author: JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN HENRY WITHERS, Defendant-Appellant.
    First District (2nd Division)
    No. 81—2795
    Opinion filed June 21, 1983.

      Steven Clark, of State Appellate Defender’s Office, of Chicago (David S. Fleming, of Karon, Morrison, & Savikas, Ltd., of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Paula Carstensen, and Peter M. DeLongis, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HARTMAN

delivered the opinion of the court:

Defendant was found guilty by a jury of one count of armed robbery, unlawful restraint, and armed violence, but not guilty of attempted murder. Because the armed violence count was predicated upon the unlawful restraint, the circuit court entered judgment only on the armed robbery and armed violence counts. The court subsequently found defendant to be an habitual criminal and sentenced him to life imprisonment.

On appeal, defendant raises as issues whether: (1) the State’s use of peremptory challenges to exclude all blacks from the jury violated his right to a fair trial; (2) defense counsel’s mention of an alibi defense in her opening statement, never referred to again during trial or in closing argument, deprived him of effective assistance of counsel; (3) defendant’s armed violence conviction was based upon acts separate and distinct from those upon which his armed robbery conviction rested; and (4) the habitual criminal act (Ill. Rev. Stat. 1981, ch. 38, par. 33B — 1 et seq.) is unconstitutional because it: (a) requires the court to sentence an offender to life imprisonment if it finds him to be an habitual criminal and allows the court no discretion in this matter, or (b) permits the State to determine whether or not a life sentence will be imposed without setting out any standards which it must follow in making this determination.

The pertinent evidence adduced at trial reveals the following: Eddie Davis testified that he was store manager of a fried chicken restaurant on South Pulaski Avenue in Chicago during the early morning hours of October 19, 1980. At about 2 a.m. while he was working the front register and Dwayne Lacey, the side, drive-thru register to his right, defendant’s accomplice, later identified as Gerald King, pointed a gun at Davis and told him, “This is a stickup.” As King moved to Lacey’s register, defendant stepped in front of Davis’ register and had him call his assistant manager, Vickie Cox, to the front. Defendant then jumped over the counter. He was just under six feet but much heavier than King, whom Davis had described as slim. He had a heavy beard, and was wearing a light-colored waist-length beige jacket and a cowboy hat of the same color.

Once over the counter, defendant “directed” Davis back to an office in the rear of the store where the safe was located. Davis could not remember the combination to the safe so he called Cox and asked her to open the safe, which she did. At about this time, King informed defendant that the police were outside. Defendant returned to the front of the store and watched King back out of the front door with the 10 or 15 customers who were in the store at the time. He then picked up the gun King had left on the counter, looked around the store, noticed a door in the back, asked Davis to open it for him and ran out the door. The robbery lasted approximately five minutes. The store was brightly lighted. About one week after the robbery, Davis identified defendant in a six-man lineup.

Dwayne Lacey testified that he was at the drive-thru cash register on the date and at the time of the crimes. King walked up to his register, pulled out a gun, and told him to put the money into a bag and give it to him, which Lacey did. King put the bag into his pocket. Defendant then asked Davis for the keys to the “bleed” boxes beneath the registers where excess cash was placed. When Davis gave him the keys, defendant jumped over the counter, threw the keys to Lacey and told him to open the boxes. Because Lacey was having difficulty, Davis stopped and opened one for him as he was walking past him towards the office. Defendant followed Davis into the office. Davis then called Cox back to the office. While they were there, Lacey took money out of the box and put it into another bag.

Later, police cars began pulling up in front of the store. King called out to defendant who returned to the front of the store. He ■ told King to slide his gun across the counter to him, put his hands up and back out of the store as if he were a customer, which King did. Defendant slipped the gun into his pants, noticed a door towards the back of the store, asked Davis to open it and went out. Defendant was wearing a beige jacket and a beige cowboy hat. Lacey described King and defendant to the police. Four or five days later an investigator showed him a group of pictures and Lacey identified defendant from among them. A few days later he picked King and defendant out of the same lineup Davis had viewed.

Vickie Cox testified that she was on break shortly after 2 a.m. on October 19, 1980, when Davis called her to the front of the store. Defendant was standing on the other side of the counter near the front register pointing a gun at him. He was black and wearing a beige-colored cowboy hat. She saw Lacey take money from his register, put it in a bag and give it to King, who was standing near his register. At defendant’s prompting, Davis walked back to the office, followed by defendant. A few moments later Davis called her to open the safe. Defendant and Davis stood outside the office as she opened it because the room was very small. Defendant left. She did not see him or King again that evening because she stayed in the office until the police arrived. At that time she determined that $50 had been taken from the drive-thru window register. She also found a bag in the customer area of the store containing approximately $300 in $10 and $20 denominations. Four days later, she identified defendant from a photographic display.

Chicago Police Officer Edward Carfora testified that he and his partner, Wayne Klacza, were on duty and in uniform on October 19, 1980, at about 2 a.m. when they learned from a passing motorist that there was a robbery in progress across the street. Carfora pulled into the parking area on the south side of the store and began questioning people there as his partner went to the entrance of the store and did the same. Carfora noticed a man climbing a fence separating the area from the adjacent alley. The man paused a moment at the top of the eight- feet to 10 feet high cyclone fence about three car lengths away from where Carfora was standing. The parking lot was brightly lighted. The man was black, had a beard and a mustache, and was wearing dark blue jeans and a light tan or beige-colored fingertip jacket. The man on the fence was defendant.

Defendant jumped into the alley and then ran toward an empty lot southwest of the store towards Monroe. Carfora doubled back around the fence, called out to his partner and ran after defendant, who by this time was a couple of hundred feet ahead of him. Defendant ran west on Monroe. Carfora followed him. As defendant approached Karlov, Carfora heard a shot coming from that direction. A second later he saw defendant turn and fire a second shot, at him. Carfora saw the flash from the muzzle of the gun and returned the fire, shooting at defendant six times in rapid succession. He saw defendant turn north on Karlov, but paused to reload his revolver. He did not see defendant again that evening, although he and other policemen searched the hallways, gangways, and basements of the buildings in the vicinity in an attempt to find him. Carfora returned to the store about half an hour later and found a tan-colored cowboy hat in the southwestern corner of the property where he had seen defendant climbing the fence.

On cross-examination, Carfora stated that defendant had paused at the top of the fence for a couple of seconds; that he had lost sight of him momentarily after he had jumped over the fence; and again when the witness turned west onto Monroe and then north onto Karlov. Defense counsel showed Carfora a report in which he had described the lighting as poor. On redirect, Carfora explained that the report to which defense counsel had referred was a special report all policemen are required to file whenever they fire their revolvers under circumstances which might endanger the life of another and described the lighting conditions on Monroe near Karlov where he had shot at defendant, and not the lighting conditions in the parking area outside the store where he had first seen him. Carfora later identified defendant at the lineup previously mentioned.

Officer Klacza testified that when he and Carfora pulled up in front of the fast-food store, he went directly to the entrance of the premises where several people were standing. Ten or fifteen people were inside the restaurant at the time. As he approached the entrance to the store, two of them came out. He stopped them, pushed them against the plate glass window to the right of the entrance, and as he began to interrogate them, saw a man wearing a beige jacket and a cowboy hat on the employee side of the counter. The man was black, 5 feet 10 inches or 11 inches tall, heavyset, and had a beard. The man was defendant. He was defendant go to the back of the store but continued to search the two men in front of him until another man came running out of the store and told him that the man in the cowboy hat was going out the back door and was armed. Klacza ran around the north side of the building towards the rear of the store. He heard Carfora call out that someone was going over the fence, he turned back and ran around the front of the store. Klacza ran around the fence after Carfora. As he was running through the lot, he heard two shots, and then another six fired in rapid succession. He caught up with Carfora at the corner of Karlov and Monroe. After unsuccessfully searching for defendant, they returned to the store where they found the cowboy hat defendant was wearing in a garbage bin behind the store. The store was well lighted. About a week later, he picked King and defendant out of the six-man lineup previously described.

Lawrence W. Soltysiak, a detective with the Area Four Violent Crimes Unit, spoke with Carfora, Klacza, Davis, Lacey, Cox and Christine Watts that morning. Watts was working in the kitchen at the time of the robbery, but was never called to testify. Later, he went back to the store and showed Lacey and Cox seven photographs. Each identified defendant as one of the two men who had robbed the store. On October 24, 1980, he spoke with a nurse at Evanston Hospital, who identified defendant as a man whom they had treated on the morning of October 19, 1980. Soltysiak arrested defendant three days later and conducted the lineup, referred to earlier, later that day.

The nurse, Mary Harrigan, corroborated Soltysiak’s testimony.

The parties then stipulated that, if called, a Dr. Bloom of Evanston Hospital would testify that he treated defendant for a gunshot wound to the upper right back on October 19, 1980, but did not remove the bullet lodged there because it was medically better not to. The parties also stipulated that defendant was 25 years old at the time of the robbery.

After their respective exhibits were admitted, both sides rested, the defense without calling any witnesses. At that time the circuit court granted defendant’s motion for a directed verdict with respect to the armed robbery count relating to Davis but denied it as to all other counts. The jury subsequently found defendant not guilty of attempted murder of Officer Carfora, but guilty of armed robbery of Lacey, unlawful restraint of Davis, and armed violence predicated upon the latter offense. The circuit court then entered judgment of conviction on the armed robbery and armed violence counts only, finding that the unlawful restraint verdict merged into the latter. The court later found defendant to be an habitual criminal and sentenced him to life imprisonment.

I

Defendant first argues that by excluding all blacks from the jury, the State deprived him of his right to an impartial jury to which he is entitled under the sixth amendment to the United States Constitution and article I, section 8 of the Illinois Constitution. He contends that both provisions require the jury to be drawn from a representative cross section of the community. The State exercised seven of nine peremptory challenges to exclude blacks who might otherwise have been impaneled. As a result, defendant was tried by an all-white jury. Defendant contends that the State excluded these prospective black jurors simply because they were black.

