced difficulty with acne, which prompted him to consult Dr. Irving Distelheim, a dermatologist. Dr. Distelheim began treating the plaintiff on January 8, 1971. He prescribed Cleocin from January to July of 1973 after hearing that Cleocin was effective in the treatment of acne.

On April 23, 1973, the plaintiff began to experience abdominal cramps, vomiting and diarrhea. He visited Dr. Andleman, his regular physician, who also prescribed Cleocin. A few weeks later it became apparent that the plaintiff was suffering from inflammatory bowel disease and required hospitalization. From April of 1973 through November of 1979, the plaintiff was hospitalized 34 times for surgical procedures and other treatment resulting from his inflammatory bowel disease. The extensive surgery culminated in the removal of the plaintiff’s colon and portions of his small intestine, rectum and anus.

At trial, Upjohn did not dispute the severity of the plaintiff’s injuries. Rather, it took the position that his injuries were the result of a preexisting bowel condition called Crohn’s disease and were not related to the ingestion of Cleocin. Upjohn presented expert testimony to the effect that there are three separate diseases included in the general category of inflammatory bowel disease. These are ulcerative colitis, Crohn’s disease, and antibiotic associated colitis. Upjohn defended the case on the proposition that the plaintiff has Crohn’s disease, and although Cleocin has been linked to antibiotic associated colitis, there is no causal relationship between Cleocin and either Crohn’s disease or ulcerative colitis.

The plaintiff presented one expert, Dr. Matthew J. Ellenhorn, who contradicted most of the testimony presented by Upjohn on the issue of causation. He stated that his opinion, based on a reasonable degree of medical certainty, was that the plaintiff’s condition was caused by the ingestion of Cleocin. He further stated that assuming the plaintiff had an underlying Crohn’s disease Cleocin could have aggravated the condition causing massive bleeding and creating the need for surgery. Dr. Ellenhorn testified that Upjohn fell below the requisite standard of care by marketing Cleocin without a warning that one of its adverse reactions could include severe inflammatory bowel disease. He then stated that all of the bowel diseases, Crohn’s disease, ulcerative colitis, and antibiotic associated colitis have in the past 10 years been increasingly categorized under the heading of inflammatory bowel disease because a physician cannot distinguish among them in many cases. The plaintiff’s case therefore centered around the argument that Upjohn failed to adequately warn of the association between Cleocin and inflammatory bowel disease. This breach of duty on the part of Upjohn led to the plaintiff’s ingestion of Cleocin which ultimately resulted in his very serious injuries.

Because the causal relationship between Cleocin and the plaintiff’s injuries emerged as the central issue at trial, Upjohn submitted a special interrogatory on proximate cause. The trial court gave the jury the following definition of proximate cause: :

“When I use the phrase ‘proximate cause’ in these instructions, I mean the injury complained of must be the natural and probable result of the acts of the defendant or of the failure of the defendant to act.
A cause of an injury is something that triggers a natural chain of events that ultimately produces the injury. Without the cause, the injury would not have happened.”

The plaintiff did not object to this definition.

In addition, the plaintiff’s damages instruction told the jury that one of the elements of damage for which the plaintiff claimed compensation was “[t]he aggravation of any preexisting ailment or condition.”

The plaintiff’s main point on appeal is that the trial court erred in disregarding the general verdict in favor of the plaintiff and in entering judgment for Upjohn based upon the jury’s answer to the special interrogatory. Citing Wicks v. Cuneo-Henneberry Co. (1925), 319 Ill. 344, 150 N.E.276, he argues that the special interrogatory is controlling only if it is inconsistent with the general verdict. Inconsistency exists “when the special findings are clearly and absolutely irreconcilable with the general verdict.” (Cohen v. Sager (1971), 2 Ill. App. 3d 1018, 1019, 278 N.E.2d 453, 455.) Where an examination of the jury finding reveals a “reasonable hypothesis consistent with the general verdict,” the special finding cannot be said to be absolutely irreconcilable. (2 Ill. App. 3d 1018, 1019, 278 N.E.2d 453, 455.) Basically, the plaintiff claims that in the instant cause the jury’s answer, when considered in light of the arguments advanced at trial and the jury instructions, can be interpreted as consistent with the general verdict for the plaintiff. He makes three specific arguments to support this general claim. While the third argument was raised during the conference on instructions, the other two were raised for the first time in the plaintiff’s post-trial motion.

