author: JUSTICE GOLDBERG

text:
    MAGDALENE KOSCH et al., Plaintiffs-Appellees, v. DONALD MONROE, Defendant-Appellant.—(EDITH A. MOFFET, Defendant.)
    First District (1st Division)
    No. 81-828
    Opinion filed March 15, 1982.
    Rehearing denied April 19, 1982.

      Hubbard, Hubbard, O’Brien & Hall, of Chicago (Frederick W. Temple and John Skapars, of counsel), for appellant.

      Keith L. Davidson, of Louis G. Davidson & Associates, Ltd., of Chicago (Sidney Z. Karasik and Catherine L. Grahn, of counsel), for appellees.
   JUSTICE GOLDBERG

delivered the opinion of the court:

The physical facts in the automobile collision here involved are:

Dempster Street runs east and west. It has two lanes for traffic in each direction. Rand Road runs in a slightly northwesterly and southeasterly direction at its intersection with Dempster. Rand also has two lanes of traffic in each direction. South of the intersection the southbound or western traffic lanes of Rand give access to the toll road. About 200 to 300 yards north of the Dempster intersection Rand Road makes a gradual curve to the northwest. The posted speed limit on Rand is 40 miles per hour.

Edith A. Moffet, a defendant, was driving north on Rand with intention to make a left turn on Dempster to drive west. Donald Monroe, also a defendant, was driving south on Rand Road in his right-hand lane. He was about to continue south on Rand, across Dempster, for toll road access. Traffic lights on Rand were green at the time. As these defendants approached the intersection,- two large dump trucks were proceeding south on Rand in the center or inside lane. These trucks were waiting to make a left turn onto Dempster to proceed east. Magdalene Kosch (plaintiff) was a passenger seated in the right rear of the car driven by defendant Moffet.

The trial court directed a verdict in favor of plaintiff on contributory negligence. The jury returned a verdict of not guilty as to defendant Moffet; and verdicts in favor of plaintiff against Monroe for $250,000 for personal injuries; and in favor of Erich Kosch, plaintiff’s husband, for $50,000 for loss of consortium. Defendant Monroe has appealed. We will first consider the issues regarding liability.

Plaintiff testified she did not pay attention to the route of the Moffet automobile. She did not remember specifically the approach to the intersection or the color of the traffic lights upon approach. She has never driven an automobile. She knew the Moffet car had stopped but could not say for how long. She did notice that the car was making a left turn immediately before the crash. She also noticed a truck on the far side of Rand. She did not see the Monroe car before the crash.

Defendant Moffet testified she approached Dempster in the left-hand or center lane. She put on her left-turn signal. She saw two large dump trucks stopped on Rand waiting to make the turn to their left to proceed east on Dempster. The first truck had a left-turn signal on. These trucks were in the inside southbound lane of Rand.

As Moffet approached the intersection, the trucks obstructed her view and she stopped. She did this to check the traffic and make sure she had a clear area. She remained stopped for one or two seconds. She saw no other traffic proceeding south on Rand. She could see about 200 feet of Rand Road to the north and she was satisfied she could then start and make the turn safely. She did not recall if she looked again for southbound cars on Rand. She did not see the Monroe car at any time until the collision. The cars came together as Moffet had crossed the inner southbound lane of Rand Road and was more than halfway into the outer southbound lane. The Monroe car struck her car at the rear door. She could not recall if she heard tires or brakes squeal before the crash. Her car was a total loss.

Defendant Monroe testified he had traveled this intersection a great many times. Both Rand and Dempster were busy streets. As he rounded the Rand curve proceeding south, he was in the right-hand or outside lane. He saw a green traffic light for traffic on Rand. He estimated his speed as 35 miles per hour. As he approached he saw the two large dump trucks apparently waiting to make left turns to go east on Dempster. The leading truck, partly into the intersection, was somewhat obstructed from his sight by the truck behind it. At that point these trucks obstructed his view so he could not see any other car which might turn left to go west on Dempster.

As Monroe proceeded he encountered a roughness in the road starting some 45 to 50 feet north of the intersection. He was familiar with this condition. He slowed down and reduced his speed perhaps 5 miles an hour. He did not look at the speedometer and was not sure about the speed reduction. Prior to his testimony he did not tell the police or any other person about this speed reduction. He did not swerve. He saw the Moffet car ahead of him in his traffic lane. That was the first time he had seen it. At that time he was just about at the rear of the second dump truck which would put him 40 to 45 feet away from the point of impact. On his deposition he testified he was 30 to 40 feet from the Moffet car when he first saw it. He jammed on the brakes when he saw the car and skidded into the collision. In an opening statement his attorney stated Monroe left approximately 54 feet of skid marks in his attempt to stop before the collision. Monroe did not blow his horn although he had time to do so. He struck the Moffet car about in its center. Damage to his own car was confined to the front with more damage on the right than on the left. His car swung the Moffet car around into the outer eastbound Dempster lane. His car stopped on the inner eastbound Dempster lane.

Plaintiff Kosch and her husband are very good friends of defendant Moffet and have been her neighbors for more than 20 years. No post-trial motion was filed by the plaintiffs against defendant Moffet. On the contrary, plaintiffs and Moffet entered into a written agreement which was disclosed to the trial court. This agreement recited that defendant Moffet was insured under a $100,000 policy. The claim of plaintiffs against Moffet was settled by payment from the insurer to plaintiffs of $25,000. The agreement also provided that if the insurer offered plaintiffs an additional $70,000 prior to jury selection in event of a new trial and plaintiffs refused this offer, plaintiffs would not seek to enforce any judgment they might obtain against defendant Moffet or her insurer in excess of $95,000. On this basis the trial judge entered an order which dismissed the action of plaintiffs against defendant Moffet without prejudice.

I

Defendant Monroe first urges Moffet was guilty of negligence as a matter of law. The verdict found the issues in favor of defendant Moffet. The notice of appeal filed by Monroe states no challenge against this verdict. Monroe filed no counterclaim or third-party action for contribution against Moffet. In fact, as above shown, the trial court has entered an order which dismissed the action of plaintiffs against Moffet without prejudice. Thus, the contentions in Monroe’s brief directed against the alleged negligence of Moffet are virtually meaningless.

It appears to us that the only possible bearing this entire argument could have on the liability of Monroe to the plaintiffs would be the contention that he himself was free from negligence and the negligence of Moffet was the sole proximate cause of the injury to plaintiffs. However, “questions of proximate cause are ordinarily questions of fact for a jury to decide.” French v. City of Springfield (1976), 65 Ill. 2d 74, 79, 357 N.E.2d 438.

Monroe stresses the alleged violation by Moffet of the motor vehicle statute requiring a driver who intends to turn left shall yield the right-of-way to approaching vehicles which are “so close as to constitute an immediate hazard * ° Ill. Rev. Stat. 1979, ch. 951Í, par. 11 — 902.

The authority cited in this regard by Monroe specifically holds that violation of this type of statute is not “negligence per se, inasmuch as it may be rebutted by proof that a person nonetheless acted reasonably under the circumstances [citation].” (Cowan v. Wheeler (1979), 76 Ill. App. 3d 259, 265, 395 N.E.2d 32.) In Cowan, this court considered all of the evidence and concluded that under the circumstances there disclosed the trial court properly directed a verdict against defendant on the issue of his negligence. However, the facts in Cowan are far different from the case at bar. There, defendant admitted he made a left turn and then for the first time saw plaintiffs’ car about 30 feet away. Defendant also testified “he could see at least two or three blocks to the south when he was stopped at the intersection before starting to turn left.” 76 Ill. App. 3d 259, 260.

Defendant Monroe also cites Wanner v. Keenan (1974), 22 Ill. App. 3d 930, 317 N.E.2d 114. However, in Wanner defendant admitted that he had “4 or 5 shots of whiskey and 212-ounce bottles of beer at the tavern” and also that he made a left turn “without stopping to ascertain whether there was a safe interval in which to proceed * 0 *.” 22 Ill. App. 3d 930, 934.

In the case before us defendant Moffet testified clearly she could see some 200 feet ahead. However, the two dump trucks waiting to make the left turn into Dempster obstructed her view particularly because of the slight slant in Rand. Accordingly, Moffet stopped as she approached the intersection even though she did not then see any vehicle approaching from the north.

We are obliged to conclude that the conduct of Moffet was not, as a matter of law, necessarily the sole proximate cause of the injuries here. This will appear more strongly after the following résumé of the testimony of Monroe. Thus, any contention which Monroe is making against the verdict in favor of Moffet must necessarily be rejected.

II

Defendant Monroe urges he was not negligent so that the trial court should have granted his motion for judgment n.o.v. and alternatively the judgments against him are contrary to the manifest weight of the evidence. In our opinion, no amount of argument and citation of cases can avoid the conclusion that the testimony of defendant Monroe was contradictory in a number of aspects.