The record reveals that the jurors were diverse but alike in many ways. Most were homeowners and middle-aged. Many had one or more children still in school. Some were young and unmarried. Some were members of civic or church-related organizations or associations, but most were not. Most read the same kinds of magazines — Time, Reader’s Digest, Sports Illustrated, National Geographic. Two were members of the National Rifle Association. For these reasons defendant contends that the circuit court erred when it refused to require the State to show that it had not excluded all the prospective black jurors simply because they were black, citing People v. Payne (1982), 106 Ill. App. 3d 1034, 436 N.E.2d 1046, People v. Gosberry (1982), 109 Ill. App. 3d 674, 440 N.E.2d 954, and People v. Gilliard (1983), 112 Ill. App. 3d 799, 445 N.E.2d 1293.

The supreme court recently (May 27, 1983) considered the same issue, under substantially similar facts, in People v. Williams (1983), 97 Ill. 2d 252. The Williams opinion discusses each of the authorities cited by defendant and holds:

“In People v. Davis (1983), 95 Ill. 2d 1, we rejected a contention by the defendant that the State’s exercise of peremptory challenges which resulted in an all-white jury deprived the defendant of a fair and impartial jury. We noted that the contention was contrary to Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824, in which the Supreme Court held that an exercise of peremptory challenges which resulted in the selection of a jury composed of white jurors did not of itself show a constitutional violation. Under Swain, a constitutional issue of equal protection could not arise unless there was a systematic and purposeful exclusion of blacks because of race from juries in case after case. 380 U.S. 202, 223, 13 L. Ed. 2d 759, 774, 85 S. Ct. 824, 837.
* * *
The defendant here cites another decision, in which the exclusion of blacks through the use of peremptory challenges was held to be a violation of Federal constitutional law. That case, People v. Payne (1982), 106 Ill. App. 3d 1034, was decided by the third division of the First District of the appellate court. It was held that the use of peremptory challenges by the State to exclude blacks from a jury during voir dire because they are black is a violation of the defendant’s right to a jury drawn from a fair cross section of the community. The Payne court relied upon Taylor v. Louisiana (1975), 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692, in which the Supreme Court held that it is fundamental to the sixth amendment guarantee of an impartial jury that ‘the defendant in a criminal trial [have] the opportunity to have the jury drawn from venires representative of the community.’ (419 U.S. 522, 537, 42 L. Ed. 2d 690, 702, 95 S. Ct. 692, 701.) ***
The court in Payne believed that the use of peremptory challenges in particular cases to exclude members of any discrete group because of their group affiliations also was invalid, because otherwise ‘the constitutional right to a jury drawn from a fair cross section of the community could be rendered a nullity through the use of peremptory challenges.’ (People v. Payne (1982), 106 Ill. App. 3d 1034, 1037.) The Payne court said that Swain was not controlling in the circumstances because in Swain the defendant’s challenge was based upon the equal protection clause in the fourteenth amendment, not upon the sixth amendment. ***
The division of the appellate court that decided Payne has followed its decision in subsequent cases. (People v. Gilliard (1983) , 112 Ill. App. 3d 799; People v. Gosberry (1982), 109 Ill. App. 3d 674.) Payne has been considered and rejected, however, by two other divisions of that court. People v. Newsome (1st Dist., 2d Div. 1982), 110 Ill. App. 3d 1043; People v. Teague (1st Dist., 1st Div. 1982), 108 Ill. App. 3d 891.
Payne does not satisfactorily meet the questions which must be addressed in considering the problem.” (97 Ill. 2d 252, 274-76.)

The Williams opinion went on to discuss the Swain and Taylor cases, as follows:

“We consider that the authority of Swain was not lessened because of the recognition of a sixth amendment fair-cross-section requirement in Taylor v. Louisiana (1975), 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692. The court in Taylor held that it is fundamental to the sixth amendment right to a jury trial that the selection of a petit jury be from a representative cross section of the community. * * *
There was no retreat in the Taylor opinion from the view that it is an essential part of our system of trial by an impartial jury that both sides be allowed in particular cases to exercise peremptory challenges on any ground they select. It appears that the complaint addressed in Taylor is the systematic exclusion of a group from the jury system, not from any particular jury.” (97 Ill. 2d 252, 278.)

The supreme court in Williams thus rejected the same constitutional argument defendant raises in the case before us. It declined to approve Payne or Gilliard and summarily reversed Gosberry. (People v. Gosberry (1983), 93 Ill. 2d 544.) To the same effect are also People v. Osborn (1983), 111 Ill. App. 3d 1078, 444 N.E.2d 1158; People v. Baylor (1982), 111 Ill. App. 3d 286, 443 N.E.2d 1137; People v. Jones (1983), 114 Ill. App. 3d 576; People v. McCray (1982), 57 N.Y.2d 542, 443 N.E.2d 915, cert. denied (1983), _ U.S. _, 77 L. Ed. 2d 1322, 103 S. Ct. 2438.) Accordingly, defendant’s argument must be rejected. People v. Jones (1983), 114 Ill. App. 3d 576, 585.

II

Defendant next argues that he was deprived of his right to a fair trial because his trial counsel informed the jury in her opening remarks that the defense would establish an alibi, but during trial never offered any evidence tending to establish this defense, and never explained to the jury why she had not. Such conduct, he insists, constituted actual incompetence which deprived him of a fair trial. In addition, he contends that by promising to present an alibi defense counsel may have given the jury the impression that he was not only required to rebut the State’s evidence but also to present evidence of his own. For this reason defendant believes that the jury may have decided the case on the weaknesses of his case rather than upon the strength of the State’s case, which would have constituted plain error. (People v. Coulson (1958), 13 Ill. 2d 290, 149 N.E.2d 96; People v. Poltrock (1974), 18 Ill. App. 3d 847, 310 N.E.2d 770; and People v. Carroll (1970), 119 Ill. App. 2d 314, 256 N.E.2d 153.) These cases are factually distinguishable, however, since in each the reviewing courts found the evidence offered by the State to be so improbable and unsatisfactory that they could not in good conscience affirm defendant’s conviction. In the instant case, the evidence of defendant’s guilt is overwhelming. See People v. Lewis (1981), 97 Ill. App. 3d 982, 423 N.E.2d 1157; People v. Tilden (1979), 70 Ill. App. 3d 859, 388 N.E.2d 1046.

Further, defense counsel here thoroughly and vigorously cross-examined and re-cross-examined the State’s witnesses in an attempt to weaken the impact of their testimony; raised numerous objections; successfully, in part, moved for a directed verdict; presented a thorough and well-organized closing argument; moved for a new trial; and made extensive arguments in mitigation. Her failure to present alibi evidence is unexplained; however, the decision to call or not to call witnesses to testify on defendant’s behalf is a matter of trial strategy. (People v. Tate (1981), 94 Ill. App. 3d 192, 418 N.E.2d 1048.) Further, the court instructed the jury that neither opening statements nor closing statements are evidence and that statements made by counsel not based upon the evidence must be disregarded. (Illinois Pattern Jury Instruction, Criminal, No. 1.03 (2d ed. 1981).) In considering counsel’s competency, the totality of her conduct at trial must be considered, not merely particular errors alleged. (People v. Murphy (1978), 72 Ill. 2d 421, 435-38, 381 N.E.2d 677.) The overall performance of defense counsel here was not of such a caliber so as to produce substantial prejudice without which the result of the trial would have been different. People v. Greer (1980), 79 Ill. 2d 103, 121, 402 N.E.2d 203; People v. Royse (1982), 107 Ill. App. 3d 326, 330-34, 437 N.E.2d 679; People v. Pendleton (1982), 104 Ill. App. 3d 1104, 1109, 433 N.E.2d 1076; People v. Corder (1982), 103 Ill. App. 3d 434, 437, 431 N.E.2d 701.

III

Defendant maintains that because the separate acts upon which armed robbery and armed violence convictions were predicated occurred within moments of each other in the course and in furtherance of the alleged armed robbery, his armed violence conviction should be vacated. In People v. Myers (1981), 85 Ill. 2d 281, 288, 426 N.E.2d 535, the supreme court affirmed convictions for armed robbery, aggravated kidnaping and armed violence where defendant had held a machete to the victim’s throat and cut into it several times, the last time severing the victim’s windpipe, stating: “As long as there are multiple acts as defined in [People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838], their interrelationship does not preclude multiple convictions and the imposition of concurrent sentences based upon them.” (See People v. Prude (1980), 86 Ill. App. 3d 1039, 408 N.E.2d 506.) In light of the foregoing authorities, the concurrent sentences defendant received for armed robbery predicated upon the taking of money from Lacey, and armed violence predicated upon the unlawful restraint of Davis, were properly imposed since, albeit incidental and closely related, yet they were separate and distinct offenses.

IV

Defendant challenges the constitutionality of the act relating to habitual criminals (Ill. Rev. Stat. 1981, ch. 38, par. 33B — 1 et seq.) (act) under which he was sentenced. In 1975, defendant had been convicted of the felonies of .armed robbery, rape and deviate sexual assault. He was convicted in 1979 for the felonies of attempted murder and attempted armed robbery. Each 1975 and 1979 offense contained the same elements as those now designated as Class X felonies, thereby fulfilling the initial requirements of the act. (Ill. Rev. Stat. 1981, ch. 38, par. 33B — 1(a).) The current offenses were committed on October 19, 1980, more than four months after the effective date of the act; they were committed within 20 years of the judgment entered on the first felony convictions in 1975; they were committed after the second felony convictions in 1979; and the second offense was committed after conviction on the first offense. This conviction history satisfies additional prerequisite statutory standards for application of the act. Ill. Rev. Stat. 1981, ch. 38, pars. 33B — 1(d)(1), (2), (3), (4). •

One of defendant’s claims of unconstitutionality is that the statute mandatorily requires the circuit court to sentence a defendant found to be an habitual criminal to natural life imprisonment (Ill. Rev. Stat. 1981, ch. 38, pars. 33B — 1(e), 1005 — 5—3(c)(5)), thereby precluding judicial opportunity to tailor the sentence to be imposed to fit the particular circumstances of each case. Such action, according to defendant, constitutes undue infringement on judicial power and violates article II, section 1 of the 1970 Illinois Constitution, which provides, in part, that “No branch shall exercise powers properly belonging to another.” Defendant misconceives the respective roles of the legislature and the judiciary in this regard. It is the legislature’s prerogative to determine what conduct shall constitute a crime and what penalty shall be imposed for its commission, unless the challenged penalty is clearly in excess of constitutional limitations. (People ex rel. Carey v. Bentivenga (1981), 83 Ill. 2d 537, 542, 416 N.E.2d 259; People v. Gonzales (1962), 25 Ill. 2d 235, 240, 184 N.E.2d 833; People v. Landers (1927), 329 Ill. 453, 457, 160 N.E. 836.) We find no such excesses in the act.