First, he argues that the jury understood the word “proximate” in its ordinary sense, as meaning “immediate or direct.” Their finding that Cleocin was not the “immediate or direct” cause of the plaintiff’s injuries is legally irrelevant and does not preclude the possibility that they found Cleocin to have been a remote cause.

We cannot accept the contention that the word proximate was confusing and that the jury applied the ordinary rather than the legal definition of the word in answering the special interrogatory. A reading of the above-quoted definition which the court gave to the jury reveals that they were clearly instructed as to the legal meanings of cause and proximate cause. A “cause” was defined as “something that triggers a natural chain of events that ultimately produces the injury * * * [wjithout the cause, the injury would not have happened.” Even if we accept the plaintiff’s argument that the jury believed Cleocin to be a remote rather than a direct cause, this definition rather clearly encompasses the idea of remote cause. In our judgment, therefore, this argument does not present a reasonable hypothesis by which the special finding can be reconciled with the general verdict.

The plaintiff’s second argument appears to be as follows. The question before the jury was whether Upjohn’s failure to issue appropriate warnings with respect to Cleocin caused the plaintiff to sustain the injuries for which he now seeks recovery. It was never argued that Cleocin itself was a defective product. Rather, it was in a defective condition because of Upjohn’s failure to include proper warnings. The definition of proximate cause given to the jury stated that proximate cause means “the injury complained of must be the natural and probable result of the acts of the defendant or of the failure of the defendant to act.” (Emphasis added.) Both the arguments at trial and the proximate cause instruction focused on the conduct of the defendant rather than the harmfulness of the drug Cleocin. Thus, the plaintiff argues, the jury’s answer that Cleocin did not cause the plaintiff’s injuries simply reflected their determination that Cleocin, in itself, was not a defective or an unreasonably dangerous drug. Instead, as evidenced by the general verdict for the plaintiff, the jury determined that Upjohn’s failure to adequately warn was the proximate cause of the plaintiff’s injuries. We cannot accept this as a reasonable hypothesis sufficient to reconcile the special finding with the general verdict. Upjohn’s posture at trial was that the plaintiff’s severe injuries were the result of an underlying Crohn’s disease which could neither be caused nor aggravated by Cleocin. Voluminous expert testimony was presented on the differences between antibiotic associated colitis, the type of injury associated with Cleocin, and Crohn’s disease. Very simply, the jury’s answer reflected their acceptance of Upjohn’s argument that the plaintiff was suffering from a disease that was completely unrelated to his ingestion of Cleocin.

The third argument with respect to the special interrogatory is that it was fatally defective because it failed to refer to aggravation of a preexisting condition. Consequently, the jury may have felt that although Cleocin did not cause the plaintiff’s condition, it acted to aggravate his injuries. This would explain why the jury entered a general verdict in favor of the plaintiff. In addressing this argument, we note that plaintiff’s damages instruction informed the jury that one of the elements of damage was “the aggravation of any preexisting ailment or condition.” The court ruled that the special interrogatory covered aggravation because it asked “[w]as Cleocin a proximate cause of the injuries claimed by Stewart Bluestein,” and the damages instruction told the jury that the injuries he claimed included aggravation of a preexisting ailment or condition. The issue of aggravation was extensively covered during the trial. We do not believe that the trial court was incorrect in finding that the instructions were sufficient to indicate to the jury that aggravation of a preexisting condition was one of the injuries claimed by the plaintiff. Again, we do not believe that the record establishes this as a reasonable hypothesis by which the special finding and general verdict can be reconciled.

