author: JUSTICE ALLOY PRESIDING JUSTICE STOUDER,

text:
      In re EDWARD JOHNSTON—(The People of the State of Illinois, PetitionerAppellee, v. Edward Johnston, Respondent-Appellant).
    Third District
    No. 3—83—0121
    Opinion filed September 30, 1983.

      STOUDER, P.J., dissenting.
    Gary W. Klages, of Guardianship & Advocacy Commission, of Springfield, and Jeff Blesko, of Guardianship & Advocacy Commission, of Carbon-dale, for appellant.
    Raymond G. Kimbell III, State’s Attorney, of Galesburg (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE ALLOY

delivered the opinion of the court:

In the cause before us, Edward Johnston was alleged to be a person subject to involuntary admission under the Illinois Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1979, ch. 91V2, par. 3 — 400). In a bench trial, the respondent was found subject to admission and was committed to the Illinois Department of Mental Health and Developmental Disabilities for a period of 60 days. From this involuntary admission, the respondent appeals. The basic issue raised in this case is whether the trial court erred in finding the respondent was subject to involuntary admission.

On September 16, 1982, respondent Edward Johnston sought admission to the Galesburg Mental Health Center (Mental Health Center) as a voluntary patient pursuant to section 3 — 400 of the Mental Health and Developmental Disabilities Code (111. Rev. Stat. 1979, ch. 9IV2, par. 3 — 400). On January 18, 1983, respondent requested that he be discharged from the Mental Health Center pursuant to section 3— 403 of the Mental Health and Developmental Disabilities Code. After six days, on January 24, 1983, the respondent attempted to leave the institution believing he had the right to do so. Subsequently, the Mental Health Center sent workers to return respondent to the Mental Health Center. The respondent was returned to the Center with threats and physical force.

After the respondent was returned to the Mental Health Center, a petition for involuntary admission was filed by Deborah Dalton asserting that the respondent was mentally ill and, because of his illness, could reasonably be expected to injure himself or others or is unable to provide for his basic needs. The petition was accompanied by certificates of an unknown psychologist and Dr. Ma Paz Salamat Cristobal stating that the respondent was subject to involuntary admission. These certificates are dated January 25, 1983, the morning after the recapture incident.

At a hearing on February 4, 1983, at the Galesburg Mental Health Center before the judge, the respondent initially challenged the jurisdiction of the court on due process grounds but such challenge was overruled. The State then presented Dr. Cristobal, who testified that she had been respondent’s attending psychiatrist since his admission and that she had seen the respondent two or three times a week.

Dr. Cristobal then testified to the symptoms of the illness she had observed. She stated that she witnessed the tendency of the respondent to get upset and frustrated easily. The doctor also testified to a conversation that occurred on January 25, 1983, the morning after Johnson’s unauthorized absence and forced readmittance, at which time the doctor stated that she asked respondent where he was going and the respondent stated he was going to a friend’s home, but he did not know the address. Dr. Cristobal testified that the respondent was very angry concerning the forced readmission and the force that was used by the Mental Health Center staff during the incident.

Dr. Cristobal, in discussing organic disabilities, stated that she noted that respondent was suffering from grand mal and petit mal seizures (the possible results of a head trauma at an early age). To control these seizures, the respondent is required to take anticonvulsive medication for the seizures. Based on Dr. Cristobal’s observations, she diagnosed the respondent as having an organic personality syndrome type of mental illness. In response to questions concerning the likelihood that the respondent would inflict serious harm upon himself or another in the near future, the doctor stated that the respondent would be “quite likely to hurt others if he doesn’t control himself.” Dr. Cristobal also testified that respondent was unable to provide for his basic needs because he may at some time in the future refuse to take his seizure medication. The trial court, in denying a motion for a directed finding, stated that the evidence as presented, and taken in the light most favorable to the non-moving party, had presented a prima facie case, i.e., the State had shown that regardless of respondent’s legal right not to take medication, the fact was that if he did not take the medication, he would suffer seizures. The court found that the evidence that respondent cannot take care of himself, coupled with evidence of the diagnosis of organic personality syndrome and the refusal to take necessary medication to control seizures, met the State’s burden.

The trial court noted that Dr. Cristobal did testify that respondent lacked insight into the need for his medication and that the medication was needed to control his seizures. The court interpreted the doctor’s comment on self-care to mean only that respondent was able to feed and clothe himself, and take care of his personal hygiene, but not to meet the needs of taking the four different medicines for his seizures.

When the respondent took the stand he testified that he suffered seizures which were with him since birth. Respondent stated that he had not failed to take his medication in the recent past and he had no intention of refusing medication in the future. On cross-examination, the respondent stated that he “blacks out” from seizures but denied injurying anyone by having a seizure.

The trial court, after the close of the evidence observed to respondent that the main problem is getting the seizures under control. The court noted that the respondent indicated that he would take his medicine, but also admitted that he had indicated to the doctor a few days previously that he was not going to take his medicine, or did not think he needed to.

The court stated specifically that “It is not the law that you are required — we are not talking about drugs to control your mind; we are talking about drugs that help to control your seizures.” The court informed Johnston that it did not believe he was able to understand the necessity of medication and the appropriate dosages.

The court stated that, accordingly, it would find that the respondent was subject to involuntary admission and the court would sign the order that he be hospitalized. The court informed the respondent that the doctor would work with him and try to get him to take the right medicine in the right amounts and at the right times.