Defendant also contends that the act is unconstitutional because it gives the prosecutor unbridled discretion in deciding whether or not to seek the imposition of a life sentence in any given case. He points to section 33B — 2(a) of the act which provides, in part, that the prosecutor “may” file a verified written statement setting forth a former conviction of a section 33B — 1 offense. Assuming, arguendo, that the act may be so construed, an analogous procedure was considered by the supreme court in People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531, 397 N.E.2d 809. There, the constitutionality of section 9 — 1(d) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(d)) was upheld, which provides that the State must first request the death sentence before it can be imposed. The argument in Cousins, that prosecutorial discretion violated due process and the separation of powers doctrine, was rejected by the court,' which observed that the State’s Attorney has always enjoyed wide discretion, including the decision of whether to initiate any prosecution at all, to choose which of several charges shall be brought, and to manage the criminal litigation, citing People v. Rhodes (1967), 38 Ill. 2d 389, 396, 231 N.E.2d 400, People v. McCollough (1974), 57 Ill. 2d 440, 313 N.E.2d 462, appeal dismissed (1974), 419 U.S. 1043, 42 L. Ed. 2d 637, 95 S. Ct. 614, People v. Brooks (1976), 65 Ill. 2d 343, 349, 357 N.E.2d 1169, and People v. Golz (1977), 53 Ill. App. 3d 654, 658, 368 N.E.2d 1069, cert. denied (1978), 437 U.S. 905, 57 L. Ed. 2d 1134, 98 S. Ct. 3091, among other authorities.

Section 33B — 1(a) provides, in part, as follows:

“(a) Every person who has been twice convicted in any state or federal court of an offense that contains the same elements as an offense now classified in Illinois as a Class X felony or murder, and is thereafter convicted of a Class X felony or murder, committed after the 2 prior convictions, shall be adjudged an habitual criminal.” (Emphasis supplied.) (Ill. Rev. Stat. 1981, ch. 38, par. 33B — 1(a).)

The foregoing language of the statute does not explicitly delegate to the State the power to choose which defendants shall be made subject to its terms. Rather, its provisions apply to “every person” who meets its criteria. The word “may” in section 33B — 2(a) can be read as prescribing how the prosecutor brings to the court’s attention a defendant’s prior conviction history.

Defendant’s final contention with respect to the constitutionality of the habitual criminal act is that the imposition of a mandatory natural life sentence without the possibility of early release, parole or consideration of mitigating circumstances violates the eighth and fourteenth amendments of the United States Constitution. Under section 3 — 3—3(d) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1003 — -3—3(d)), those persons sentenced to a term of natural life imprisonment may not be paroled or released except through executive clemency. An exhaustive review of recidivist and habitual criminal statutes enacted throughout the nation was undertaken by the United States Supreme Court in Rummel v. Estelle (1980), 445 U.S. 263, 63 L. Ed. 2d 382, 100 S. Ct. 1133 (Rummel). There, in a five to four decision, the Supreme Court overruled similar constitutional challenges to a Texas recidivist statute which prescribed life imprisonment upon conviction of three felonies. The majority observed that the statute mandated such a sentence only after shorter terms of imprisonment proved ineffective (445 U.S. 263, 278 n.17, 63 L. Ed. 2d 382, 394 n.17, 100 S. Ct. 1133, 1141 n.17), and that the purposes of such recidivist statutes are to “deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time.” (445 U.S. 263, 284, 63 L. Ed. 2d 382, 397, 100 S. Ct. 1133, 1144-45.) The crimes at issue in Rummel were relatively innocuous financial offenses; those involved in the present case were violent crimes against persons, categorized as Class X felonies.

Although a distinguishing factor in Rummel is that, under the Texas statute, parole was described as a “slim” possibility, but not a “right,” available to a convicted felon (445 U.S. 263, 280-81, 63 L. Ed. 2d 382, 395, 100 S. Ct. 1133, 1142), the dissent noted that parole is simply an act of executive clemency which the Governor of Texas exercised very sparingly in recommendations made to him for release (445 U.S. 263, 294, 63 L. Ed. 2d 382, 403, 100 S. Ct. 1133, 1149). Section 3 — 3—3(d) of the Illinois Unified Code of Corrections specifically makes clear that executive clemency may be invoked in behalf of one serving a term of natural life imprisonment. In this connection observations by the United States Supreme Court in Schick v. Reed (1974), 419 U.S. 256, 42 L. Ed. 2d 430, 95 S. Ct. 379, should be considered. In that case, the President of the United States had commuted the sentence of death of a soldier for murder to a term of natural life imprisonment without parole or suspension of sentence. The Supreme Court referred to certain statutes and observed that “The no-parole condition attached to the commutation of [a] death sentence is similar to sanctions imposed by legislatures such as mandatory minimum sentences or statutes otherwise precluding parole; it does not offend the constitution.” (419 U.S. 256, 267, 42 L. Ed. 2d 430, 439, 95 S. Ct. 379, 385.) Among the statutes to which it referred was section 848 of the Federal controlled substances act (21 U.S.C. sec. 848 (1970)). Under section 848(a)(1) any person who engages in a continuing criminal enterprise shall be sentenced to terms of imprisonment which may include life imprisonment. Under section 848(c) of the act, imposition or execution of such sentences shall not be suspended and probation shall not be granted. Another such statute to which the Supreme Court referred was adopted by Massachusetts (Mass. Gen. Laws Ann., ch. 265, sec. 2 (West 1970)), which provides for life sentence without parole for first degree murder unless commuted by the governor and council. Such sentences have the same effect as the imposition of a natural life sentence as provided for in the Illinois habitual criminal act. A similar provision was referred to by the majority in Rummel without suggestion of constitutional infirmity, namely, the Mississippi recidivist statute (Miss. Code Ann. sec. 99 — 19—83 (Supp. 1979)), which provides for a life sentence without parole upon conviction of three felonies including at least one violent felony (445 U.S. 263, 281, 63 L. Ed. 2d 382, 395, 100 S. Ct. 1133, 1143). It may be inferred from the foregoing that the United States Supreme Court has recognized as constitutionally permissible sentences of life imprisonment without the possibility of parole, as in the instant case.

In a case recently decided, People v. Taylor (1983), 115 Ill. App. 3d 621, defendants were found guilty of the murders of two persons. The appellate court there held that section 5 — 8—1(a)(1)(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8— 1(a)(1)(c)), imposing mandatory natural life imprisonment, must be construed as discretionary rather than mandatory in order to avoid violation of article I, section 11 of the 1970 Illinois Constitution. In that case, however, because defendants murdered more than one victim in related circumstances, the statute’s mandatory provisions applied and the statute could have been construed so as to have required imposition of natural life sentences without a court ever having considered rehabilitative or mitigating factors. The statute involved at bar, section 33B — 1, is significantly different, however. The mandatory aspect of section 33B — 1 is not triggered unless and until three Class X felonies have been committed within 20 years of the date of the first conviction, among other requirements. As will be seen presently, two previous adjudications afforded defendant opportunities to present mitigating evidence and sentencing alternatives at which the circuit court could have exercised discretion in determining appropriate penal dispositions.

The foregoing approach was taken in People ex rel. Carey v. Chrastka (1980), 83 Ill. 2d 67, 413 N.E.2d 1269, in which the supreme court upheld the constitutionality of section 5 — 12 of the Juvenile Court Act, involving habitual juvenile offenders (Ill. Rev. Stat. 1981, ch. 37, par. 705 — 12). That act provides that a juvenile who is three times adjudicated a delinquent for having committed an offense that would be a felony if committed by an adult, shall be confined until he reaches the age of 21. In rejecting the argument that the mandatory confinement to age 21 violated the rehabilitative objective of article I, section 11 of the 1970 Illinois Constitution, the supreme court stated that the legislature could legitimately find that one who has committed three serious offenses has benefitted little from the rehabilitative measures of the juvenile court system and exhibited little prospect for restoration to meaningful citizenship. The court found that because there was prior consideration of mitigating or rehabilitative factors in the two previous predicate adjudications, the “rehabilitative purposes of the system are not completely foresaken, but after the commission by an individual of a third serious offense, the interest of society in being protected from criminal conduct is given additional consideration.” 83 Ill. 2d 67, 80.

In the case sub judice, defendant’s previous predicate felony convictions in 1975 and 1979 involved consideration of his rehabilitation prospects through sentencing hearings at which the courts were required to consider, inter alia, presentence reports, evidence and information offered by the parties in aggravation and mitigation, and arguments as to sentencing alternatives. (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 4—1(a); Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 4—1(a).) Imposition of a natural life sentence in the present case was mandated by the act only after commission in 1980 of his third series of Class X felonies. The requisite attention to rehabilitative measures required by article I, section 11, therefore has been fulfilled.

Accordingly, the challenges raised by defendant to the constitutionality of the act relating to habitual criminals cannot be sustained.

From the foregoing discussion, no bases for disturbing defendant’s convictions or sentences emerge; they must, therefore, be affirmed.

Affirmed.

STAMOS and PERLIN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE JOHNSON JUSTICE JIGANTI,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWIN JIMINEZ, Defendant-Appellant.
    First District (4th Division)
    No. 80—3081
    Opinion filed June 30, 1983.
    Rehearing denied August 18, 1983.

      JIGANTI, J., dissenting.
    Steven Clark, Patricia Unsinn, and Phillip J. Zisook, all of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Shapiro, and Edward Barron, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

The defendant, Edwin Jiminez, appeals his convictions of attempted murder and murder (Ill. Rev. Stat. 1979, ch. 38, pars. 8— 4(a), 9 — 1(a)). Following a jury trial, defendant was convicted and sentenced to two concurrent terms of 25 years in the Illinois State Penitentiary. On appeal, defendant contends (1) that the proper jury instructions were not given; (2) that certain evidence was improperly excluded; (3) that he was prejudiced by certain remarks of the prosecutor; and (4) that his counsel was incompetent.