The plaintiff’s alternate argument is that even if the answer to the special interrogatory is inconsistent with the general verdict, the answer is against the manifest weight of the evidence. We are not persuaded by this argument. Virtually all of the evidence relating to causation came before the jury by way of expert testimony. The weight to be given to expert testimony is a matter for the trier of fact. (Hall v. Kirk (1973), 13 Ill. App. 3d 656, 300 N.E.2d 600.) Upjohn presented testimony by several highly qualified experts in the field of gastroenterology. Each one stated unequivocally that, in his opinion, the plaintiff’s ingestion of Cleocin neither caused his Crohn’s disease nor aggravated it. There was voluminous evidence on both the differences between antibiotic associated colitis and Crohn’s disease and on the lack of a causal relationship between Crohn’s disease and Cleocin. The plaintiff presented one expert who disagreed with this evidence and maintained that there was a causal relationship. The jury was free to accept as true the evidence presented by Upjohn and to disbelieve the testimony of the plaintiff’s expert.

The next issues to be considered were generally by a request to admit facts which was filed by the plaintiff pursuant to Supreme Court Rule 216 (Ill. Rev. Stat. 1979, ch. 110A, par. 216). Rule 216(c) provides that any fact contained in the request to admit “is admitted” unless the party to whom the request is directed denies or objects to the fact within 28 days. In the instant cause, Upjohn sought to file its response approximately nine months after the request was served. The trial court allowed the late filing over the plaintiff’s objection, but stated that any fact as to which the plaintiff could show prejudice because of the late filing would be deemed admitted.

The plaintiff’s first argument with respect to this issue is that the facts in his request to admit were admitted by operation of law when Upjohn failed to respond within 28 days. He takes the position that Supreme Court Rule 216 gives no discretion to the trial court to allow a late filing. We do not believe that this is a proper interpretation of the law. It is true, as the plaintiff maintains, that certain courts have refused to relieve a tardy litigant from being bound by his failure to respond within the 28-day period. (See Banks v. United Insurance Company of America (1975), 28 Ill. App. 3d 60, 328 N.E.2d 167; Crum v. Gulf Oil Corp. (1973), 12 Ill. App. 3d 988, 299 N.E.2d 820.) However, in Illinois State Toll Highway Authority v. Humphrey Estate (1978), 62 Ill. App. 3d 316, 326, 379 N.E.2d 626, 633, the court took the position that a request to admit “is in the nature of discovery [citation] and as such the trial court has wide discretion in controlling it.” Also, in Redmond v. Central Community Hospital (1978), 65 Ill. App. 3d 669, 382 N.E.2d 95, the court held that it could allow a late filing under its inherent power to prevent injustice. This apparently was the belief held by the trial court in the instant cause. Noting that certain of the facts contained in the request to admit concerned the central issue of proximate cause, the court stated, “[I]f I were to find those requests have been admitted by a lawyer’s carelessness, without more, I would be depriving a party of his right to a trial by jury on a basic issue in this case.” We do not believe that this action on the part of the trial court was improper.

The plaintiff next claims that even if the response could properly be allowed, the trial court erred in finding that he was not prejudiced by the late filing. Essentially, he argues that Dr. Andleman, the plaintiff’s regular physician since birth, died between the expiration of the 28-day period and the time Upjohn filed its response. Because the plaintiff assumed the facts in his request were admitted, he failed to take Dr. Andleman’s evidence deposition which would have contained crucial testimony on certain of those facts.

We understand the plaintiff’s claim of prejudice to be rooted in the fact that Dr. Andleman was his regular physician and could therefore provide crucial testimony concerning his condition. However, the facts contained in the request to admit, such as “Cleocin can cause colitis,” and “Cleocin-induced colitis may progress to a syndrome-like ulcerative colitis,” were of a general medical nature. They did not require the testimony of the plaintiff’s treating physician. Rather, any expert could have presented testimony concerning these facts. We therefore conclude, as did the trial court, that the plaintiff was not prejudiced by the loss of Dr. Andleman’s testimony concerning these matters.