Monroe testified this intersection was a place where a driver was required to be alert. He saw his traffic light was green when he was 200 to 300 yards from the intersection. He testified regarding his own speed that he was proceeding past the standing dump trucks at about 35 miles per hour. That was his highest speed before the collision. However, as he approached the end of the second truck, he slowed down and reduced his speed “perhaps” 5 miles an hour due to roughness in the road. He conceded that he never looked at the speedometer and therefore was not sure about his speed. In addition, he admitted he did not tell the police or any other person about this speed reduction.

His view of the road was obstructed by the two dump trucks. He testified he saw the turn signal on one of the trucks but not on both. In his deposition he stated both trucks had turn signals on for left turns. At one point he realized his view of the road was obstructed so that he could not see adequately if another vehicle turned left in front of him.

Regarding his distance from the Moffet car when he first saw it, he testified he was some 40 to 45 feet away. At that time the Moffet car was in his traffic lane. On his deposition he testified he was then 30 to 40 feet away. He conceded that he did not attempt to swerve to avoid the collision. In his deposition he said, “I immediately hit my brakes and skidded to the point of impact.” The impact spun the Moffet car around. Also, the car was pushed south so that it stopped in the outer eastbound lane of Dempster. Monroe’s car was stopped in the inner eastbound lane of Dempster.

Counsel for defendant cites various stopping-distance charts as a result of which he concludes that Monroe would be obliged to travel beween 15 to 20 miles an hour to avoid the collision and the law does not require him to do so. In a situation of this type the question of negligence is an issue of fact which it was the duty of the jury to decide. Jardine v. Rubloff (1978), 73 Ill. 2d 31, 43, 382 N.E.2d 232; First National Bank v. City of Aurora (1978), 71 Ill. 2d 1, 12, 373 N.E.2d 1326.

This record presents simply a question of credibility which it was the initial duty of the jury to decide. (Lawson v. G. D. Searle & Co. (1976), 64 Ill. 2d 543, 553, 356 N.E.2d 779.) Neither the trial court nor this court is empowered to set aside the verdict simply because we feel that another conclusion might be more reasonable. Jardine v. Rubloff (1978), 73 Ill. 2d 31, 43.

We conclude the trial court did not err in denying the motion of defendant Monroe for judgment n.o.v. under the principles of Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504. The verdict against Monroe is supported by the manifest weight of the evidence.

Ill

Defendant urges error in Illinois Pattern Jury Instruction, Civil, No. 60.01 (2d ed. 1971) (hereinafter cited as IPI Civil) pertaining to unreasonable speed. (See Ill. Rev. Stat. 1979, ch. 95M, pars. 11 — 601(a), 11 — 902.) The same instruction referred to the section of the statute as regards the making of a left turn by Moffet. Defendant cites no authority for this contention. (See Little Rock Missionary Baptist Church v. Olex (1979), 73 Ill. App. 3d 402, 404, 392 N.E.2d 130.) We find no error in this regard.

Defendant complains against the instruction on the issues (IPI Civil No. 20.01), and the instruction on circumstantial evidence (IPI Civil No. 1.03). We find no error as to either instruction. Generally speaking, any fact or issue can be proved by circumstantial evidence as well as direct evidence. It has been repeatedly held that “positive direct evidence including that of eyewitnesses may be discredited and contradicted by circumstantial evidence.” (Oudshoorn v. Warsaw Trucking Co. (1976), 38 Ill. App. 3d 920, 924, 349 N.E.2d 648, and cases there cited.) The issues instruction properly told the jury that plaintiff claims negligence of Monroe in driving at an unreasonable speed, failing to reduce speed as reasonably necessary and failing to keep a reasonable lookout.

Monroe urges that if a fact is to be established by circumstantial evidence, that evidence must be so strong “ ‘that it is the only conclusion that can be drawn therefrom.’ ” (McKinney v. Illinois Power Co. (1960), 26 Ill. App. 2d 193, 204, 167 N.E.2d 249, quoting from Coffin v. Chicago City Ry. Co. (1929), 251 Ill. App. 169, 175, appeal denied.) But, in Wood v. Mobil Chemical Co. (1977), 50 Ill. App. 3d 465, 472, 365 N.E.2d 1087, appeal denied (1977), 66 Ill. 2d 642, this court expressly stated:

“No authority need be cited for the settled principle that facts may be proven either by direct or circumstantial evidence.”

In Wood, because there was circumstantial evidence before the jury, it was held proper for the court to give IPI Civil No. 1.03 on circumstantial evidence. In fact, it has been held that the charge of excessive speed may be proved by circumstantial evidence. (Penzin v. Stratton (1974), 26 Ill. App. 3d 475, 479-80, 325 N.E.2d 732, appeal denied (1975), 58 Ill. 2d 597.) In our opinion, the above statement of fact demonstrates that there was ample circumstantial evidence of each of the three charges against Monroe above stated so that it was proper for the trial court to submit these matters to the jury and to give the proper instruction on circumstantial evidence.

Monroe also contends that the following non-IPI instruction given to the jury on motion of plaintiff is improper:

“If you find in favor of the plaintiff Magdalene Kosch and that her injury and disability was in any respect increased or aggravated by the nature and extent of the medical care and treatment that she received, that circumstance shall not diminish the extent of the damages you find she is entitled to as compensation for her injuries and disabilities, resulting from the occurrence.”

Monroe urges there was no evidentiary basis for this instruction and the matter was covered by giving IPI Civil No. 12.04 and IPI Civil No. 15.01. There was expert evidence that a fracture of plaintiff’s right clavicle had been overlooked by one of the attending physicians and that this failure of treatment aggravated plaintiff’s condition. In Wood, this court approved a rather similar instruction, also non-IPI, on the theory that there was evidence that the medical treatment aggravated the preexisting injury. Wood v. Mobil Chemical Co. (1977), 50 Ill. App. 3d 465, 475.

As a general matter, referring to all of the instructions, reviewing courts have an understandable reluctance to reverse judgments because of errors in instructions. It must be conceded that it is impossible in any trial to ascertain accurately the effect of any instruction upon the jury. It

has been consistently held (Burgdorff v. International Business Machines Corp. (1979), 74 Ill. App. 3d 158, 165-66, 392 N.E.2d 183, quoting from Duffy v. Cortesi (1954), 2 ill. 2d 511, 515-16, 119 N.E.2d 241):

“ ‘[T]he trend of judicial opinion reveals a reluctance to reverse cases on the ground of technical errors in instructions; hence, courts have reiterated that the instructions will be considered as a whole, and where the jury has not been misled, and the complaining party’s rights have not been prejudiced by minor irregularities, such errors will not be deemed grounds for reversal.’ ”

We find no error in this regard.

IV

Defendant contends the verdicts were influenced by insinuations of insurance coverage and inflammatory arguments. Regarding the insurance issue, counsel for plaintiff asked during voir dire:

“The fact that we have not succeeded in adjusting the claim in some manner between us like some other matters have been mentioned here, I take it that does not start you out feeling that any plaintiff has or any defendant has been treated unfairly.”

Also during voir dire, counsel for plaintiff asked a prospective juror:

“* ° ° I am wondering whether you would consider that your wife’s involvement with Firemen’s Fund as an insurance company that does defend claims could in any way cause you to start out in this case with a notion that any claim is excessive or unwarranted merely because it has been brought to court?”

Finally in closing argument, counsel for plaintiff stated:

“We are asking for the opportunity to prove our case to you and I can tell you that Mr. Monroe, wherever he is, and Mrs. Moffet, will feel no pain if you render a just verdict in this case.”

We do not consider these statements of sufficient magnitude to require reversal. The statements in voir dire do not necessarily imply insurance coverage. The first statement, cited above, merely refers to the failure to settle the controversy among the parties. Certainly parties to litigation often settle their differences without the involvement of insurance companies. Likewise, the second question quoted above can be interpreted as a legitimate inquiry into a possible defense-oriented bias of a prospective juror whose wife was employed by an insurance company. There was no specific indication that insurance companies were involved in the instant controversy.

Concerning the closing argument, we addressed a similar situation in Baikie v. Luther High School South (1977), 51 Ill. App. 3d 405, 366 N.E.2d 542. In Baikie, counsel for plaintiff stated plaintiff did not submit medical bills because they were paid “by other sources” (51 Ill. App. 3d 405, 412), and that defendant’s career would not “ ‘go down the drain by this lawsuit. Contrary there are no repercussions as a result of this.’ ” (51 Ill. App. 3d 405, 411.) We held these comments were of a general nature and did not require reversal. (51 Ill. App. 3d 405, 412.) We do not find significant legal distinction between the statements, defendant “will feel no pain” and “there are no repercussions as a result of this.”

In the case at bar, there was no specific mention of insurance coverage. In Baikie we felt that fact was significant, even though it is clear that simply the mention of insurance does not in itself require reversal. 51 Ill. App. 3d 405, 412; see also Sheley v. Guy (1976), 63 Ill. 2d 544, 348 N.E.2d 835.