We affirm.

Evidence adduced at trial may be summarized as follows: defendant shot and killed Mario Cantu and wounded Victor Padrón on February 29, 1980. The shootings occurred in the lobby of an apartment building at 1819 North Humboldt in Chicago, Illinois." Prior to the shooting, Cantu and Padrón were in the lobby for a few hours drinking rum. At about 5 p.m., defendant and some others entered the lobby. An argument ensued involving defendant, Padrón and Cantu. Defendant claimed that Cantu pulled a gun and threatened him. Although threats were made, no blows were stuck. Defendant and his friends left the lobby, as did Padrón and Cantu, shortly afterward. Approximately two hours later when Padrón and Cantu returned to the lobby, defendant was there. Name-calling followed. Defendant testified that the deceased (Cantu) had a gun and when Cantu attempted to shoot him, defendant shot back with a shotgun. Cantu was shot in the back. Defendant then fired two additional blasts at Padrón as the latter fled the lobby and shot once over Padron’s head as he ran down the street. At trial, defendant maintained that he acted in self-defense.

First, defendant asserts that the jury should have been given instructions on voluntary manslaughter and specific intent. The trial judge’s failure to do so denied him his right to a fair trial.

This issue was not raised in a written post-trial motion. Assuming, arguendo, that the issue has not been waived, erroneous refusal of jury instructions is not an automatic vehicle of reversal. When, as in this case, the evidence supporting the jury’s finding is clear and convincing, then the error is harmless. See People v. Jones (1979) , 81 Ill. 2d 1, 405 N.E.2d 343.

Next, defendant contends that the trial court’s exclusion of evidence of Padron’s and Cantu’s prior criminal activities and Padron’s convictions were prejudicial to his defense.

After listening to both parties, the trial judge stated that the prior criminal convictions involved could not be used to show a person’s propensity to commit a crime. The record reflects that defense counsel’s argument supports the trial judge’s ruling. In fact, defense counsel stated that the acts in question show “propensity toward violence.” Even in cases where the defense of self-defense is raised, the victim’s character trait for aggression cannot be introduced unless it is shown that the defendant knew of the trait. (People v. Wolski (1980) , 83 Ill. App. 3d 17, 30, 403 N.E.2d 528, 538.) There is no such showing here. Therefore, the trial court correctly applied Illinois law in excluding the evidence in question.

Defendant next contends that State improperly insinuated that he was a member of a gang and that those remarks resulted in a violation of his constitutional rights. Defendant speculates as to what the jury’s reasons were for rejecting his self-defense testimony. He apparently concludes that the prosecutor’s remarks were the reason for his conviction. This argument is without merit.

There was sufficient evidence from which the jury could reasonably make a finding of guilty without the remarks complained of by defendant. Defendant testified that he shot the victims and fired two additional shots at Padrón as the latter tried to flee. The pathologist’s report showed that the deceased was shot in the back. The error complained of is not apparent, neither from the record nor from defendant’s argument.

Defendant’s final contention is that his trial counsel was incompetent, thus, denying him the right to effective assistance of counsel.

Since Cuyler v. Sullivan (1980), 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708, several Illinois appellate court decisions suggest a shift toward applying a single standard of competence for both retained and appointed counsel. Those courts have said that the defendant must demonstrate actual incompetence of counsel which affects the outcome of the case. (See People v. Talley (1981), 97 Ill. App. 3d 439, 422 N.E.2d 1084; People v. Scott (1981), 94 Ill. App. 3d 159, 418 N.E.2d 805.) This standard has not been applied by the Illinois Supreme Court.

With the benefit of hindsight, defendant points out specific acts or omissions by his trial counsel as proof of the lawyer’s incompetence. A careful review of the record reveals nothing that rises to the level of incompetence. The acts and omissions complained of are well within the recognized areas of judgment and trial technique which every trial lawyer must determine on an individual basis. (See People v. Elder (1979), 73 Ill. App. 3d 192, 391 N.E.2d 403.) We cannot conclude that defendant’s trial attorney was incompetent.

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

Affirmed.

LINN, J., concurs.

JUSTICE JIGANTI,

dissenting:

The defendant testified that he pulled his gun and shot Mario Cantu only after Cantu began to remove a gun from his pocket and pivoted to shoot the defendant. The defense hinges on the reasonableness of the defendant’s belief at the time he shot and killed Cantu. If his belief that the use of force was necessary was reasonable, his act is an act of self-defense and he is entitled to be acquitted under section 7 — 1 of the Illinois Criminal Code of 1961. (Ill. Rev. Stat. 1981, ch. 38, par. 7 — 1).) If, however, his belief was unreasonable he is guilty of voluntary manslaughter under section 9 — 2(b). (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 2(b).) The failure of the court to give the instruction on voluntary manslaughter prevented the defendant from having the jury properly consider the issue central to his defense, that is, the reasonableness of his belief.

The majority concedes that the trial court erroneously failed to give the voluntary manslaughter instruction but contends that the error is harmless because the evidence is clear and convincing. In my judgment the evidence is anything but clear and convincing, particularly when one considers that the subjective nature of the defendant’s defense rests upon the reasonableness of his belief that the use of force was necessary.

Accordingly, I would reverse the defendant’s conviction for murder and remand this case for a new trial.


author: PRESIDING JUSTICE ROMITI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JESSIE J. McKINLEY, Defendant-Appellant.
    First District (4th Division)
    No. 81—1006
    Opinion filed June 30, 1983.
    Steven Clark, of State Appellate Defender’s Office, of Chicago (James R. Yogler and Douglass G. Hewitt, both of Winston & Strawn, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Paula Carstensen, and Thomas Gearen, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

Defendant Jessie McKinley, convicted of murder in a jury trial, contends on appeal that: (1) the summary restoration of his fitness to stand trial, based on stipulated psychiatric conclusions, was improper; and (2) the prosecution used its peremptory challenges to exclude blacks from the jury in a manner which violated defendant’s right to an impartial jury.

We reverse and remand.

On November 16, 1978, defendant was charged with two counts of murder and two counts of armed violence in connection with the shooting death of Jeffrey Benas. At the request of defense counsel, Judge Barbaro on November 22, 1978, ordered the Psychiatric Institute of the circuit court of Cook County to examine defendant as to his fitness to stand trial and his sanity at the time of the offense.

Defendant was examined on December 27, 1978, by Dr. Gilbert Bogen, a staff psychiatrist at the Institute. In a letter to the court Bogen reported that based upon his examination the defendant was not mentally fit to stand trial because of an inability to cooperate with counsel in his own defense. On the trial court’s order defendant was then examined by the Illinois Mental Health Institute from January 17, 1979, to January 31, 1979. In a letter to Judge Barbaro dated January 31, 1979 Dr. Edith D. Hartman, a staff psychiatrist, informed the court that based on extensive physical, psychological and psychiatric evaluation of the defendant it had been determined that he was unfit for trial. Dr. Hartman further reported:

“The psychological test finds [defendant] in the borderline defective range (full scale IQ 70.) This young man is very sick and in dire need of treatment. His mental illness renders him dangerous to others. *** In summary, the diagnosis is Schizophrenia, Chronic Undifferentiated type, unfit for trial and fulfilling criteria for involuntary hospitalization.”

In a fitness hearing conducted February 1, 1979, based upon these opinions as stipulated into the record, defendant was found unfit to stand trial and in need of mental treatment. He was remanded to the Department of Mental Health and was committed to the Chester Mental Health Clinic for treatment.

In a letter dated May 31, 1979, Dr. Bogen informed the court that he had that day examined the defendant and had concluded that defendant was mentally fit for trial. Other than stating that defendant understood the nature of the charges and the purpose of the proceedings and was able to cooperate with counsel, the letter contained no further details concerning the examination conducted by Bogen or the basis for his conclusions. On September 10, 1979, the restoration hearing at issue was held. At that hearing defense counsel waived a jury on behalf of the defendant. It was then stipulated between the parties that:

“*** Dr. Bogen being a member of the Psychiatric Institute of the Circuit Court of Cook County, would testify that on May 31, 1979, he had occasion to examine the defendant before the Court, Jessie McKinley, and at that time making observations and after interviewing Mr. Jessie McKinley came to the opinion, and so stated it is his opinion that the defendant is mentally fit to stand trial and that he understands the nature of the charges pending against him, the purpose of the proceedings, and that he is able to cooperate with counsel in his own defense.”

The prosecution and the defense rested and the court found the defendant fit to stand trial. The record does not affirmatively indicate that the defendant was present at the hearing.

Defendant’s trial did not commence until March 10, 1981. He did not testify at that trial.

I

Citing People v. Greene (1981), 102 Ill. App. 3d 639, 430 N.E.2d 219, defendant contends that the trial court cannot be said to have exercised its discretion in finding defendant fit to stand trial based merely on a conclusionary stipulation. In Greene a defendant who had been found unfit 11 months earlier was examined by the same doctor and found fit for trial. A second doctor examined the defendant and also found him fit. At a subsequent fitness hearing the trial court found the defendant fit to stand trial based solely on the stipulated findings of the two doctors. On appeal the Greene court noted that defendant’s prior adjudication of unfitness raised the presumption that his condition of unfitness remained until a valid subsequent hearing resulted in an adjudication of fitness. (People v. McKinstray (1964), 30 Ill. 2d 611, 198 N.E.2d 829; People v. Williams (1980), 92 Ill. App. 3d 608, 415 N.E.2d 1192.) The court held that this subsequent determination of fitness could not be based upon mere stipulation to the existence of psychiatric conclusions because “the issue of fitness to stand trial is one of constitutional dimension, and the trial record must affirmatively show the exercise of judicial discretion and judgment insofar as a finding of fitness is concerned.” (People v. Greene (1981), 102 Ill. App. 3d 639, 642, 430 N.E.2d 219, 221.) The Greene case has recently been followed in People v. Lewis (1983), 112 Ill. App. 3d 626, where the court again found that a restoration hearing based solely on stipulated psychiatric testimony was invalid. The Lewis court also held that the defendant, who was presumptively unfit as the result of a prior adjudication of unfitness, was in no position to authorize such a stipulation nor was his counsel justified in doing so for him.