The plaintiff next contends that the trial court erred in vacating its order defaulting Upjohn on the issue of liability. On December 28, 1979, pursuant to Supreme Court Rule 237(b) (Ill. Rev. Stat. 1979, ch. 110A, par. 237(b)), the plaintiff filed a notice to produce seven of Upjohn’s out-of-State employees. Upjohn, together with the individual employees, filed a motion to quash the Rule 237 notice. The trial court denied both the motion to quash and Upjohn’s request for certification pursuant to Supreme Court Rule 308 (Ill. Rev. Stat. 1979, ch. 110A, par. 308). During the next five days, Upjohn unsuccessfully sought relief in the Illinois Supreme Court, the district court for the Northern District of Illinois, and the Seventh Circuit Court of Appeals. On February 12, 1980, Upjohn informed the trial court that it would not produce the witnesses until it had exhausted all avenues of appellate review. The trial court responded by entering an order defaulting Upjohn on the question of liability. On the following day, Upjohn filed a motion to reconsider and informed the trial court that a motion for leave to file a mandamus petition was being filed in the Illinois Supreme Court. The trial court, noting that the purpose of sanctions is to require compliance and not to punish, stated that if on the following day Upjohn agreed to produce the out-of-State witnesses, the order defaulting Upjohn on the issue of liability would be vacated. On February 14, 1980, the Illinois Supreme Court denied Upjohn’s petition, and Upjohn agreed to produce the witnesses. The trial court then vacated its order and awarded $2000 to the plaintiff’s attorneys for their time with respect to the matter.

The plaintiff claims that the court abused its discretion in vacating its order because Upjohn’s refusal to produce the witnesses was “deliberate, contumacious, and without legal justification.”

It is well established that sanctions are to be imposed only when noncompliance is unreasonable. (Estate of Fado v. Fadukovich (1976), 43 Ill. App. 3d 759, 357 N.E.2d 195.) Because an order of default is one of the most drastic sanctions, it should be used only as a last resort, and should be vacated if it will not cause a hardship for the parties to proceed to trial on the merits. Williams v. City of Chicago (1977), 54 Ill. App. 3d 974, 370 N.E.2d 119.

Applying these principles to the case at bar leads us to conclude that the trial court did not abuse its discretion in setting aside its default order against Upjohn. If Upjohn had produced its out-of-State employees before seeking review, it would have rendered the issue moot. On February 13, 1980, Upjohn asked the trial court to vacate the default judgment entered on the previous day and to put the matter over for a day so that Upjohn could obtain a ruling from the Illinois Supreme Court. The court stated that it would not delay proceedings and that Upjohn had to decide by the following day whether it would produce the witnesses. If Upjohn informed the court that it would comply, the default judgment would be vacated. On February 14, 1980, Upjohn agreed to produce the witnesses and the court vacated the judgment, taking into consideration that the period during which Upjohn was in noncompliance was a court holiday and covered a period of less than 24 hours. In our view, the court acted well within its discretion.

The next argument raised by the plaintiff concerns a hypothetical question presented at trial which included the plaintiff’s medical records. The plaintiff claims that the trial court erred in refusing to exclude the portion of his medical history which covered the period from his birth through age 17. These particular records detailed such problems as diarrhea, vomiting, fever, discharges from the eyes, aphthous lesions, allergies and an enlarged liver and spleen. He claims that Upjohn failed to show a connection between this history and the experts’ opinion that the plaintiff had Crohn’s disease, and therefore it was irrelevant.

In addressing this issue we must recognize that the determination of whether evidence is relevant is largely within the discretion of the trial court and a reviewing court will not disturb the ruling unless there has been an abuse of discretion. (Ferdinand v. Yellow Cab Co. (1976), 42 Ill. App. 3d 279, 355 N.E.2d 547.) Moreover, any evidence which tends to prove a fact in controversy or renders a matter at issue more or less probable is considered relevant. People v. Pointer (1981), 93 Ill. App. 3d 1064, 418 N.E.2d 1.