In American State Bank v. County of Woodford (1977), 55 Ill. App. 3d 123, 129, 371 N.E.2d 232, appeal denied (1978), 71 Ill. 2d 597, we discussed the diminishing relevance of the rule prohibiting the mention of insurance coverage:

“While the mention of insurance during the course of trial is still frowned on by the Illinois courts, it is not quite the bete noir that it was a generation or more ago. The ubiquity of insurance, the tendency of the carriers to lament their underwriting losses in the public prints, and the increasing sophistication of jurors on the subject all tend to water down what was formerly an absolute rule.”

We find the statements at issue did not necessarily indicate insurance coverage, and even if the existence of insurance was in some way implied, the statements do not require reversal.

V

As to closing argument, defendant complains of the reference to the car driven by defendant as a “tank” (the car was a 1973 Cadillac), and the statement that the fact defendant had the right-of-way did not give him “a license to kill or maim.” Defendant also complains plaintiff’s argument concentrated on the liability of defendant, while remaining virtually silent on the liability of his co-defendant, Moffet. Finally, defendant takes exception to the “colorful” statements of plaintiff’s counsel describing pain as “torture” and his statement that “many people will pray to die from pain but nobody prays for pain.”

Our review of the propriety of the argument of counsel is extremely narrow. In Bise’s Supermarket, Inc. v. Valley Forge Insurance Co. (1977), 48 Ill. App. 3d 822, 825, 363 N.E.2d 186, quoting from Enloe v. Kirkwood (1970), 120 Ill. App. 2d 117, 123, 256 N.E.2d 459, appeal denied (1970), 43 Ill. 2d 397, we stated the standard of appellate review:

“ ‘The character and scope of argument to the jury is left very largely to the trial court, and every reasonable presumption must be indulged in that the trial court has performed his duty and properly exercised the discretion vested in him. [Citation.] The attitude and demeanor of counsel and the general atmosphere of the trial are observed by the trial court, and cannot be reproduced in the record on appeal. The trial court is, therefore, in a better position than a reviewing court to determine the prejudicial effect, if any, of a remark made during argument, and unless clearly an abuse of discretion, its ruling should be upheld. City of Chicago v. Chicago Title & Trust Co., 331 Ill. 322, 163 N.E. 17.’ ”

We do not believe the statements at issue in the case at bar are of a sufficiently prejudicial nature as to justify our reversal of the judgments.

VI

The jury awarded plaintiff Magdalene Kosch $250,000 for her injuries, and her husband Erich Kosch $50,000 for loss of consortium. Defendant contends these judgments are excessive as a matter of law. Defendant argues the verdicts were the result of the jury’s “passion and prejudice.” We do not agree.

Magdalene Kosch suffered a fractured right pelvis, humerus, and clavicle. Immediately after the collision she remained in the hospital for six weeks. After her release her pain continued and her injuries did not heal properly. Later, she underwent two surgical procedures. The first was for repair and removal of part of her fractured clavicle, and the second, a thoracic sympathectomy, to relieve pain by severing nerves to the upper extremity.

Although her pain was alleviated to a certain extent, plaintiff has continued to experience pain even after her operations. She has been fitted with a stimupulse which automatically administers electric shocks to reduce pain. The device has helped her in this regard.

In addition, plaintiff has been diagnosed as suffering from reflex sympathetic dystrophy, which causes a drooping of her right shoulder and restricted mobility in that shoulder, and also hyperthesia which causes weakness, numbness, and discoloration of her right hand. While the exact extent of Mrs. Kosch’s future recovery is not known, one specialist testified she would continue to have trouble for the rest of her life.

Mrs. Kosch proved special pecuniary damages exceeding $23,000. Also, “[t]he test of excessiveness, however, is not solely a comparison between the verdict and special damages. Each verdict is examined with deference to the determination of the jury and the injury involved.” Wanner v. Keenan (1974), 22 Ill. App. 3d 930, 937, and cases there cited.

Erich Kosch testified his wife is not nearly as active as she had been prior to the accident. She is unable to perform much of the housework, and he now does much of this work. He also testified that prior to the accident, he and his wife had an active sex life; however, they have not had a sexual relationship for a year and a half.

In Hartigan v. Robertson (1980), 87 Ill. App. 3d 732, 739, 409 N.E.2d 366, we enunciated the test by which we must determine whether a jury verdict is excessive:

“ ‘The amount of damages to be awarded is largely within the discretion of the jury.’ [Citation.] Unless improper instructions were given or evidence erroneously excluded, courts are ‘reluctant to overturn a jury’s determination of damages when the award is within the range of the evidence ° * °.’ [Citations.] The test of an excessive verdict is whether the total amount thereof falls within the flexible limits of fair and reasonable compensation or is so large as to shock the judicial conscience.”

In the case at bar, there is no dispute that plaintiff has suffered persistent pain for the eight years since the accident, she has undergone two operations, and has, and will continue to have, some physical disability from her injuries. Regarding her husband, Erich Kosch, there is no dispute that his sex life with his wife has diminished the last two years, and he has been required to spend much more time in household work since the accident.

Defendant cites statistics which indicate the average recovery for humerus fractures and clavicle fractures is $77,699 each. We do not find these statistics persuasive. First, because Mrs. Kosch suffered both a fractured humerus and fractured clavicle, her “average” recovery for those injuries presumably should be $155,398. That figure does not calculate damages for her fractured pelvis, and whatever complications and suffering which the jury apparently determined Mrs. Kosch experienced in “excess of the average” for people suffering similar injuries. We do not find the verdicts awarded by the jury to be “so large as to shock the judicial conscience.” We conclude the verdicts are not excessive as a matter of law.

VII

Defendant contends plaintiff’s counsel improperly impeached a witness he called to the stand, Dr. Prem Pahwa, and that plaintiff’s counsel utilized an improper hypothetical question to a second physician, Dr. Allan Hirschtick. We find these contentions without substantial merit.

Dr. Pahwa testified he did not diagnose any problem with Mrs. Kosch’s clavicle, nor the presence of reflex sympathetic dystrophy. Those diagnoses were contrary to those of two other treating physicians. Counsel’s “impeachment” consisted of questioning whether it is difficult to detect abnormality of a clavicle from reading X rays, and whether Dr. Pahwa had performed any other tests which would have verified injury to the clavicle or reflex sympathetic dystrophy.

In Illinois, when this case was tried, it was improper to impeach one’s own witness absent a showing of either hostility of the witness-or good faith surprise of counsel at a particular answer. (See Seibutis v. Smith (1980), 83 Ill. App. 3d 1010, 404 N.E.2d 950.) However, effective April 1, 1982, the Supreme Court of Illinois has eliminated this prohibition by amended Rule 238.

In any event, in the case at bar, we find no “impeachment” of Dr. Pahwa. In counsel’s questioning of the doctor, there was not a hint of possible professional incompetence or personal untruthfulness. The examination appears to be merely a good faith effort to determine why Dr. Pahwa’s examination may not have detected problems diagnosed by other treating physicians.

Defendant also argues a hypothetical question posed to Dr. Hirschtick was unduly lengthy and prejudicial. The hypothetical question to Dr. Hirschtick and his answer consisted of 23 pages of transcript. Included were several objections, and a side-bar conference.

Defendant cites Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 328 N.E.2d 301. In Borowski the supreme court held that three hypothetical questions which, with objections related thereto, consisted of approximately 90, 97, and 68 pages of transcript respectively, were unduly lengthy. (60 Ill. 2d 418, 426-28.) In addition, the court found prejudice to the defendant because of repeated references to “purely argumentative material designed to persuade the jury, to encourage it to disbelieve the testimony of defendants’ witness, and to prejudice the defendants in the eyes of the jury.” 60 Ill. 2d 418, 426.

In the case at bar, while the hypothetical question at issue may have been verbose and may have included some extraneous material, we do not find these factors caused discernible prejudice to defendant which would justify a new trial.

The judgments appealed from are accordingly affirmed.

Judgments affirmed.

CAMPBELL, P. J., and McGLOON, J., concur.


source: Caselaw Access Project

author: JUSTICE DOWNING

license: Public Domain

text:
    JACK LERNER et al., Plaintiffs-Appellees, v. WILLIAM ZIPPERMAN, Defendant and Counterplaintiff-Appellant.—(WAYNE PETERS, Defendant and Counterdefendant-Appellee.)
    First District (2nd Division)
    No. 81-649
    Opinion filed March 16, 1982.

      Edward S. Lipsky, of Chicago (William Paul Jones, of Rock, Fusco, Reynolds & Heneghan, of counsel), for appellant.
    Carol R. Thigpen and Thomas J. McCarthy, both of Chicago (Jenner & Block, of counsel), for appellee Wayne Peters.
    Liebling & Hauselman, of Chicago (Martin F. Hauselman and Patricia O’Brien Norum, of counsel), for other appellees.
   JUSTICE DOWNING

delivered the opinion of the court;

This case comes before this court for a second time. In the initial decision, we held that the trial court erred in entering summary judgment for plaintiffs without requiring joinder of defendant Wayne Peters (Peters), whom we perceived as a necessary party to the action. Consequently, the trial court’s decision was reversed and the case remanded. (Lerner v. Zipperman (1979), 69 Ill. App. 3d 620, 387 N.E.2d 946, appeal denied (1979), 79 Ill. 2d 612 (Lerner I).) Lerner I contains a recitation of the facts underlying the plaintiffs’ cause of action and the proceedings taken pursuant thereto. The present summary of facts will touch only briefly upon such matters and will recite the events which followed this court’s remand order in Lerner I.