We find this cause to be controlled by those prior cases. The defendant was found to again be fit based solely on stipulated psychiatric conclusions. The stipulation did not even include any information as to the underlying foundation for the conclusions. The trial judge cannot be said to have properly exercised his discretion in finding the defendant fit based on such a skeletal hearing. Accordingly we reverse defendant’s conviction and remand the cause for a new hearing.

II

Defendant has also contended on appeal that the prosecution improperly used its peremptory challenges to exclude all but one black from the jury. However in failing to secure a transcript of the voir dire defendant has precluded this court from reviewing that claim. (People v. Dixon (1982), 105 Ill. App. 3d 340, 434 N.E.2d 369; People v. Bracey (1981), 93 Ill. App. 3d 864, 417 N.E.2d 1029.) Moreover defendant’s reliance on People v. Payne (1982), 106 Ill. App. 3d 1034, 436 N.E.2d 1046 (Illinois appeal pending, No. 56907), is of no avail in the light of our supreme court’s rejection of the holding of that case in People v. Williams (1983), 97 Ill. 2d 252.

Defendant’s conviction is reversed and the cause is remanded for further proceedings in accordance with this opinion.

Reversed and remanded.

JOHNSON and JIGANTI, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CESAR MORENO, Defendant-Appellant.
    First District (2nd Division)
    No. 82—808
    Opinion filed June 28, 1983.

      Jerome Rotenberg, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Marie Quinlivan, and Jeanette Sublett, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HARTMAN

Following a bench trial, defendant was found guilty of reckless homicide and sentenced to 30 months adult probation with eight months of periodic imprisonment and prohibited from operating a motor vehicle. The issues raised on appeal include whether: (1) defendant was proven guilty of reckless homicide beyond a reasonable doubt; (2) the indictment sufficiently set forth the elements of the reckless homicide offense; and, (3) the State’s motion for a protective order was properly granted.

For the reasons given below, we affirm.

At about 9 p.m. on June 26, 1981, a motorcycle driven by defendant either struck or collided with eight-year-old Steve Sobieraj riding a bicycle near 8400 South Burley Avenue, resulting in the latter’s death. The rear passenger on defendant’s motorcycle, Anacleto Torres, stated that before the accident he told defendant not to “go fast.” Defendant replied, “Don’t worry about it.” Defendant also told him that he was going to “catch up” to the driver of the first motorcycle. Defendant slowed down to swerve around a pickup truck and then accelerated to about 40 or 45 miles per hour in the middle of Burley Avenue when Torres heard a thump. Defendant did not cross the center line to travel in the west side of the street. Torres' head was turned and his eyes watery because of the wind. He did not see the center line orla, child on a bicycle.

The victim’s 13-year-old sister, Cindy Sobieraj, stated in effect that 10 to 12 children were playing in the area near the incident. Two motorcycles came, the second of which crossed the yellow line and hit the victim who was on the west side of Burley Avenue going toward 84th Street. The victim bounced up in the air, hit the ground and was dragged 140 feet. The testimony of Richard Sobieraj, age 16, substantially corroborated Cindy’s testimony. He added that the victim was hit from behind while riding his bicycle against traffic. The examining physician was of the opinion that the victim was struck from behind.

Anna Carrillo’s testimony was essentially in accord with that given by Cindy and Richard Sobieraj. Her testimony, however, was contradicted by her prior statements to investigating police officers.

Jesus Bustos, the driver of the first motorcycle, stated that whenever he looked in the rearview mirror, defendant was in the proper lane. He did not see the accident.

According to the investigating officer, 84th and Burley was a predominantly residential area. Although not posted, the speed limit was 30 miles per hour. Motorcycle fragments were found on the west side of the street. The first spot of blood appeared near 8401 Burley about the center of the street. It “stopped” on the west side of the street around 8358 Burley. He did not find any skid marks.

Defendant testified on his own behalf. He was driving between 35-40 miles per hour in the right-hand lane of Burley. Suddenly, a bicycle darted out from two parked cars. The right side of his motorcycle hit the front of the bicycle. A photograph identified as People’s exhibit No. 15A revealed that the front wheel of the victim’s bicycle was deformed. Defendant identified a series of photographs showing damage to the right side of his motorcycle. He went to a “disco” that evening. The next morning, however, he voluntarily turned himself in to the police. In rebuttal, Richard Sobieraj stated that no cars were parked on Burley Avenue between the house and the corner of the block.

I

Defendant contends that the evidence failed to prove him guilty of reckless homicide beyond a reasonable doubt. He argues that the testimony of Cindy and Richard Sobieraj was biased because of their relationship to the victim. He asserts that the State’s evidence was replete with conflicts in the testimony on vital questions of fact, particularly on the question of whether defendant was driving in the proper lane at the time of the accident. These contentions must be rejected. The circuit court properly could have found from the State’s evidence that defendant failed to apply the brakes and that at the moment of impact was moving well in excess of the 30 miles per hour speed limit in the left-hand lane of a residential street where 10 to 12 children were playing. To reach this finding, the circuit court did not have to rely on the eyewitness testimony of Anna Carrillo which was impeached by her prior inconsistent statements to the investigating police. The testimony of Cindy and Richard Sobieraj by itself, if believed, demonstrated that defendant was in the wrong lane at the time of impact. In the exercise of its discretion as fact-finder, the circuit court did not have to believe the contrary testimony of defendant, Bustos, and Torres, particularly since the latter two did not view the collision. The evidence was not so unsatisfactory or improbable as to raise a reasonable doubt of defendant’s guilt. People v. Ellis (1978), 74 Ill. 2d 489, 496, 384 N.E.2d 331.

II

Defendant assigns error to the order denying his post-trial motion in arrest of judgment, maintaining that the indictment is insufficient. The indictment charges that:

“[H]e [defendant] *** unintentionally and without lawful justification, while driving a motor vehicle, to wit: a motorcycle, recklessly performed acts in such a manner as were likely to cause death or great bodily harm to some individual and such acts caused the death of Steven Sobieraj, in violation of Chapter 38, Section 9—3(a), of the Illinois Revised Statutes 1979 * * * Jf

To withstand a motion in arrest of judgment, the indictment must comport with the requirements of section 111—3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 111—3(a)). (People v. Simmons (1982), 93 Ill. 2d 94, 99, 442 N.E.2d 891; People v. Lutz (1978), 73 Ill. 2d 204, 209-11, 383 N.E.2d 171.) Section 111-3 requires, among other things, that the charge set forth the nature and elements of the offenses charged. The elements of a reckless homicide are as follows (Ill. Rev. Stat. 1981, ch. 38, par. 9—3(a)):

“A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly, except in cases in which the cause of the death consists of the driving of a motor vehicle, in which case the person commits reckless homicide.”

Defendant argues that since the indictment alleges that the acts which caused the victim’s death were done “unintentionally,” it does not charge all of the essential elements of the crime of reckless homicide. He observes that the word “unintentionally” in the statute refers to the killing of an individual and not to the manner in which the alleged acts were performed. An act, he urges, cannot be both unintentional and reckless, since the latter term is defined to mean a conscious disregard of a substantial risk. Ill. Rev. Stat. 1981, ch. 38, par. 4—6.

Whether the requirements of section 111—3 have been met must be judged in light of the purpose of the charging instrument. (People v. Bissaillon (1977), 55 Ill. App. 3d 893, 894, 371 N.E.2d 362.) The function of a charging instrument is first to advise the accused of the nature of the accusation so he is able to fully prepare his defense, and second, to serve as a bar to a second prosecution for the same offense. (People v. Simon (1980), 91 Ill. App. 3d 667, 669, 416 N.E.2d 285.) Whether a charge is valid must be measured by the substance of the charge, and not the technicalities of its language. (People v. Powell (1978), 72 Ill. 2d 50, 64, 377 N.E.2d 803.) Where a statute is cited in the indictment, the statute and the charge must be construed together. (People v. Phelan (1981), 99 Ill. App. 3d 925, 930, 426 N.E.2d 925.) A charging instrument which contains a formal defect is not void. (People v. Hert (1981), 95 Ill. App. 3d 871, 873, 420 N.E.2d 813; People v. Williams (1980), 80 Ill. App. 3d 963, 967-69, 400 N.E.2d 532; cf. People v. Smith (1983), 112 Ill. App. 3d 1033, 446 N.E.2d 260.) In Hert, the omission of the words “not being a peace officer acting in the line of duty” from a home invasion charge did not render the indictment invalid. The court in Williams found a murder information sufficient which omitted the words “without lawful justification.”

One word in the present indictment, “unintentionally,” was misplaced. When read as a whole and in light of its purpose, the indictment adequately advised defendant of the nature and elements of the reckless homicide offense. In this context, the misplacement of “unintentionally” was merely a technical defect which did not void the indictment.

Ill

Prior to trial, in a written motion, the State alleged that there “exist[ed] a related civil matter arising out of the same occurrence.” In preparing for the civil litigation, defendant allegedly deposed persons who were listed as potential State witnesses and issued subpoenas for others. The State moved, in effect, for a protective order barring use of these depositions at defendant’s criminal trial. The circuit court orally granted the motion, finding that employment of the depositions would place the prosecution “at a disadvantage.” It observed that under the applicable criminal Supreme Court Rules, the depositions would have been unavailable to the defense here.

Defendant argues that the circuit court was without authority to enter this order. The State disagrees, contending that Supreme Court Rule 415(d) (87 Ill. 2d R. 415(d)) allowed the court to grant the order on a showing of cause. No Illinois authority is cited or found relating to this issue. Rule 415(d) provides:

“Upon a showing of cause, the court may at any time order that specified disclosures be restricted or deferred, or make such other order as is appropriate provided that all material and information to which a party is entitled must be disclosed in time to permit counsel to make beneficial use thereof.” 87 Ill. 2d R. 415(d).

This rule is designed to regulate the discovery or disclosure process in criminal cases (see Ill. Ann. Stat., ch. 110A, par. 415, Historical & Practice Notes, at 709 (Smith-Hurd 1976)), rather than whether information already recorded through the deposition process in a related civil controversy may be employed by a defendant for his own benefit at criminal trial. Ordinarily, motions for protective orders under similar circumstances would be made by a defendant who fears that disclosure in the civil case may develop evidence that will prove harmful to his criminal defense or will aid in the State’s prosecution. (See D’Ippolito v. American Oil Co. (S.D.N.Y. 1967), 272 F. Supp. 310.) In the case sub judice, however, it is defendant who wished to use the material, and the testimony he sought to use was contained in depositions already taken. Because defendant failed to protect the record in regard to this issue, however, as shown by the following discussion, the circuit court’s ruling under Rule 415(d) need not be reached on review.