It is true that none of Upjohn’s experts testified that they could diagnose Crohn’s disease solely from the plaintiff’s medical history prior to age 17. However, Dr. Marshall Sparberg stated that data showing a lifelong history of digestive problems was relevant in diagnosing Crohn’s disease and that liver and spleen problems are also relevant extracolonic manifestations of Crohn’s disease. Also, there was testimony from Upjohn’s experts that aphthous lesions and discharges from the eyes occur characteristically in Crohn’s disease. In light of this evidence, we believe the trial court properly exercised its discretion in refusing to strike the plaintiff’s early medical history.

The plaintiff’s last contention is that the trial court erred in directing a verdict for Upjohn on the breach of warranty count. Causation is an essential element of a breach of warranty theory. (63 Am. Jur. 2d Products Liability §91, at 97 (1972).) Because a general verdict for the plaintiff on the breach of warranty count could not have survived the jury’s answer to the special interrogatory, it is unnecessary for us to consider whether the trial court erred in directing a verdict as to that count.

For the foregoing reasons the judgment of the circuit court is affirmed.

Affirmed.

JOHNSON and LINN, JJ„ concur.

       The jury also made a special finding that Upjohn was not guilty of wilful and wanton conduct.


author: JUSTICE JIGANTI JUSTICE LINN,

text:
    BOARD OF TRUSTEES OF COMMUNITY COLLEGE DISTRICT NO. 508, COUNTY OF COOK, Plaintiff-Appellant, v. COOK COUNTY COLLEGE TEACHERS UNION, LOCAL 1600, IFT, AFT, AFL-CIO, Defendant-Appellee.
    First District (4th Division)
    No. 80-2593
    Opinion filed December 17, 1981.
    Rehearing denied January 22, 1982.
    LINN, J., dissenting.
    Arvey, Hodes, Costello & Burman, of Chicago (George L. Siegel, of counsel), for appellant.
    Gilbert Feldman, of Chicago, for appellee.
   JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiff, the Board of Trustees of Community College District No. 508 (Board) filed an action in the circuit court of Cook County seeking to overturn an arbitrator’s award. The defendant, the Cook County College Teachers Union, Local 1600 (Union), filed a motion for summary judgment. The Board also moved for summary judgment. The trial court granted the Union’s motion for summary judgment, from which the Board appeals.

On appeal, the Board contends that the trial court erred in affirming the arbitrator’s award because the award was contrary to the express terms of the collective bargaining agreement.

The instant dispute concerns the arbitrator’s interpretation of article VIII H.l of the collective bargaining agreement between the Union and the Board. This provision provides in pertinent part:

“Registration duties. Registration shall last no longer than one week at all [city] colleges. Duties of faculty members during registration period shall consist of counseling, programming and other professionally related duties.”

The collective bargaining agreement also provided for binding arbitration of grievances filed by the Union. The relevant portions of this provision are as follows:

“(i) The decision of the arbitrator will be accepted in good faith as final by both parties to the grievance and both will abide by it.
(j) The arbitrator shall limit his decision strictly to the application and interpretation of the provisions of this Agreement and he shall be without power or authority to make any decision:
(1) Contrary to, or inconsistent with, or modifying or varying in any way, the terms of this Agreement; or
(2) Limiting or interfering in any way with the powers, duties and responsibilities of the Board under applicable law.”

During the registration period in the fall of 1976, librarians at the Kennedy-King College were assigned to program students in a special problems category and to work with the counselors. They claimed they did so without protest as a gesture of good will toward the new school president. Prior to this time, librarians at Kennedy-King and all other city colleges did not participate in registration. In the spring and fall of 1977, librarians at Kennedy-King College were again assigned to and did assist in the registration.

The testimony of Noel Grego, a librarian at Kennedy-King, describing these duties was attached to the Board’s motion for summary judgment. According to Grego, the librarians were assigned to work with the counselors in programing students in the “special problems” category. These students had been programmed by other faculty members for courses and, although the students had paid for the courses, the courses were no longer available. Faculty members at the special problems table would then find other courses for the students to take. Grego asserted that his experience as a librarian did not equip him with any particular skill or qualification or background to perform this function and that the librarians worked in a subordinate level to the counselors.