Defendant William Zipperman (Zipperman), an attorney, alleged that he entered into a “partially oral and written” agreement with Peters on August 17,1971. Pursuant to the alleged agreement, Zipperman was to sell Peters an insurance agency and part of his law practice for the sum of $75,000. Zipperman alleged that Peters paid him “the sum of $52,500 6 e * leaving a balance due and owing * * * of $22,500.” In reality, the money was apparently paid by plaintiffs, not Peters.

Plaintiffs alleged that each of them was solicited “by Zipperman” in December 1971 to buy an insurance agency. Each plaintiff deposited $7,500 (or $45,000 total) with Zipperman.

Plaintiffs never received ownership of the insurance agency. Zipperman allegedly kept their money. Plaintiffs filed this action to recover those funds. There is no dispute that the same insurance agency was involved in these two transactions.

The trial court initially granted summary judgment to plaintiffs on their claim. In Lerner I, we reversed that determination solely because we believed Peters was a necessary party to the action in light of the then available facts. On remand, plaintiffs added Peters as a defendant. Some three months later, Zipperman filed a counterclaim against Peters for the $22,500 allegedly owed to Zipperman on their purported agreement. The trial court granted Peters’ motions to dismiss both plaintiffs’ action against him and Zipperman’s counterclaim. The court also granted plaintiffs’ renewed motion for summary judgment against Zipperman.

Zipperman appeals these determinations. He assigns as error the trial court’s (1) dismissing Peters despite this court’s holding in Lerner I; (2) dismissing Zipperman’s counterclaim against Peters; and (3) granting plaintiffs’ motion for summary judgment.

I

Zipperman argues that the trial court erred in dismissing plaintiffs’ complaint against Peters, claiming that Lerner I required Peters’ presence in that action. In the alternative, Zipperman asserts the entire case must be dismissed if we hold that Peters, although a necessary party, was properly dismissed from plaintiffs’ case.

In Lerner I, we held Peters was a necessary party because a judgment entered without his presence could prejudice his direct interests in the insurance agency and in the purported agreement with Zipperman. (69 111. App. 3d 620, 623-24.) Upon remand, plaintiffs amended their complaint to add Peters as a defendant. Peters responded by disavowing any pecuniary interest in the controversy between plaintiffs and Zipperman, thus seeking his dismissal therefrom. Plaintiffs did not contest Peters’ argument.

In light of additional facts now available to us, we must reassess our initial perception of Peters’ indispensibility to this case. Since Peters now flatly states he is unconcerned with the outcome of plaintiffs’ suit against Zipperman, and since plaintiffs obviously have no interest in proceeding to seek recovery against Peters on their claim, we now hold that Peters is in fact not a necessary party to the plaintiffs-Zipperman action. There is simply no apparent reason why Peters must be present as a co-defendant with Zipperman in this action. Consequently, the trial court committed no error in dismissing plaintiffs’ complaint against Peters on the valid ground that it failed to state a cause of action against him.

From this conclusion, we also hold that Zipperman’s alternative agreement is without merit. Zipperman bases his argument that the entire case should be dismissed on the premise that Peters was a necessary party. The cases he cited in support, particularly Village of Metamora v. Village of Eureka (1896), 163 Ill. 9,45 N.E. 209, and Waupoose v. Kusper (1972), 8 Ill. App. 3d 668, 290 N.E.2d 903, involve necessary parties. Since here we lack this underlying assumption, these cases are inapposite and Zipper-man’s entire argument falls. The action could proceed without Peters as a named defendant as there are still parties before the court against whom a binding decree can be entered.

II

Zipperman contends the trial court erred in dismissing his counterclaim against Peters.

A.

Zipperman first urges that Peters’ motion to dismiss the counterclaim should have been denied for the sole reason that it combined a section 45 motion with a section 48 motion in a single pleading. (Ill. Rev. Stat. 1979, ch. 110, pars. 45, 48.) Peters’ “motion to dismiss” states that it is filed pursuant to parts of section 48. One of the bases of the motion is that Zipperman’s counterclaim “has failed to state a claim upon which relief can be granted,” citing section 48(1) (i). Section 48(1) (i) allows filing of a motion to dismiss based upon “other affirmative matter avoiding the legal effect of or defeating the claim or demand.” Failure to state a cause of action is not the type of matter which falls within the purview of section 48(1) (i). Rather, such a motion is to be made under section 45. (See Michigan Avenue National Bank v. State Farm Insurance Cos. (1980), 83 Ill. App. 3d 507, 512, 404 N.E.2d 426, appeal denied (1980), 81 Ill. 2d 593; Andre v. Blackwell Electronics Industrial Co. (1972), 7 Ill. App. 3d 970, 977, 289 N.E.2d 27; see also Laycock, Dispositive Pre-trial Motions in Illinois, 9 Loy. Chi. L. J. 823, 831-38 (1978).) Thus, despite Peters’ protestations to the contrary, he has indeed filed a hybrid motion in this case.

Nevertheless, this fact alone does not require denial of the motion. Nothing in Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 406, 312 N.E.2d 605, which disapproved of this procedure, mandates denial of the improper motion as the sanction for the impropriety. Instead, we believe the appellate court should assess the validity of a trial court’s ruling on the merits of such improper motions on a case by case basis. Here, in light of the conclusions which follow, we find that summary reversal of the trial court’s dismissal order is unwarranted.

B.

Zipperman contends the trial court erred in dismissing the counterclaim based on Peters’ reliance upon the statute of limitations. His argument is that the statute should yield when, as here, it allegedly conflicts with the “inflexible and absolute rule of necessary parties.”

We have already ruled that Peters is not a necessary party to plaintiffs’ claim against Zipperman. Further, we find nothing in our decision in Lerner I which even implies that Peters would be a necessary party to this action solely for the purpose of allowing Zipperman to file a counterclaim against Peters. Consequently, the matter of a necessary party being irrelevant, it was required that Zipperman file such a counterclaim within the rules generally applicable to such pleadings. Zipperman’s counterclaim rested upon an alleged “partly oral and partly written agreement” with Peters. Thus, Zipperman was required to file his counterclaim within five years after his claim accrued. (Ill. Rev. Stat. 1979, ch. 83, par. 16; see Watson Lumber Co. v. Mouser (1975), 30 Ill. App. 3d 100, 103, 333 N.E.2d 19, appeal denied (1975), 61 Ill. 2d 600.) Zipperman does not assert, nor do the facts show, that the statutory period had not run prior to the filing of the counterclaim. He therefore failed to show error in the trial court’s ruling that the period had run. Further, Zipperman’s argument concerning Peters’ alleged failure to show he was prejudiced by Zipperman’s delay in filing his claim is irrelevant. Prejudice is not a consideration where the statute of limitations defense is raised. In sum, the trial court correctly found that the applicable statute of limitations barred Zipperman’s counterclaim against Peters. That pleading was rightly dismissed.

Ill

Zipperman contends the trial court erred in granting plaintiffs’ renewed motion for summary judgment because (A) such order was null and void for failing to comply with the mandate of Lerner I, and (B) the standards for granting of summary judgment were not met here.

A.

Zipperman argues that by dismissing Peters from the case, the trial court failed to join a necessary party as required, thus rendering all further proceedings null and void. As discussed above, Peters is not a necessary party to this action. Consequently, nothing precluded the trial court from entering summary judgment for plaintiffs if the grounds for such ruling were presented.

B.

Zipperman claims plaintiffs’ complaint is insufficient at law to serve as the basis for summary judgment. We disagree. Our examination of plaintiffs’ third and final amended complaint indicates that plaintiffs have adequately, although quite inartfully, alleged the elements of a cause of action for the tort of conversion. (See Farns Associates Inc. v. Sternback (1979), 77 Ill. App. 3d 249, 252, 395 N.E.2d 1103.) We reject Zipperman’s generalized argument to the contrary.

Zipperman also asserts that there exist genuine issues of material fact which preclude entry of summary judgment under well-settled standards. We will not state in detail the facts of this case which arise in large part from the parties’ pleadings and the affidavits of four of the plaintiffs (Hefter, Smith, Veron, and Winer) and of Zipperman. (A detailed recitation is found in Lerner I.) Briefly, Hefter, Smith, Veron, and Winer each stated that they tendered checks in the amounts of $7,500 per individual pursuant to a deal to purchase an insurance agency. Hefter gave a check made out to Zipperman to Smith, although he had never talked to Zipperman. Veron gave a check made out to Smith to the latter. Winer gave a check made out to Zipperman, but not at the latter’s request. Smith admitted that he solicited all plaintiffs except Winer. Zipperman admitted endorsing checks made payable to him by Lerner, Hefter, and Frankel. Smith stated that he gave Zipperman $45,000 in checks. It is unclear whose checks these were.