Defendant made no offer of proof as to either the substance of the civil depositions or the persons actually deposed (People v. Limas (1977), 45 Ill. App. 3d 643, 649, 359 N.E.2d 1194) and failed to include them in the appellate record. We cannot speculate as to the content of the depositions or to the alleged prejudicial effect stemming from the order forbidding their use. (People v. Nowak (1979), 76 Ill. App. 3d 472, 477-78, 395 N.E.2d 28; People v. Slaughter (1977), 55 Ill. App. 3d 973, 371 N.E.2d 666.) Accordingly, this error, if any, does not constitute a basis for reversal.

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

Affirmed.

STAMOS and PERLIN, JJ., concur.

      Carrillo was called by defendant to testify as an adverse witness.


author: JUSTICE LORENZ

text:
    STEEL CITY NATIONAL BANK OF CHICAGO, Plaintiff-Appellant, v. AETNA INSURANCE COMPANY, Defendant-Appellee.
    First District (5th Division)
    No. 82—1878
    Opinion filed June 30, 1983.

      Frederick S. Stein, of Chicago (Paul M. Seeley and Joel L. Chupack, of counsel), for appellant.
    Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (Norman A. Miller, James T. Ferrini, Robert H. Mittelman, and Matthew B. Schiff, of counsel), for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff appeals from an order dismissing its complaint for damages for failure to state a cause of action. The sole issue on appeal is whether section 143.1 of the Illinois Insurance Code (Ill. Rev. Stat. 1981, ch. 73, par. 755.1, effective January 1, 1982), applies retroactively to a claim previously barred by the insurance policy limitations.

Pertinent to the issue are the following facts.

Plaintiff, as mortgagee, was named as payee under a loss payable clause in a fire insurance policy purchased by Jihad and Youmana Jaouhairi from defendant to provide fire insurance protection for their two-story frame building in Chicago, Illinois. The coverage under the policy was effective from March 4,1980, through March 4, 1981.

The insured property was destroyed by fire on June 11, 1980, and plaintiff filed a proof of loss claim with defendant on August 22, 1980. Defendant rejected the claim on February 21, 1981, and on August 21, 1981, plaintiff filed its two-count complaint against defendant alleging that defendant had wrongfully refused to pay the damages resulting from the fire.

Defendant’s motion to dismiss was based upon a provision in the policy which provided that “[n]o suit or action on this policy for the recovery of any claim [will be allowed] unless all the requirements of this policy shall have been complied with and unless commenced within twelve months next after inception of the loss.”

In response, plaintiff argued that section 143.1 of the Illinois Insurance Code (Ill. Rev. Stat. 1981, ch. 73, par. 755.1, effective January 1, 1982) applied retroactively to toll the running of the one-year suit limitation provision. That statute provides in pertinent part: “Whenever any policy or contract for insurance, except life, accident and health, fidelity and surety and ocean marine policies, contains a provision limiting the period within which the insured may bring suit, the running of such period is tolled from the date the proof of loss is filed, in whatever form is required by the policy, until the date the claim is denied in whole or in part.”

Following a hearing on the motion, the trial court granted defendant’s motion to dismiss the complaint and plaintiff appeals.

Opinion

The sole issue on review is whether section 143.1 of the Illinois Insurance Code (Ill. Rev. Stat. 1981, ch. 73, par. 755.1) should be applied retroactively to revive a claim previously barred by the suit limitation provision of the insurance policy.

Although both parties concede that the plaintiff’s institution of suit on August 21, 1981, was barred by the provisions of the policy in effect at the time of suit, plaintiff first argues that defendant, as insurer, should not be allowed to reduce an insured’s time in which to investigate the facts regarding a possible lawsuit by consuming a long period of time in its investigation of the claim.

In the present case, the suit limitation provision in the plaintiff’s fire insurance policy limited the time during which actions might be brought to one year from the date of the loss. While we note that defendant’s investigation of the claim consumed approximately six months, or one-half of the time allowed, nonetheless it is clear that such a contractual limitation requiring suit to be brought within a specific period of time is valid if reasonable even though the period provided by a general statute of limitations as to suits on written contracts is longer. (Florsheim v. Travelers Indemnity Co. (1979), 75 Ill. App. 3d 298.) As the supreme court stated in Stofer v. Motor Vehicle Casualty Co. (1977), 68 Ill. 2d 361, 369, 369 N.E.2d 875, “[a suit limitation clause] is but another provision of the standard policy, one of many that may effectively bar relief to the insured.”

Moreover, even where the insurer’s delay in denying liability operates to hasten the expiration of the policy period for filing purposes, if the plaintiff has a reasonable time within which to institute suit he cannot raise estoppel as an excuse for not filing his action within the limitation period. Salloum Foods & Liquor, Inc. v. Parliament Insurance Corp. (1979), 69 Ill. App. 3d 422, 388 N.E.2d 23.

Where, as here, plaintiff had almost four months within which to file a claim, we necessarily find that the action brought after the expiration of the one-year period is effectively barred.

Plaintiff, however, contends that section 143.1 (Ill. Rev. Stat. 1981, ch. 73, par. 755.1), which was enacted on September 1, 1981, and became effective on January 1, 1982, operates retroactively to toll the limitation period during the insurer’s investigation of the claim.

Citing as authority for its position Orlicki v. McCarthy (1954), 4 Ill. 2d 342, plaintiff urges us that the enactment of the statute was merely procedural in nature, and, as such, should be applied retroactively, regardless of whether the action accrued before or after the effective date of the enactment.

In Orlicki, an amendment to the Liquor Control Act (Ill. Rev. Stat. 1949, ch. 43, par. 135) reduced the time for bringing suit from two years to one year, barring a wrongful death action which had been brought within the longer period in effect at the time of the plaintiff’s injury but not within the shortened period in effect at the time suit was instituted. The court based its decision to apply the statute retroactively upon the wording of the amendment and the general rule that the time limitation was a procedural matter that should be governed by the law in force at the time of suit.

However, Orlicki and the cases relied upon therein all involved statutory amendments which decreased the time within which suit could be filed and are consequently distinguishable from an amendment which, as here, operates to increase the period of time limitation. (Siltman v. City of Jacksonville (1977), 44 Ill. App. 3d 874.) Hence, we find Orlicki to be inapposite to the case at bar.

In addition, we are not persuaded.by plaintiff’s argument that the legislature must have intended a retroactive application of section 143.1 of the Illinois Insurance Code because it did not add a savings clause to the statute. Even assuming, arguendo, that the legislature can, in certain cases, constitutionally revive previously barred contractually created remedies, such revival should not result unless the legislature expressly indicates that intention. Arnold Engineering, Inc. v. Industrial Com. (1978), 72 Ill. 2d 161.

Since we find nothing in the language of the statute to indicate an express legislative intent to revive a claim which had been previously barred, we hold that section 143.1 of the Illinois Insurance Code is intended to apply only to those claims which have not been barred by any contractual suit limitation provision as of the effective date of the statute. In our opinion, an opposite construction would be subject to constitutional infirmity. Accordingly, we reject a retroactive construction of the statute.

In light of the foregoing, we find that the trial court properly dismissed plaintiff’s complaint for failure to state a cause of action.

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

Affirmed.

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


author: JUSTICE SULLIVAN

text:
      In re ESTATE OF MIRIAM FUERSTENBERG—(The People of the State of Illinois, Plaintiff-Appellee, v. Ronald A. Landsman, Ex’r of the Estate of Miriam Fuerstenberg, Defendant-Appellant).
    First District (5th Division)
    No. 82—1915
    Opinion filed June 24, 1983.

      Edward J. Egan, Ltd., of Chicago, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Edward C. Hurley, Assistant Attorney General, of counsel),, for the People.
   JUSTICE SULLIVAN

delivered the opinion of the court:

This appeal is from a judgment of the trial court overruling the executor’s objections to the amount of Illinois inheritance tax assessed by the State and affirming assessment thereof. The sole issue on appeal is the propriety of that assessment.

On July 31, 1980, the last will of Miriam Fuerstenberg (decedent) was admitted to probate. It contained, in relevant part, $20,000 bequests to a sister and each of 20 descendants of other brothers and sisters, who were also the decedent’s heirs at law, and a residuary clause directing that the balance of the estate be distributed in equal shares to her niece Hannah Gordon, her accountant Ronald A. Landsman, and her attorney -Edward L. S. Arkema. Two separate actions were filed challenging that will. Gordon sought to set aside the residuary bequests to Landsman and Arkema, alleging undue influence, and several of the heirs named in the will asked that the entire will be set aside on the ground that the decedent lacked testamentary capacity.

The parties to these actions reached a settlement agreement which is reflected in an order of the trial court entered May 26, 1981. Four pending actions were dismissed with prejudice, $50,000 of the residue was to be distributed among the complaining heirs in addition to the bequests contained in the will, and the residuary estate was redistributed in the following manner: 60% to Gordon, 221/2% to Landsman, and 171/2% to Arkema. The executor then filed an Illinois inheritance tax return in which the tax owed was calculated as $240,763.60, based on the terms of the foregoing order. The Attorney General, however, ¿ssessed $297,785.52 in taxes, calculated according to the distribution of assets under the will. The executor’s objections to the assessment were overruled, and his appeal brought pursuant to section 11 of the Inheritance and Transfer Tax Law (Ill. Rev. Stat. 1981, ch. 120, par. 385), originally filed as a post-trial motion, was denied. This appeal followed.

Opinion

The executor, although critical thereof, does not challenge here the long established principle that inheritance tax is assessed in accordance with the terms of the will rather than the terms of any subsequent settlement agreement. (See, e.g., In re Estate of Graves (1909), 242 Ill. 212, 89 N.E. 978; In re Estate of Monroe (1982), 105 Ill. App. 3d 1114, 435 N.E.2d 709.) Instead, he argues that the cases so holding are inapposite because the will contests leading to the settlements therein were brought by parties not mentioned in the will; whereas here, the contest was initiated by named beneficiaries. He asserts that the controlling case here is People v. Flanagin (1928), 331 Ill. 203, 162 N.E. 848, wherein the supreme court held that upon renunciation of an interest under a will, the inheritance tax is to be assessed in accordance with the interests established by the will as they stand after renunciation.