The Union filed grievances for the 1977 spring and fall assignments. The Board rejected the grievances. The matter then went to arbitration to decide whether the registration dues assigned to the librarians violated the terms of the agreement, particularly article VIII H.l, which provides, “[d]uties of faculty members during registration period shall consist of counseling, programming and other professionally related duties.”

The arbitrator found that librarians were faculty members within the meaning of the agreement, but that the “testimony, evidence and arguments of the parties establish the fact that the assignment of the librarians * * * to registration functions was in violation of Article VIII H.l and Article XI of the contract 0 * The circumstances surrounding article XI will be discussed subsequently. The arbitrator’s reasons for this finding were also set forth in the award:

“It is evident that the duties of librarians differ from other disciplines insofar as their professional services are concerned. In general, other disciplines were assigned to registration duties which were primarily related to their professional responsibilities. In the case of the librarians, it appears that there was no such relationship when registration duties were assigned to them, and thus their registration duties were not related to their professional duties. This may account for the fact that Kennedy-King librarians were not previously assigned to registration duties and that no other librarians throughout the system received such assignments. While it is true that the librarians are faculty members within the meaning of Article VIII H.l, it must be noted that the said Article refers to the duties of faculty members during registration periods as consisting of ‘counseling, programming and other professionally related duties.’ The librarians do not fit into such a pattern.”

The circuit court affirmed the award of the arbitrator. This appeal followed.

The Board’s argument on appeal is that the trial court erred in affirming the arbitrator’s award because the award was contrary to the express terms of the agreement between the parties. Specifically, the Board contends that the award had the effect of modifying the terms of the agreement, that it was based upon a nonexistent “past practices” clause which the arbitrator mistakenly believed was included in article XI, and that it interfered with the discretionary powers of the Board.

Arbitration is a favored method of settling disputes. Its object is to achieve a final disposition of disputes in an easier, more expeditious and less expensive manner than by litigation. (Brennan v. Kenwick (1981), 97 COOK COUNTY COLLEGE TEACHERS UNION, LOCAL 1600. App. 3d 1040, 425 N.E.2d 439.) The interpretation of a collective bargaining agreement is a function of the arbitrator. A court will review an arbitrator’s contract interpretation only to determine if the arbitrator’s award drew its essence from the agreement so as to prevent a manifest disregard of the agreement between the parties. (Board of Trustees v. Cook County College Teachers Union, Local 1600 (1979), 74 Ill. 2d 412, 386 N.E.2d 47.) “ “* * * It is the arbitrator’s construction which was bargained for; and so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.’ [Citation.]” (74 Ill. 2d 412, 421, 386 N.E.2d 47, 51.) However, if the arbitrator’s award does not draw its essence from the collective bargaining agreement, “courts have no choice but to refuse enforcement of the award.” United Steelworkers of America v. Enterprise Wheel & Car Corp. (1960), 363 U.S. 593, 597, 4 L. Ed. 2d 1424, 1428, 80 S. Ct. 1358, 1361.

The Board takes the position that no interpretation of the agreement was necessary. Rather, the provision of the agreement with respect to registration duties is clear and unambiguous and specifies three categories of duties which all faculty members are required to undertake: (1) counseling; (2) programming; and (3) other professionally related duties. The arbitrator found that librarians are faculty members and therefore, the Board argues, their assignment to programming during registration did not violate the agreement. The Board maintains that the arbitrator’s finding that registration duties assigned to the librarians were not related to their professional duties varied the agreement to read “[djuties of faculty members, other than librarians, during registration period shall consist of counseling, programming and other professionally related duties.” If librarians had been assigned duties other than counseling or programming, then, the Board asserts, a third category of “other professionally related duties” would apply, and the question would be presented whether such other duties were professionally related.