In our opinion, genuine issues of material fact are apparent from these facts. We need refer only to the most obvious factual question which is apparent: what was the basis for each plaintiff’s transfer of $7,500, which was either payable directly to or came into the possession of Zipperman? Only when this question is answered can it be determined that plaintiffs have established two of the elements of conversion: their right to the funds and their right to immediate, absolute and unconditional possession thereof. (Farns Associates Inc. v. Sternback (1979), 77 Ill. App. 3d 249, 252.) We believe a trial is necessary so that the presently murky details of the dealings of these parties can be sufficiently aired so as to allow a fair determination of the rights and remedies available. The trial court erred in entering summary judgment based upon the record in this case.

For all the above stated reasons, we affirm the trial court’s dismissal of Peters from plaintiffs’ complaint and from Zipperman’s counterclaim. We reverse the entry of summary judgment for plaintiffs against Zipper-man, and remand the case for trial on plaintiffs’ single cause of action for conversion.

Affirmed in part; reversed and remanded in part.

STAMOS, P. J., and PERLIN, J., concur.

       At oral argument, we were informed that an additional individual, not a party to- these proceedings, also invested $7,500, which would bring the total to $52,500, the identical amount Zipperman alleges he received “from Peters” on their alleged agreement. Apparently, Peters has never contributed his own funds to the kitty here, although the question is not free from dispute. See 69 Ill. App. 3d 620, 621 n.3.

       Of course, Peters’ potential testimony as to his involvement with plaintiffs and Zipperman, essential to achieve a complete determination of the controversy, could be taken pursuant to subpoena or other means not requiring Peters’ presence as a named party.

       We note in passing our perplexity as to why plaintiffs have not actively sought relief from Peters as well as Zipperman, since the record suggests Peters must have been involved in these transactions in some way. Additionally, we note that Zipperman had the chance to protect his interests against Peters from the outset of the case. His failure to do so in a timely fashion also raises some interesting questions.

       Since we can uphold the trial court’s dismissal order on this basis, it is unnecessary for us to determine whether Peters could validly rely on a statute of limitations defense to plaintiffs’ complaint against him. He raised this ground in his motion to dismiss.

       Zipperman also argues that, contrary to the trial court’s ruling, his counterclaim states a valid cause of action. Since that pleading must be dismissed because of the statute of limitations defense, we need not address this contention. For similar reasons, we will not decide whether the trial court erred in ruling that the doctrine of laches served to bar Zipperman’s counterclaim.

       It appears plaintiffs initially sought imposition of a constructive trust, but the case was transferred from the chancery division (where such an action would properly lie) to the law division (where a conversion action would be brought). The record is unclear as to the reasons for this court-ordered transfer. Statements made at oral argument before us intimated that the transfer may have resulted because plaintiffs could not prove the existence of a fiduciary relationship between themselves and Zipperman. We point out that the modern trend does not require this element in order to be granted the remedy of a constructive trust. (See Village of Wheeling v. Stavros (1980), 89 Ill. App. 3d 450, 454, 411 N.E.2d 1067, appeal denied (1981), 82 Ill. 2d 588.) We see no apparent reason why plaintiffs could not have pursued their constructive trust remedy under these facts.


author: PRESIDING JUSTICE WHITE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES PENDLETON, Defendant-Appellant.
    First District (3rd Division)
    No. 78-1866
    Opinion filed March 17, 1982.

      Michael L. Sherman and Thomas W. Drexler, both of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr, Mary Ellen Dienes, and Joseph J. McNerney, III, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE WHITE

delivered the opinion of the court:

Following a jury trial, defendant, James Pendleton, was found guilty of rape and armed robbery and sentenced to 6 to 8 years on each offense, the sentences to run concurrently.

On appeal, defendant raises three issues. First, that the trial court erred in denying his motion to quash his arrest and suppress his lineup identification. Second, that he was denied a fair trial when witnesses referred to police photographs as mug shots and when these photographs were admitted. The defendant failed to preserve either of these issues by failing to raise them specifically in his motion for a new trial. Additionally, defendant failed to object to the photographs when tendered into evidence. Nevertheless, because of their possible bearing on the third issue that he was denied a fair trial due to the incompetency of counsel, we will address both issues.

On May 30, 1975, defendant was stopped by the police because his vehicle failed to display a front license plate. Defendant was unable to produce a valid driver’s license. He was taken to the police station and was issued two tickets, one for failure to display a front license plate and the other for failure to produce a valid driver’s license. A bond of $50 was set for the traffic violations; defendant’s family came to the police station with sufficient money to bail him out. However, police did not release the defendant. The arresting officer had called the “hot desk” and was informed that defendant had a “stop order” placed against him for rape. The stop order had been issued on the basis of prosecutrix’ identification of a photograph of the defendant. Later that day defendant was placed in a lineup where he was identified by the prosecutrix as the man who had raped her. Defendant was then charged with the crime of rape.

I

Defendant made a pretrial motion to quash his arrest and suppress his lineup identification. The trial court denied both motions. Defendant contends this action was error and denied him a fair trial. Defendant contends (1) the police lacked probable cause for his arrest; (2) the police improperly held him in custody after bail money had been tendered; and (3) that he was denied right to counsel at the police lineup. We discuss his contentions in that order.

(1) A police officer may arrest a person without a warrant when he “has reasonable grounds to believe that the person is committing or has committed an offense.” (Ill. Rev. Stat. 1975, ch. 38, par. 107 — 2(c).) Whether or not probable cause exists in a particular case depends on the totality of the facts and circumstances known to the officers when the arrest was made. People v. Robinson (1976), 62 Ill. 2d 273, 276-77, 342 N.E.2d 356.

In the case before us, the police officers had ample basis for the initial warrantless arrest of defendant for the traffic violation. When the police stopped the defendant his vehicle did not display a front license plate, nor could defendant produce a driver’s license. Following customary procedures, the officers took defendant to the police station where bond was set.

(2) Defendant contends that he should have been released when the bail set for the traffic violations was tendered. However, a name check at the station revealed defendant was wanted on the rape charge, so he was not released and a lineup was arranged. In a case very similar to the one before us (People v. Hinton (1977), 45 Ill. App. 3d 925, 928, 360 N.E.2d 451), the defendant was initially arrested for disorderly conduct. Later that same day, the defendant was identified in a lineup and subsequently indicted for rape. This court concluded that because there was clear probable cause for the original arrest of defendant, it followed that any identifications which stemmed from the arrest could properly be admitted into evidence against the defendant.

Here, defendant’s initial arrest for a traffic violation was clearly based on probable cause. As in Hinton, defendant was placed in a lineup on the same day as his arrest and positively identified by the prosecutrix as her assailant. Defendant does not contend that an unreasonable amount of time elapsed between defendant’s arrest and his participation in the lineup. Nor does the defendant complain that the lineup was suggestive. Therefore, because the initial arrest of defendant was proper, the lineup identification was also proper.

Further, the identification by prosecutrix of defendant’s photograph as portraying the offender gave the police probable cause for holding defendant on the rape charge for the lineup which followed. (People v. Henderson (1974), 20 Ill. App. 3d 120, 312 N.E.2d 655.) That the police did not formally declare that the defendant was under arrest for rape did not affect the legality of his detention. People v. Helms (1978), 67 Ill. App. 3d 729, 735, 385 N.E.2d 127.

(3) We now turn to defendant’s contention that he was denied right to counsel at the police lineup. It is well settled that a person’s sixth and fourteenth amendment right to counsel attaches only at or after the time adversary judicial proceedings have been initiated against him. Such adversary proceedings may be initiated by way of a formal charge, preliminary hearing, indictment, information or arraignment. Kirby v. Illinois (1972), 406 U.S. 682, 688-89,32 L. Ed. 2d 411, 417, 92 S. Ct. 1877, 1881-82; People v. Earl (1979), 78 ill. App. 3d 188, 397 N.E.2d 97.

Here, at the time of the lineup under question, defendant had not been charged either by indictment or information. No initiation of an adversary judicial criminal proceeding had begun with respect to the crime for which the identification was sought. Therefore, defendant’s constitutional right to counsel did not attach. (People v. Earl (1979), 78 Ill. App. 3d 188, 193.) Since there was probable cause for the initial arrest, and probable cause for further detention, the lineup identification which followed was not the fruit of any illegal arrest, nor was it tainted by any deprivation of right to counsel. Accordingly, we find that the trial court correctly denied defendant’s motions to quash his arrest and suppress his lineup identification.

II

Defendant next contends that he was denied a fair trial when, during the course of the trial the prosecutrix used the phrase “mug shots” in referring to the photographs from which she identified the defendant. The court, out of the presence of the jury, advised the prosecutrix to refrain from the use of the term “mug shots” and no further mention was made. Later, a police officer made mention of “mug shots” from “mug books” when testifying in regard to the source of the photographs used for the identification of the defendant. In response to the police officer’s third such reference the court had his statement stricken and again no further mention was made during trial.