It is apparently the executor’s position that what occurred here was not a settlement agreement but a partial renunciation of the residuary bequest by Landsman and Arkema. The redistribution here cannot be both, for. a settlement agreement and a renunciation are mutually exclusive. The rationale for taxing without regard to the provisions of a settlement agreement is that the tax accrues when the property vests; that is, on the death of the decedent, and subsequent transfers of that property cannot affect the tax. (In re Estate of Monroe.) In contrast, a renunciation is not considered a transfer; rather, the devise or bequest simply fails to vest because there is no transferee, and the estate remains as if the gift provision had never been executed. (People v. Flanagin.) This distinction is the sole reason for the different tax treatment accorded settlement agreements and renunciations, and leads us to conclude that the redistribution here cannot be both. Our view that they are mutually exclusive is further supported by section 2—7(f) of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. 110½, par. 2—7(f)), which provides that when a beneficiary transfers an interest, he is barred from renouncing it.

The State contends that the above theory was not raised in the court below and therefore should not be considered on appeal. The executor maintains that the issue before the trial court was the propriety of the tax assessment and that, “liberally construed,” his pleadings raised the issue of renunciation. However, we have searched the record in vain for some mention of this argument. What we find instead is that the executor argued before the trial court that Graves and the cases following it are inapplicable because no will contests were actually filed therein, only threatened; whereas here, there was actual litigation pending. Therefore, he asserted, the redistribution was imposed by judgment rather than by agreement, and the tax should be based on the beneficial interests actually received under that judgment. The executor has abandoned that argument here and insists instead that the judgment reflects a renunciation rather than an agreement. This is clearly a different argument, and as we have repeatedly cautioned appellants, the executor here may not present one theory before the trial court then seek review based on a new question not argued below. (See, e.g., Marynczak v. D & L Transport Co. (1981), 94 Ill. App. 3d 381, 418 N.E .2d 972; Frisch Contracting Service Corp. v. Northern Illinois Gas Co. (1981), 93 Ill. App. 3d 799, 417 N.E.2d 1070.) New theories presented for the first time on review will not be considered.

Furthermore, even assuming arguendo that this argument is properly before us, we believe that the executor’s position is without merit. The executor does not cite, nor has our own research discovered, any basis for the distinction which he asserts makes Graves inapplicable here. The cases make clear that “[n]o changes of title, transfers or agreements of those who succeed to an estate, either among themselves or with strangers, can affect the [inheritance] tax, and all questions concerning the tax must be determined as of the date of [the decedent’s death].” (Emphasis added.) (People v. Upson (1930), 338 Ill. 145, 151, 170 N.E. 276, 279.) It is immaterial, then, whether the contest is initiated by a beneficiary under the will or one who is a stranger thereto. For example, in People v. Union Trust Co. (1912), 255 Ill. 168, 99 N.E. 377, appeal dismissed (1914), 234 U.S. 748, 58 L. Ed. 1575, 34 S. Ct. 673, a will contest was initiated by a beneficiary under the will, as in the instant case. A settlement agreement was reached, and the court held that the amount of inheritance tax was to be calculated according to the interests 6 reflected in the will, noting that “[i]f, in order to avoid litigation, the legatees, contestants and others in interest under a will compromise their claims, the concessions made, while binding upon the parties, take effect under the agreement, and are not a modification of the will or the rights under it.” (255 Ill. 168, 182, 99 N.E. 377, 383.) Similarly, here, the redistributions established in the agreement took effect thereunder and did not serve to modify the will.

It is also our view that the redistribution of assets here was not the result of a partial renunciation. Initially, we note that the parties did not comply with the statutorily required form of renunciation. (Ill. Rev. Stat. 1981, ch. 110½, par. 2—7.) In addition, if this were a renunciation, the interest renounced would pass to others in accordance with the will or by intestate succession, but not by direction of the renouncing party. (See Ill. Rev. Stat. 1981, ch. 110½, par. 2—7(e); People v. Flanagin.) Here, $50,000 of the residuary estate is to be distributed to four of the heirs who challenged the will, a provision which is neither contained in the will nor mandated by the laws of intestate succession. Therefore, it could only be accomplished by transfer from Landsman and Arkema, which is, as noted above, inconsistent with a renunciation. Because the interests in question must be transferred, the judgment order reflects a settlement agreement rather than a renunciation.

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

Affirmed.

WILSON, P.J., and LORENZ, J., concur.

      Gordon had filed two additional actions challenging a 1975 trust agreement" executed by the decedent. These actions were also dismissed pursuant to the agreement of the parties.

      Under the terms of the will, a larger share of the estate is inherited by Landsman and Arkema, who are unrelated to the decedent, resulting in lower exemptions and a higher rate of taxation than if the taxes were based on the interests reflected in the settlement agreement.

      Such a challenge would be fruitless since we are bound by the decisions of the supreme court. Vinke v. Artim Transportation System, Inc. (1980), 87 Ill. App. 3d 400, 408 N.E.2d 1112.


author: JUSTICE GOLDBERG

text:
    JON R. LA BREE, Plaintiff-Appellant, v. SCHRIEBER COMPANY, Defendant-Appellee.
    First District (1st Division)
    No. 81—3193
    Opinion filed June 13, 1983.
    Rehearing denied July 25, 1983.

      Ronald J. Lucaccioni, of Chicago (Joel S. Ostrow, of counsel), for appellant.
    Johnson, Cusack & Bell, Ltd., of Chicago (Raymond R. Cusack and Thomas H. Fegan, of counsel), for appellee.
   JUSTICE GOLDBERG

delivered the opinion of the court:

Jon R. La Bree (plaintiff) brought this action for strict product liability against Schrieber Company (defendant) for injuries sustained by plaintiff while working with a product manufactured by defendant. After trial the jury returned a general verdict for defendant and against the plaintiff. The jury also answered a special interrogatory finding “plaintiff guilty of assumption of risk.” The jury left blank a special interrogatory requesting an answer as to the percentage of total fault to be ascribed to each plaintiff and defendant. Plaintiff has appealed.

Under the view we take of this case, we need not address all the issues presented for review, or provide a detailed statement of the evidence. According to plaintiff’s amended complaint, defendant manufactured a certain “continuous collating machine” which plaintiff used in the course of his employment. Plaintiff alleged the product was unreasonably dangerous in that it had inadequate safety guards. As a proximate cause of that allegedly dangerous condition, plaintiff claims to have suffered severe injuries to his arm and hand.

Defendant made a motion in limine to apply the theory of comparative negligence. (Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886.) The trial court granted defendant’s motion. In announcing his ruling, with reference to the issue of assumption of risk, the trial judge stated:

“This Court will therefore hold that to the extent that the defendant is able to plead and prove assumption of risk, he will be allowed to do that and instead of it being stylized as assumption of risk and totally barring the plaintiff’s recovery, it will be called a form of comparative fault which will mitigate the damages.”

The trial court gave the jury this instruction on assumption of risk:

“The defendant has asserted the affirmative defense that the plaintiff assumed the risk of injury. To establish that defense, the defendant has the burden of proving each of the following propositions:
First, that the plaintiff knew of the condition which the plaintiff claims made the collator unreasonably dangerous;
Second, that the plaintiff understood and appreciated the risk of injury from that condition and continued to use the collator.
Third, that the known condition was a proximate cause of plaintiff’s injuries.
If you find from your consideration of all the evidence that each of the propositions required of the defendant has been proved, then your answer on the special verdict as to assumption of risk should be ‘yes.’
If, on the other hand, you find from your consideration of all the evidence that any one of the propositions required of the defendant has not been proved, then your answer on the special verdict as to assumption of risk should be ‘no.’ ”

The trial court also tendered two special interrogatories to the jury. One interrogatory asked “Was the plaintiff guilty of assumption of risk?” to which the jury answered “yes.” The second interrogatory involved the allocation of percentage of fault:

“Assuming that 100% represents the combined fault of the plaintiff and of the defendant that contributed as a proximate cause to plaintiff’s injury, what proportion of such combined fault is attributable to the plaintiff on the one hand and what proportion is attributable to the defendant on the other hand?
Answer: To plaintiff_%
To defendant_%”

The jury did not answer this special interrogatory regarding the allocation of percentages of fault.

The general verdict and the answered special interrogatory on assumption of risk read as follows:

“WE, THE JURY, FIND FOR THE DEFENDANT AND AGAINST THE PLAINTIFF.
WE, THE JURY IN THIS CASE FIND THE FOLLOWING SPECIAL VERDICT ON THE ISSUE OF ASSUMPTION OF RISK:
WAS THE PLAINTIFF GUILTY OF ASSUMPTION OF RISK? ANSWER (YES).”

The recent supreme court decision in Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 118, 454 N.E.2d 197, holds specifically that “the defense of comparative fault is applicable to strict liability cases.” Accordingly the trial court was correct in granting defendant’s motion to apply the theory of comparative negligence. But the Coney court also held specifically:

“However, the defenses of misuse and assumption of the risk will no longer bar recovery. Instead, such misconduct will be compared in the apportionment of damages. Specifically, we hold: Once defendant’s liabilities is established, and where both the defective product and plaintiff’s misconduct contribute to cause the damages, the comparative fault principle will operate to reduce plaintiff’s recovery by that amount which the trier of fact finds him at fault.” 97 Ill. 2d 104,119.

Thus in the instant case the verdicts show that the basis of non-liability was plaintiff’s assumption of risk. The jury did not complete the test by applying the principles of comparative fault to the case. Coney teaches us that comparative fault is applicable to strict liability cases and the application of that doctrine is incompatible with assumption of risk as a complete bar to plaintiff’s recovery. Therefore, the final verdict was not only contrary to the specific ruling of the trial court when he granted defendant’s motion to apply comparative negligence, but also the verdicts as rendered are contrary to the law as enunciated by Coney. It is thus apparent that the jury failed completely to grasp the matter before it and failed to perform its function as the trier of fact.