The Union, on the other hand, argues that the arbitrator was required to interpret the registration duties clause. To do so, the arbitrator first had to decide whether all assigned registration duties were required to be “professionally related duties.” The key word in the clause, in the Union’s view, is the adjective “other” which is used when a comparison of something in the same class is needed but not when a comparison is with things of a different class. The second issue to be decided, the Union maintains, is whether the registration duties had to be professionally related to the particular faculty member who received the assignment. The Union urges that it established that in no other instance had any faculty member been required to perform registration duties unrelated to his or her area of specialization. The Union also argues that the purpose of the clause was to protect the professional integrity of faculty members and to prevent the use of librarians as clerical assistants to aid counselors in counseling students, a duty which the librarians had no professional competence to perform.

We agree with the Union that interpretation of the registration duties clause was crucial to the resolution of the conflict between the parties and that the arbitrator’s award was drawn from the essence of the agreement. In our view, the issue before the arbitrator was whether or not the clause required that the duties assigned to a faculty member be related to his or her particular area of expertise. We disagree with the Board’s rationale that only its interpretation can be accepted. After noting that other members of the faculty were given counseling and programming duties related to their respective fields of expertise, the arbitrator determined that the clause required that registration duties assigned to librarians also be related to their particular professional skills. Whether this court’s opinion as to the proper interpretation of the clause may have been different from that of the arbitrator is of no consequence. The parties bargained for the arbitrator’s interpretation and this is what they received.

Next, the Board contends that the arbitrator’s award is invalid because it was based upon a nonexistent provision which the arbitrator mistakenly believed was contained in article XI of the agreement. The provision in question, which the Union terms a “past practices” clause, was quoted by the arbitrator in his award as follows: “During the life of this Agreement, the Board will continue its existing policies and uniform practices with reference to salaries, fringe benefits and working conditions of faculty members which are not specifically covered by this Agreement.” As the Board correctly asserts, there was no such provision in the contract between the parties. The Union filed a counterclaim in the trial court for reformation of the contract to include such a provision, alleging that it had been included in prior contracts but was omitted from the 1975 contract through a mutual mistake. The Board filed an answer denying the allegations of mutual mistake and the Union withdrew the counterclaim. The Board argues that the arbitrator predicated his decision upon this clause, which was not a part of the contract, and that the award is therefore a nullity.

We are not persuaded by this argument. It is apparent from the arbitrator’s award that he found two independent and separate contract violations which constituted alternative grounds for sustaining the grievance. The arbitrator’s finding that the Board violated article VIII H.l is sufficient to support its award in favor of the Union regardless of the fact that his finding as to article XI is unsupported by the contract.

The Board then argues that even accepting as correct the arbitrator’s decision that the registration duties clause does not require librarians to perform counseling and programming duties, the Board still has discretionary power to assign those duties to librarians absent a provision in the collective bargaining agreement on that subject. Therefore, the award contravenes the provision of the agreement which prohibits the arbitrator from “[ljimiting or interfering in any way with the powers, duties and responsibilities of the Board # * e.”

By making this argument, the Board appears to misconstrue the decision of the arbitrator. In its presentation to the arbitrator, the Union attempted to establish that the purpose of the registration duties clause was to protect the professional integrity of each faculty member in connection with the assignment of registration duties. The Union contended that requiring the librarians to work as assistants to the counselors in the performance of duties unrelated to the skills of the librarians would be demeaning to their professional integrity. The arbitrator, after hearing the evidence, decided that by requiring the librarians to perform registration duties, the Board violated the collective bargaining agreement. Clearly, the Board cannot argue that it has discretionary power to violate the contract between the parties.

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

Affirmed.

ROMITI, P. J., concurs.

JUSTICE LINN,

dissenting:

I respectfully dissent.