We are of the opinion that the brief references to the source of the photographs by the prosecutrix and the police officer were not prejudicial error. In each instance, the court took precautionary measures to prevent further mention of the term “mug shots” or “mug books” during the trial.

Defendant also contends that it was error for the trial court to admit these photographs into evidence. He maintains that the testimony and the photographs were prejudicial because they suggested to the jury that the defendant had been engaged in prior criminal activity. Generally evidence of other offenses is inadmissible except, however, where the evidence tends to aid in the identification of the accused as the person who committed the crime charged. (People v. Lewis (1964), 30 Ill. 2d 617, 621, 198 N.E.2d 812.) The admission into evidence or testimony of police photographs is not error per se, even if an inference of defendant’s prior criminal activity could be drawn by the jury. (People v. Longstreet (1974), 23 Ill. App. 3d 874, 881, 320 N.E.2d 529.) Specifically, “mug shots” are not held to be prejudicial as constituting evidence of other offenses where they are relevant to the issue of identity. (People v. Hardy (1979), 70 Ill. App. 3d 351, 361, 387 N.E.2d 1042.) The police photographs were shown to the prosecutrix for the purpose of identification. Prior to then-admission into evidence, the police legends were removed from the photographs to disguise, as much as possible, the fact that the photographs were taken from police files. (People v. Longstreet (1974), 23 Ill. App. 3d 874, 881; People v. Hardy (1979), 70 Ill. App. 3d 351, 361.) Therefore, the introduction of these photographs did not unfairly prejudice defendant.

III

The defendant’s third contention is that he was denied a fair trial by the incompetency of counsel. Defendant’s trial attorney was privately retained. In evaluating the competence of counsel, Illinois courts historically have employed a two-tiered system. In cases involving privately retained counsel defendants’ convictions were not reversed unless the representation was of such a low caliber as to amount to no representation at all or reduced the court proceedings to a farce or sham. (People v. Torres (1973), 54 Ill. 2d 384, 391, 297 N.E.2d 142.) In cases with appointed counsel, a higher standard was employed and defendants were granted new trials “if counsel was actually incompetent, as reflected in the performance of his duties as trial attorney, and if this incompetence produced substantial prejudice to the defendant without which the result of the trial would probably have been different.” (People v. Greer (1980), 79 Ill. 2d 103, 120-21, 402 N.E.2d 203.) In Cuyler v. Sullivan (1980), 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708, the United States Supreme Court held that it saw no basis for drawing this distinction between retained and appointed counsel. We will, as has been done in recent Illinois appellate decisions, use the higher of the two standards in evaluating the representation of defendant’s counsel. People v. Scott (1981), 94 Ill. App. 3d 159, 163, 418 N.E.2d 805.

Defendant’s first contention is that defense counsel failed to cross-examine properly the prosecutrix in order to discredit her direct testimony. However, the record shows that defense counsel on cross-examination did elicit some testimony that was favorable to the defendant. For instance, the prosecutrix admitted that the scene of the crime was actually darker than portrayed in a prosecution photograph. Counsel also established a discrepancy in the way the prosecutrix described defendant’s jacket. Furthermore, that no great harm was done on cross-examination to the testimony of the prosecutrix appears to be due to the strength of that testimony rather than to any lack of competence displayed by defense counsel. Under these circumstances, we cannot conclude that counsel’s representation caused such substantial prejudice to defendant that the outcome was probably changed.

Defendant’s second contention is that counsel failed to object to the admission of police photographs of defendant. We have already concluded that such evidence was admissible at trial. Nevertheless, even if this evidence were inadmissible, “incompetency is not established by mere failure to object to inadmissible evidence.” People v. Murphy (1978), 72 Ill. 2d 421, 436, 381 N.E.2d 677.

In his third contention defendant alleges trial counsel’s failure to develop the alibi defense. Defendant points out that the testimony of the sole alibi witness was discredited on cross-examination and on re-cross-examination and further by the testimony of a State’s witness. Defendant contends that at this point counsel should have recalled Ms. Jackson to the stand in order to clarify and buttress her testimony. Moreover, defendant alleges that counsel should have produced at least one additional alibi witness.

The determination of whether or not to call a witness is generally a matter of trial strategy. (People v. Elder (1979), 73 Ill. App. 3d 192, 203, 391 N.E.2d 403.) Even if it were an error on the part of trial counsel not to produce this additional testimony, errors in strategy and judgment on the part of counsel do not render the representation incompetent. People v. Murphy (1978), 72 Ill. 2d 421, 437.

Finally, defendant maintains that counsel’s statements in closing argument presenting alternate theories of defense could have been perceived by the jury as conceding guilt. We do not agree. In appraising the comments it appears that trial counsel presented every possible theory upon which the jury might have returned a verdict of not guilty. The fact that counsel’s efforts did not succeed did not make his representation incompetent. People v. Torres (1973), 54 Ill. 2d 384, 391-92.

For the above reasons we affirm the holding of the circuit court of Cook County.

Affirmed.

McNAMARA and McGILLICUDDY, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CONRAD BROWN, Defendant-Appellant.
    First District (3rd Division)
    No. 79-1921
    Opinion filed March 17, 1982.

      Frederick F. Cohn, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr and Mary Ellen Dienes, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE WHITE

delivered the opinion of the court:

Defendant, Conrad Brown, was indicted for arson, the murder of Robert Fender, and the murder of Thomas Patzke. He was tried by a jury and found guilty of arson and of the voluntary manslaughter of both Fender and Patzke. Under the extended term provision of the sentencing statute, he was sentenced to three concurrent terms of 14 years each for the three separate offenses. Defendant now appeals.

The following evidence was adduced at trial. In September 1971, defendant started his own business when he purchased a store in the city of Chicago. At the time of the events in question, defendant’s business properties included a store, an adjacent bowling alley and tavern and other nearby land. Defendant lived in quarters in the back of his store.

Due to an accumulation of business debts, on June 24, 1975, defendant filed a chapter 11 bankruptcy action. On May 13,1976, the bankruptcy court gave the Small Business Administration (SBA) leave to foreclose on a loan which it had made to defendant.

Thomas Patzke, a SBA loan officer, and Robert Fender, an auctioneer who did work for the SBA on a contractual basis, were assigned to liquidate defendant’s loan. On March 23,1977, Patzke and Fender made a field visit to defendant’s store to take inventory of the merchandise pledged as collateral for defendant’s loan and to ask for peaceful possession. Shortly after Patzke and Fender arrived, defendant asked all of his employees to leave the premises for a while. As to what transpired in the store after this among Patzke, Fender and defendant, we have only defendant’s testimony to rely upon.

Defendant testified as follows. Defendant told Patzke that he was worth $200,000.00 and that he would give Patzke all the cash money he had if Patzke would give defendant a few more days. Patzke asked defendant how much money he had and defendant said that he had eight or nine thousand dollars. Patzke then made a phone call. That such a phone call was made was corroborated by James Burke, Patzke’s supervisor.

Defendant further testified that after Patzke returned from his phone call, Patzke told Fender to take the money. Defendant went back into his living quarters to get the money. Then Fender, accusing defendant of stalling for time, pushed open the door to defendant’s living quarters and Patzke and Fender entered. Defendant handed the money to Fender who kept half and gave the other half to Patzke.

Defendant testified that Fender next asked him for the keys to the store; when defendant refused, a scuffle ensued in which Fender and Patzke received injuries which caused their deaths. This struggle took place outside of defendant’s living quarters.

Defendant testified that towards the end of the struggle he smelled smoke coming from his living quarters, so he started moving towards the back of the store. He looked back and saw Fender staggering and bleeding. Defendant hurried through the store and through the bowling alley adjacent to the store.

A massive fire destroyed defendant’s store. The bodies of Patzke and Fender were found inside the building. When Patzke was found, his hands were tied in front of him. At trial, Dr. Robert Stein, chief medical examiner of Cook County, testified that both Fender and Patzke died from cranial-cerebral injuries in association with acute carbon monoxide toxicity. Dr. Stein testified that Fender suffered from seven head lacerations that were the result of seven individual blows. There were several lacerations on Patzke’s head. Dr. Stein further testified that the wounds on each man were consistent with each individual having been struck with a blunt instrument.

Shortly after defendant came out of his building, police and firemen were at the scene. Although defendant remained in the vicinity for a while, he did not inform police or firemen that two men were still in the burning building. When asked at trial whether he remembered hitting the men and leaving them behind, defendant testified, “I guess you could say that.” A number of witnesses who saw defendant after the fire testified that they noticed nothing unusual about defendant’s appearance or behavior.

Defendant testified that during a portion of the night after the fire he stayed with his former wife at her apartment. Twice the police went there looking for defendant; he avoided them. The morning after the fire, defendant, with his attorney, surrendered to the police. Defendant had with him a bottle of arsenic and told police that unless he could speak to the mayor he would kill himself and many others.