Defendant argues plaintiff has filed an incomplete record, and therefore the judgment must be affirmed. We acknowledge that the record filed by plaintiff is incomplete. (See Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 350-51, 415 N.E.2d 337.) Likewise we note that plaintiff’s post-trial motion is lacking in specificity. Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 350-51.

Nevertheless, such deficiencies in the record do not affect that power of this court to adjudicate a particular issue in the interest of complete justice. (Wozniak v. Segal (1974), 56 Ill. 2d 457, 461, 308 N.E.2d 611.) “ ‘[T]he responsibility of a reviewing court for a just result and the maintenance of a sound and uniform body of precedent may sometimes override the considerations of waiver that stem from the adversary character of our system.’ ” Wozniak v. Segal (1974), 56 Ill. 2d 457, 461, quoting Hux v. Rohm (1967), 38 Ill. 2d 223, 225, 230 N.E.2d 831.

We are also keenly aware of the difficult task which able counsel and the trial court had in attempting to apply newly articulated rules of law particularly without the invaluable guidance of the Coney opinion. However we find it impossible to reconcile the jury’s action and its failure to complete the tendered verdicts with the applicable legal principles. (See Moricoli v. P & S Management Co. (1982), 104 Ill. App. 3d 234, 238, 432 N.E.2d 903, appeal denied (1982), 91 Ill. 2d 560.) The judgment for defendant is accordingly reversed and the cause is remanded for a new trial.

Reversed and remanded.

McGLOON and CAMPBELL, JJ., concur.


text:
    GERARD TORLEY et al., Plaintiffs-Appellees, v. FOSTER G. McGAW HOSPITAL et al., Defendants-Appellants.
    First District (2nd Division)
    No. 82—2585
    Opinion filed June 21, 1983.
    Rehearing denied August 2, 1983.

      Cassiday, Schade & Gloor, of Chicago (Joseph A. Camarra, Richard A. Barrett, Jr., and Kevin G. Burke, of counsel), for appellants.
    Henry J. Sullivan, Satwant Samra, and Lawrence T. Stanner, all of Chicago, for appellees.
   JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiffs, Gerard and Pat Torley, filed a medical malpractice complaint in which Foster G. McGaw Hospital (McGaw) was named as a party defendant and certain physicians, nurses and technicians were designated respondents in discovery (respondents) pursuant to section 21.1 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 21.1), now section 2—402 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2—402). Plaintiffs subsequently attempted to make two such respondent physicians parties defendant in amended pleadings. Thereafter, the circuit court denied their respective motions to dismiss and certified a number of questions concerning section 21.1 and its application in the instant case for immediate consideration by this court pursuant to Supreme Court Rule 308 (87 Ill. 2d R. 308). We granted leave to appeal.

The issues presented for review include whether: (1) plaintiffs were required under section 21.1 to serve respondent physicians, who were made defendants, with summons while they were respondents in discovery or whether other facts may be considered with regard to said service; (2) plaintiffs were required to initiate discovery as to respondent physicians during the statutory six-month period while they were respondents in discovery and prior to their being made defendants in this action; (3) plaintiffs have filed suit against respondent physicians within the appropriate statute of limitations; and (4) section 21.1 is unconstitutional. We reverse and remand on other grounds.

Plaintiffs filed their initial two-count complaint on February 13, 1980, the second count of which was for Pat’s loss of society and consortium. Count I alleged that in the course of performing coronary bypass surgery on Gerard, “defendant [McGraw] and others” negligently injured the left median nerve in his left arm and later negligently failed to ascertain that they had and so failed to minimize the damage done to the nerve. In that complaint, plaintiffs designated Dr. Henry J. Sullivan and Dr. Satwant Samra, among others, as respondents in discovery. Six months later, July 11, 1980, plaintiffs filed an amended complaint in which they named as defendants Drs. Sullivan, Samra and others previously designated as respondents. The record contains no notice of motion nor any motion demonstrating plaintiffs’ application to the circuit court for leave to file such an amended complaint, nor does the record contain any order of court authorizing them to do so.

On May 12, 1981, plaintiffs amended their amended complaint alleging that Sullivan had told plaintiffs that the condition of Gerard’s hand and arm was nothing to be concerned about, and they would get better on their own accord in one to six months. They also alleged that they first began to suspect that the condition of Gerard’s hand and arm was the result of someone’s negligence in June 1978 after therapy and the administration of a nerve block and carpal tunnel failed to improve the condition of his hand and arm. The record is devoid of any notice, motion or order seeking leave to file or authorizing the filing of this amendment.

Upon filing their appearances, Drs. Sullivan and Samra moved to dismiss the amended complaint for plaintiffs’ failure to file their cause of action against them “*** within two years of the date on which the claimant knew, or through the use of reasonable diligence should have known of the existence of the injury for which damages are sought,” because treatment was alleged to have been accorded Gerard between February 10 and 27, 1978, particularly surgery on February 13, 1978, yet no action was filed against them until July 11, 1980. Further, defendants sought dismissal upon the ground that section 21.1 was unconstitutional. Defendants filed a memorandum in support of their motion.

Plaintiffs filed a memorandum in opposition to the motion in which plaintiffs’ counsel swore to the following facts: After filing the original complaint, he promptly directed the sheriff’s office to serve all persons named in the complaint. Two months later, his only associate left him. In May 1980, counsel was stricken with a major heart attack and was scheduled to undergo open heart , surgery on August 15, 1980. During the intervening months, his doctor told him that it was “critical” that he not give any thought to his practice. In July, however, counsel discussed some business matters with a lawyer with whom he shared office space and asked him to amend plaintiffs’ complaint to name as parties defendants those persons whom he had previously designated as respondents in discovery and have a copy of the amended complaint served upon them. Dr. Sullivan received a copy of the summons shortly thereafter, but Dr. Samra’s was returned “not found.” Counsel learned of this fact in September when he returned to work. He later learned that Dr. Samra was living in Michigan. He filed another summons which Dr. Samra received early in October. In recounting the procedures followed, no mention is made in this memorandum of plaintiffs having first sought and received leave of court to file the amended complaint.

The circuit court denied the motion to dismiss, from which this appeal proceeds.

Section 21.1 is a procedure which a plaintiff may elect or decline to utilize, at his option. It is intended to avoid actually naming individuals as defendants in malpractice actions by permitting a plaintiff to conduct discovery concerning his claim before he must decide upon who or who not to sue. When a plaintiff adopts that procedure and names a person as a respondent in discovery, he must then follow the pertinent provisions of the statute. Among those provisions is the following:

“Persons so named as respondents in discovery shall be required to respond to discovery by the plaintiff in the same manner as are defendants and may, on motion of the plaintiff, be added as defendants if the evidence discloses the existence of probable cause for such action. ” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 110, par. 21.1.)

The record in the instant case contains no motion filed by plaintiffs seeking to add as defendants Drs. Sullivan and Samra as the above statutory provision requires, nor is there any order of court authorizing them to do so. On oral argument, this court sua sponte raised this issue and counsel was unable to answer it satisfactorily. In trial counsel’s affidavit of facts filed in opposition to defendants’ motion to dismiss, the procedures said to have been followed in this case omit any mention of such motion or order for leave to amend.

The right to file an amended complaint naming as additional parties defendant those persons previously named respondents in discovery is little different from the right to add additional parties under former section 26 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 26), now section 2—407 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2—407). In section 2—407, the language requiring court authority for leave to amend is somewhat different from that contained in section 21.1, but the principle is the same. There, the requirement set forth is that “new parties may be added *** by order of the court, at any stage of the cause, before or after judgment, as the ends of justice may require and on terms which the court may fix.” Under section 21.1, the only authority plaintiff is given to add respondents in discovery as defendants is on motion. As in other cases, it is the court which may allow or deny leave to do so. The further requirement for adding such defendants is that the evidence disclose the existence of probable cause for such action. Although defendants assert that the “evidence” to which the statute refers means that which has been adduced by means of discovery during the six-month statutory period, we see no reason to engraft such a requirement on this procedure where the legislature itself has not done so. It would be equally absurd to construe this provision as permitting plaintiff to make the unilateral judgment that such probable cause does indeed exist without court authorization. The statute must reasonably be read as requiring the court to which the motion is addressed to make such a finding on whatever evidence may be presented and to grant or deny leave to add respondents in discovery as parties defendant.

In Petrella v. Leisky (1981), 92 Ill. App. 3d 880, 881-82, 417 N.E.2d 134, we considered whether a complaint could be amended ex parte by a plaintiff without leave of court first sought and received, and we held:

“The controlling question is whether plaintiff may be permitted to amend his complaint and add a new claim against a new party without leave of court. The answer, as found in Illinois case law, is that he may not. (See Reinhardt v. Security Insurance Co. (1936), 287 Ill. App. 320, 322, 4 N.E.2d 883 (failure to obtain leave to amend complaint is grounds for striking the amendment); Hallmark Personnel, Inc. v. Pickens-Kane Moving & Storage Co. (1980), 82 Ill. App. 3d 18, 22, 401 N.E.2d 1049; see also George F. Mueller & Sons, at 880 (parties added without leave of court; service of process and judgment held void); Glickauf v. Moss (1974), 23 Ill. App. 3d 679, 681, 320 N.E.2d 132 (record did not reflect that leave to add defendant was granted, therefore court had no jurisdiction over that person).) The necessity of leave of court is also implicit in cases holding that plaintiff’s right to amend his complaint is not absolute, and that, while permission is to be liberally allowed, the trial court has discretion to deny leave to amend a complaint. See, e.g., Beresky v. Teschner (1978), 64 Ill. App. 3d 848, 856, 381 N.E.2d 979.”

We see no reason to depart in the instant case from the rules set forth above.

Plaintiffs’ failure to secure leave of court to add Drs. Sullivan and Samra as defendants in compliance with section 21.1 deprives the circuit court of jurisdiction over them and denies to plaintiffs the right to proceed against them as defendants since the time within which they could properly have done so has elapsed. Accordingly, we need not address the other issues raised in the appeal.

For the foregoing reasons, we reverse the judgment of the circuit court and remand with directions to grant Drs. Sullivan’s and Samra’s motions to dismiss.

Reversed and remanded.

DOWNING, P.J., and STAMOS, J., concur.