The parties agree that the standard of review of an arbitrator’s contract interpretation is to determine only if the arbitrator’s contract drew its essence from the agreement so as to prevent a manifest disregard of the agreement between the parties. (Board of Trustees v. Cook County College Teachers Union, Local 1600 (1979), 74 Ill. 2d 412, 386 N.E.2d 47.) As noted, the question of interpretation of the collective bargaining agreement is a question for the arbitrator. “ Tt is the arbitrator’s construction which was bargained for; and so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.’ [Citation.]” 74 Ill. 2d 412, 421, 386 N.E.2d 47, 51.

The Board maintains, and I agree, that the provision of the agreement with respect to registration is clear and unambiguous and specifies three categories of registration duties: (1) counseling; (2) programming; and (3) other professionally related duties. The arbitrator found that librarians are faculty members and therefore, the Board argues, their assignment to programming during registration did not violate the agreement. The Board maintains, and I further agree, that the arbitrator’s finding that registration duties assigned to the librarians were not related to their professional duties varied the agreement to read “Duties of faculty members, other than librarians, during registration period shall consist of counseling, programming and other professionally related duties.” If librarians had been assigned duties other than counseling or programming, then, the Board asserts, a third category of “other professionally related duties” would apply, and a question would be presented whether such other duties were professionally related.

I am persuaded by the Board’s argument that programming during registration is a contractual duty of faculty members and that whether or not it is professionally related is not relevant to this contractual duty. Thus, the arbitrator’s finding that the programming duties assigned to the librarians “were not related to their professional duties” varies the terms of the agreement. The essence of the agreement, in my view, is that there are other undefined professionally related duties aside from programming and counseling which faculty members must perform during registration but that the duties of faculty members, which includes librarians, clearly include programming and counseling. It is undisputed that the librarians at Kennedy-King College did perform programming duties during registration. I believe the arbitrator exceeded his authority under the contract. The award manifestly disregards the agreement between the parties and varies the terms of the agreement.

“[A]n arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. * * * [H]is award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.” United Steelworkers of America v. Enterprises Wheel & Car Corp. (1960), 363 U.S. 593, 597,4 L. Ed. 2d 1424, 1428, 80 S. Ct. 1358, 1361.

See also General Drivers, Warehousemen and Helpers, Local Union No. 89 v. Hays & Nicoulin, Inc. (6th Cir. 1979), 594 F.2d 1093.

The Union, nevertheless, argues that to interpret the clause, the arbitrator first had to decide whether all assigned registration duties were required to be “professionally related duties.” As noted, the key word in the clause, in the Union’s view, is the adjective “other,” which is used when a comparison of something in the same class is needed but not when a comparison is with things of a different class. The second issue, the Union maintains, is to whom must the registration duties be professionally related and the answer is the faculty member who received the assignment. The Union urges that it established that in no other instance had any faculty members been required to perform registration duties unrelated to their area of specialization. From the record before us on appeal, I am unable to determine that the Union did so establish that fact. The Union also argues that the purpose of the clause was to protect the professional integrity of faculty members and to prevent the use of librarians as clerical assistants to counselors to assist in counseling, a duty which the librarians had no professional competence to perform.

There is nothing in the record before us which describes the librarians registration duties as anything other than programming. Although Grego testified that librarians had no special training or skill to assist with programming, he did not describe the registration duties as clerical in nature. In my view, the plain language of the clause requires faculty members to perform programming and counseling during registration. Librarians admittedly are faculty members, and hence, fall within the class of employees who must perform programming and counseling duties. Consequently, I believe the union’s argument is without merit.

In view of my conclusion that the arbitrator’s award is not drawn from the essence of the agreement, I would find no need to address the other issues raised by the Board. In my view, the arbitrator’s interpretation of the clause varies the terms of the agreement and consequently the arbitrator exceeded his authority under the agreement and the award must be vacated. Local 134, International Brotherhood of Electrical Workers v. Chicago Transit Authority (1979), 68 Ill. App. 3d 855, 386 N.E.2d 303; In re American Arbitration Association (1969), 109 Ill. App. 2d 370, 248 N.E.2d 756.

It is my conclusion that the order of the circuit court of Cook County be reversed, the award of the arbitrator be vacated, and judgment for plaintiffs be entered.