I

Defendant first contends that the trial court erred in refusing to instruct the jury as to self-defense and defense of dwelling. An instruction regarding a legally recognized defense which has some foundation in the evidence must be given by the trial court and even very slight evidence on a given defense entitles a defendant to an instruction on that defense. (People v. Harris (1976), 39 Ill. App. 3d 805, 350 N.E.2d 850.) In determining whether there was any evidence that required an instruction of self-defense or defense of dwelling, we must review the evidence adduced at trial in light of the pertinent statutes.

Self-defense is defined by Illinois statute as follows:

“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.” Ill. Rev. Stat. 1977, ch. 38, par. 7 — 1.

In determining whether an instruction on self-defense should have been given, the trial court had to rely upon defendant’s testimony as to what transpired on March 23, 1977. According to defendant, there was a struggle in a storage area of the building with the two men over his store keys. During the struggle defendant was pushed to the ground. The two men were also on the floor struggling for the keys. Defendant picked up a pipe and struck Fender who fell back. At that point the struggle was apparently at a standstill. Defendant, however, had Patzke tie up Fender. Then, when neither Patzke nor Fender was threatening defendant, he began striking both men repeatedly with a piece of pipe. Defendant testified that he did not know why he hit them.

Relying on defendant’s own testimony, we find no evidence that defendant reasonably believed it was necessary for him to beat Patzke and Fender with a length of pipe to “prevent imminent death or great bodily harm.” Defendant was not under attack when he began beating the victims nor was it reasonable for him to believe that force was necessary to prevent great bodily harm to himself. Thus, the jury instruction on self-defense was properly refused by the trial court.

Defense of dwelling is defined by Illinois statute as follows:

“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to prevent or terminate such other’s unlawful entry into or attack upon a dwelling. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if:
(a) The entry is made or attempted in a violent, riotous, or tumultuous manner, and he reasonably believes that such force is necessary to prevent an assault upon, or offer of personal violence to, him or another then in the dwelling, or
(b) He reasonably believes that such force is necessary to prevent the commission of a felony in the dwelling.” 111. Rev. Stat. 1977, ch. 38, par. 7 — 2.

Based upon the testimony of defendant recited above, there was no evidence that would support an instruction on the defense of dwelling for the following reasons: (1) the struggle took place in a storage area of the store and not in defendant’s living quarters or “dwelling;” (2) at the time defendant began beating Patzke and Fender, the struggle had ceased; the men were subdued and defendant had no reasonable belief that such force was necessary to prevent the commission of a felony or an assault in the dwelling. Therefore, the trial court also properly refused the instruction on defense of dwelling.

II

Defendant next argues that the trial court erroneously refused to instruct the jury on the offense of involuntary manslaughter. Defendant contends that such an instruction was proper because there was evidence that defendant acted recklessly when he abandoned the two injured men in the burning building.

The crux of the offense of involuntary manslaughter is recklessness. (People v. Simpson (1978), 74 Ill. 2d 497, 504, 384 N.E.2d 373.) “A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow ° ° Ill. Rev. Stat. 1977, ch. 38, par. 4-6.

In the case at bar, none of defendant’s acts were indicative of mere recklessness. A review of defendant’s conduct underscores this conclusion. Defendant repeatedly beat the victims about their heads with a pipe; defendant fled the burning building knowing he had left behind two seriously injured men; defendant failed to inform either police officers or firefighters at the scene of the fire that two men were trapped inside the burning building. Such conduct is not evidence of a conscious disregard of a substantial risk. Rather, defendant’s conduct was willful and evidenced his intention to bring about the deaths of Patzke and Fender. Thus, defendant’s tendered instructions on involuntary manslaughter were correctly refused.

Ill

Defendant next contends that the State failed to prove beyond a reasonable doubt that defendant was sane at the time of the commission of the alleged crimes. While it is the general rule that all men are presumed sane, once defendant introduces evidence which raises doubt as to his sanity, the affirmative defense of insanity is placed in issue. (People v. Varnado (1978), 66 Ill. App. 3d 413, 418, 384 N.E.2d 37.) Once this defense is raised, the presumption of defendant’s sanity no longer prevails and the State must prove beyond a reasonable doubt that the defendant was sane at the time of the alleged crime. People v. Young (1978), 60 Ill. App. 3d 351, 353, 376 N.E.2d 739.

The statutory definition of insanity reads:

“A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.” Ill. Rev. Stat. 1977, ch. 38, par. 6 — 2.

At trial, three psychiatrists testified in response to a hypothetical question, incorporating the facts of this case, that the hypothetical man was suffering from a mental disease at the time of the alleged crimes and as a result he was unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Defendant contends that the State failed to meet its burden of proving defendant’s sanity beyond a reasonable doubt because the testimony of the psychiatrists was not contradicted by other expert evidence or by the lay witnesses who testified. It is further argued that the activity of the defendant after the occurrence was bizarre and that it substantiated the conclusions of the doctors.

To meet its burden, however, the State is not required to produce expert testimony regarding defendant’s sanity but may rely upon facts in evidence, and the opinions of nonexpert witnesses as to defendant’s sanity based on personal observation. (People v. Young (1978), 60 Ill. App. 3d 351, 353.) Moreover, evidence of bizarre conduct does not compel a finding of mental disease or defect sufficient to exonerate one from criminal liability. People v. Horton (1975), 29 Ill. App. 3d 704, 711, 331 N.E.2d 104.

Upon review of the record, we find that there was sufficient evidence adduced at trial to support the jury’s determination that defendant was sane beyond a reasonable doubt at the time of the crime. Defendant had never been in a mental institution and had never received mental treatment. Numerous witnesses testified that they saw and spoke to defendant soon after the fire and that there was nothing peculiar or strange about his actions or appearance. On the night of the fire, defendant successfully avoided the police. The next day he had his attorney accompany him to the police station where he surrendered. Police Investigator Markham, who questioned the defendant, testified that defendant did not appear to be “out of contact with reality” when he spoke with him.

A court of review will not disturb the finding of the trier of fact in an insanity case unless the finding was so improbable or unsatisfactory as to raise a reasonable doubt concerning defendant’s sanity at the time of the crime. (People v. Young (1978), 60 Ill. App. 3d 351, 355.) This is not the case here.

IV

Defendant next argues that the State failed to prove beyond a reasonable doubt that defendant was guilty of arson. By its very nature the crime of arson is usually incapable of direct proof and the evidence is often necessarily of a negative nature. (Commerce Union Bank v. Midland National Insurance Co. (1964), 53 Ill. App. 2d 229, 239, 202 N.E.2d 688.) The opportunity for commission of an arson, the motive inducing an arson, and the identity of the person accused of arson may all be established through circumstantial evidence. (People v. Smith (1976), 44 Ill. App. 3d 237, 241, 357 N.E.2d 1320.) Moreover, defendant’s criminal intent to commit arson may be adequately proved by: (1) defendant’s presence on the premises immediately before the fire; (2) defendant’s previous threat to burn the premises; and (3) defendant’s violent encounter with an individual at the premises shortly before the fire. (People v. Alexander (1966), 77 Ill. App. 2d 151, 155, 222 N.E.2d 172.) Evidence of prior threats is highly relevant in establishing a logical inference of guilt. People v. Klisnick (1979), 73 Ill. App. 3d 148, 156, 390 N.E.2d 1330.

Two witnesses, Sam Horowitz, defendant’s landlord, and Ronald Deutsman, president of University National Bank, a creditor of defendant, testified that prior to the fire defendant had told them that he would burn down his store before losing it to creditors. Defendant testified that he was in the building when the fire started. Defendant further testified to a violent encounter with the two victims. A five gallon can was found in the store after the fire. A gas chromatography test revealed a small quantity of gasoline on the shoe defendant wore on the day of the fire. Two experienced firemen testified that the thick black smoke produced by the store fire indicated the presence of a petroleum-based fire accelerant. Firefighters also testified that the fire appeared to have two separate points of origin.

It is the function of the trier of fact to determine the credibility of witnesses, and its findings will not be disturbed unless the evidence is so unsatisfactory as to raise a reasonable doubt of defendant’s guilt. (People v. Klisnick (1979), 73 Ill. App. 3d 148, 157.) Here, we find no reason to disturb the jury’s verdict.

V

Defendant next alleges that the accumulation of trial errors denied defendant a fair trial. The errors alleged by defendant are as follows.

(1) Defendant first contends that the trial court erred in ruling that the expert opinion of the psychiatrists testifying as to defendant’s sanity must be in response to a hypothetical question. Defendant maintains that each of the psychiatrists should have been permitted to give his opinion as to the defendant’s state of mind at the time of the crimes. However, it has been held proper to limit the testimony of an examining psychiatrist to hypothetical questions. (People v. Slago (1978), 58 Ill. App. 3d 1009, 1013-14, 374 N.E.2d 1270.) This procedure was followed by the trial court and, accordingly, we find that no error resulted.

(2) Defendant next contends that prejudice occurred when the trial court prevented the defense from questioning Dr. Kelleher as to who requested that Dr. Kelleher examine defendant. Defendant maintains that it would have enhanced Kelleher’s credibility if it were known to the jury that Kelleher examined the defendant at the request of the prosecution.

Defendant relies upon Davis v. Gulf, Mobile & Ohio R.R. Co. (1971), 130 Ill. App. 2d 988, 272 N.E.2d 240. This case is inapposite as it involves impeachment of a witness, whereas the issue raised by defendant involves the bolstering of a witness. In any event, during defense counsel’s direct examination, Dr. Kelleher testified that he examined defendant in his official capacity with the Psychiatric Institute of the Circuit Court of Cook County. Furthermore, defense counsel was permitted to argue to the jury in his closing argument that Kelleher worked for the circuit court. Therefore, since Kelleher’s credentials were fully disclosed to the jury, we are of the opinion that no prejudicial error occurred.

(3) Defendant next contends that the State was erroneously permitted to impeach the defendant with a prior inconsistent statement. We need not address this issue since defendant failed to preserve it for review by specifying it in his written motion for a new trial. Hence the issue is waived. People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.

(4) Defendant next contends that the trial court erred in refusing to permit the defense to introduce the full text of a statement used by the State to impeach defendant. During cross-examination, defendant testified that during an interview with Dr. Garvin he told the doctor that on the night before the fire he did sleep. However, defendant then qualified this testimony by explaining that what he meant was that he had only “lain down” for a few hours, but never really “slept” in the true sense of the word. In rebuttal, the State introduced the testimony of Dr. Garvin to prove that defendant had indeed slept on the night preceeding the fire. Garvin testified that defendant told him that on the night preceeding the fire “he slept” and “when he woke up the next morning he felt good.”

Defendant maintains that the trial court erred in refusing defendant the opportunity to introduce the notes of the entire conversation between defendant and Garvin. In his offer of proof, however, defendant has not demonstrated how the remaining context of the statement would have rehabilitated him. Nor does he claim that the remainder of the conversation bore any relation to the impeaching matter, i.e., whether or not defendant slept. Moreover, during cross-examination, defendant adequately explained what he meant by his remark, “I slept” to Dr. Garvin.

In making an offer of proof, counsel must explicitly state what excluded testimony would reveal and not merely allude as to what might be divulged by such testimony. (People v. Slaughter (1977), 55 Ill. App. 3d 973, 371 N.E.2d 666.) Here, defense counsel never clearly articulated what the remainder of defendant’s conversation with Dr. Garvin would have revealed, or why it was material to the issue of his sanity. Therefore, we cannot conclude that error resulted.

(5) Defendant next argues that the trial court improperly ruled, in limine, that Mr. Aronson, a defense witness, was subject to impeachment by a prior conviction for contempt of court.

Whether to allow impeachment by prior conviction is within the discretion of the trial court, and the test to be applied is whether the probative value of the evidence of the crime is substantially outweighed by danger of unfair prejudice. (People v. Warmack (1979), 73 Ill. App. 3d 783, 392 N.E.2d 334.) Our supreme court has held that crimes involving dishonesty or false statements bear a relation to testimonial deceit and should be admissible for impeachment purposes. People v. Spates (1979), 77 Ill. 2d 193, 395 N.E.2d 563.

Here, the defense witness was convicted of contempt of court for taking money privately while representing people through the Federal Defender Program. The trial judge ruled that these charges were relevant to the credibility of the witness and, therefore, the contempt citation would be admissible for impeachment purposes. We are of the opinion that the trial judge properly exercised his discretion and no unfair prejudice resulted to the defendant.

(6) Defendant next argues that prejudicial statements were made by the prosecutor in closing argument. In closing argument the prosecutor stated over the objection by defense counsel:

“Here is a man, ladies and gentlemen, no history of mental illness, never had any mental problems in the past, and its just a one-shot deal. Just that day he had this break with reality, and he is not responsible for what he did, and let’s send him back out in the community.”

Specifically, defendant claims that these remarks misled the jury to believe that if defendant were acquitted for reasons of insanity he would immediately be returned to the community. Defendant argues that this remark was a misstatement of the law because Illinois statute provides that if defendant were found innocent by reason of insanity he would be returned to the community only upon a finding that he was no longer insane. Defense counsel relies on section 115 — 3(b) of the Code of Criminal Procedure of 1963 and section 5 — 2—4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, pars. 115 — 3(b), 1005 — 2—4(a)), which provide that if a defendant is found innocent by reason of insanity, “a hearing shall be held pursuant to the Mental Health Code ° 0 * to determine whether the defendant is in need of mental treatment. If the defendant is found to be in need of mental treatment the court shall enter an order so specifying.”

The standard for reviewing the prosecutor’s argument is that improper comments during closing argument do not warrant reversal unless the argument was so seriously prejudicial that it deprived defendant of a fair trial. (People v. Myers (1966), 35 Ill. 2d 311, 335, 220 N.E.2d 297.) In Myers the prosecution argued that if a jury would find defendant not guilty by reason of insanity, they would be “gambling” that he would go to a security hospital. In People v. Fox (1970), 131 Ill. App. 2d 604, 264 N.E.2d 502, the court, citing Myers, refused to reverse where the prosecutor in closing argument stated that defendant could be out in the street two days after being put in an institution.

Here, the prosecutor’s comment was improper because it implied that defendant would be unconditionally released if he were found innocent by reason of insanity. However, this comment was no more inflammatory than those before the court in Myers or Fox. Furthermore, defendant’s sanity was not the sole issue during the trial; there was ample evidence of defendant’s guilt. Finally, we do not believe that the prosecutor’s comment was so prejudicial as to deprive defendant of a fair trial and, therefore, we find no reversible error.

(7) Defendant finally contends that he was denied a fair trial because his trial counsel’s argument was improperly limited. First, in regard to the arson charge, defense counsel attempted to argue to the jury that if the prosecution had evidence that neither victim smoked, such evidence would have been proffered to the jury to show that the fire could not have been started by a careless smoker. Second, defense counsel attempted to argue that because the prosecution had the power and funds to retain psychiatrists, the prosecution would have produced any expert testimony that was available to establish that defendant was sane at the time of the crime. On each of the two occasions of which defendant complains, objections to defense counsel’s argument by the prosecution were sustained. In each case, however, defense counsel later successfully argued to the jury that no such evidence had been adduced at trial.

This court has held that it is improper for defense counsel to engage in unsupported speculation or allegations as to the reasons for the absence of testimony. (See People v. Jablonskis (1978), 64 Ill. App. 3d 559, 563, 381 N.E.2d 774.) Here, the record reveals that the trial court properly restricted defense counsel from speculating as to why the prosecution did not present certain evidence. Furthermore, we fail to see how defendant was denied a fair trial when it is apparent from the record that he was ultimately successful in stressing the fact that certain evidence was never adduced at trial.

Finally, in regard to defendant’s argument that an accumulation of trial errors denied him a fair trial, this court will not reverse a judgment merely because error has been committed unless it appears that real justice has been denied or that the finding of guilty may have resulted from such error. (People v. Harris (1979), 70 Ill. App. 3d 363, 369, 387 N.E.2d 1109.) Here, defendant received a fair and impartial trial and there was ample evidence of his guilt. Therefore, we will uphold the decision of the trial court.

VI

Defendant was convicted of three felonies: (1) arson, (2) the voluntary manslaughter of Fender, and (3) the voluntary manslaughter of Patzke. He assigns as error the imposition of three extended term sentences for these crimes to run concurrently. It is argued that since the jury convicted him of voluntary manslaughter and found that his actions were provoked, the imposition of an extended term was erroneous. Section 5 — 5—3.2(b) of the Unified Code of Corrections provides that an extended term may be imposed “[wjhen a defendant is convicted of any felony and the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(b)(2).) Defendant relies on People v. Evans (1981), 87 Ill. 2d 77, 429 N.E.2d 520. In Evans defendant received an extended term of 10 years’ imprisonment for voluntary manslaughter and the maximum term of 5 years for the aggravated battery. Our supreme court held that the extended term sentence was error on these narrow grounds, “because the evidence indicated that all of Evans’ actions toward Davenport were committed under the belief, although unreasonable, that he was acting in self-defense, we cannot say the aggravated battery offense was accompanied by wanton cruelty.”

This court has held that an extended-term sentence is appropriate where there is ample evidence of exceptionally brutal or heinous behavior indicative of wanton cruelty. People v. Eckles (1980), 83 Ill. App. 3d 292, 305, 404 N.E.2d 358.

Defendant repeatedly beat his victims about the head inflicting fatal injuries. Then he left them helpless in the building which he had set afire. In this case, unlike Evans, there was no evidence of either self-defense or defense of dwelling. We find there was ample evidence to support the trial judge’s determination that defendant’s conduct was heinous and indicative of wanton cruelty.

Finally, defendant argues that an extended-term sentence was inappropriate due to defendant’s background as a law abiding, community-minded businessman. The finding that defendant’s conduct was heinous and indicative of wanton cruelty was sufficient for the imposition of an extended term sentence. People v. Eckles (1980), 83 Ill. App. 3d 292, 305.

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

Affirmed.

McNAMARA and RIZZI, JJ., concur.