On appeal in this case, the appellant contends that the trial court erred in finding, by clear and convincing evidence that the respondent was unable to provide for his basic needs when it based its findings on speculation that the respondent may refuse to take his prescribed medication and was uncertain of future living arrangements. The respondent does not contend he was mentally ill at the time of the hearing. The People properly contend that the evidence introduced at the hearing established, by clear and convincing evidence, that respondent was subject to involuntary admission.

The parties agree that an individual must be shown to be subject to involuntary admission by clear and convincing evidence. Clear and convincing evidence is stated to be something less than proof beyond a reasonable doubt. (In re Stephenson (1977), 67 Ill. 2d 544, 367 N.E.2d 1273.) In order to be subject to involuntary admission it need not be shown that the respondent is a definite danger to himself or society. (In re Stephenson; In re Gregorovich (1980), 89 Ill. App. 3d 528, 411 N.E.2d 981.) The People assert that the courts accordingly are not required to wait until someone is harmed before ordering hospitalization for the person who might cause such harm. In re Haber (1979), 78 Ill. App. 3d 1120, 1123, 398 N.E.2d 121, 123.

On appeal, the trial court’s determination will not be reversed unless it is manifestly erroneous. It should also be noted that in civil commitment cases, the medical science of predicting the future is inexact, so that a reviewing court will normally uphold a commitment order where there is a reasonable expectation that the respondent might engage in dangerous conduct. In re Powell (1980), 85 Ill. App. 3d 877, 880, 407 N.E.2d 658, 660.

It is clear that the trial court in this case did not abuse its discretion in determining that the respondent was subject to involuntary admission. Dr. Cristobal had been the attending treating physician since the respondent had voluntarily admitted himself to the Mental Health Center on September 16, 1982. As we had noted previously, the testimony of Dr. Cristobal indicated that the respondent is easily frustrated and gets loud and verbally hostile. The doctor stated that respondent had attempted to sign out of the Mental Health facility even though he had no plans for himself and that when asked where he was going he stated that he was going to visit a friend in Silvis. The doctor determined that the respondent did not know the address of his friend nor had he communicated -with his friend.

Moreover, it was also shown that the respondent did not have his medications with him when he left the Mental Health Center. When he was asked about this, respondent replied that he did not need his medications. According to the doctor, the respondent needs the medications to control his seizures and that he was required to take four types of anticonvulsant medications for his seizures. The doctor said that the respondent was suffering from limited insight and impaired judgment because he did not believe he needed medication for his convulsions. The doctor testified also that respondent still had seizures and that his condition was uncontrolled and that respondent believed he could manage without medication.

As noted, the defendant was suffering from organic personality syndrome and borderline intellectual function, according to the doctor. The doctor based her diagnosis on the respondent’s temper outbursts, his inability to control his aggressive tendencies and his low threshold of frustration. The doctor was asked whether the respondent was ■likely to inflict serious harm upon himself or other people in the near future. The doctor stated that while the respondent’s primary problem was an inability to care for himself, he could also be a danger to others because he is easily provoked or agitated. The doctor also stated that the respondent was quite likely to hurt others if he did not control himself, and the medication was necessary for him to remain under his own control.

When the respondent testified on his own behalf, on direct examination, he confirmed that he still suffered from seizures from time to time. When he was asked what caused his seizures, the respondent answered, “When the sun hits my head, when I am out walking, I just go into one, because when it gets up too high, too hot out there, I go into a seizure.” Respondent was also asked on direct examination if there were times when he failed to take his medicine when he was outside of the Mental Health Center. He admitted he had failed to take the medication a “long time back” and had twice overdosed his anticonvulsant medication. He was also asked if he intentionally overdosed, and the respondent answered, “I just was mad at the time, I just done that.” Respondent also stated that during his seizures, he “cracked” his head “wide open.” The State contends it is clear from the record that respondent is suffering from a mental illness which makes him dangerous to himself and others. The respondent’s inability to control himself, stemming from any failure to take his required medication, would present a clear and present danger to others if he was then released from the Mental Health Center.

In the instant case, the psychiatrist testified that the respondent had specifically told the doctor that he did not need his medication and, also, on a prior occasion when he failed to take his medication he injured himself. He admitted overdosing on two occasions and the People, therefore, contend that the trial judge was not manifestly erroneous in determining that the respondent was subject to involuntary commitment because he was unable to provide for his basic needs and was reasonably expected to inflict serious harm upon himself or another in the near future if he did not take his medication.

We are aware of the fact that in Jackson v. Indiana (1972), 406 U.S. 715, 32 L. Ed. 2d 435, 92 S. Ct. 1845, the court held that an individual found to be incompetent to stand trial, could not be indefinitely committed to a mental hospital, but only can be held for a reasonable period of time to determine if there exists a substantial probability that he will attain such capacity in the foreseeable future. The same condition would apply with reference to the respondent here. The respondent may make progress under medical care and qualify for early release. The trial court’s order of admission simply covers the 60-day period.

For the reasons stated on the basis of the record, the order of the trial judge is affirmed.

Affirmed.

BARRY, J., concurs.

PRESIDING JUSTICE STOUDER,

dissenting:

I do not believe that sufficient evidence was presented at the hearing to justify the respondent’s involuntary admission under the Illinois Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1981, ch. 911/2, par. 3 — 400).

An individual is subject to involuntary admission if he is reasonably expected to inflict serious harm upon himself or another in the near future; or if he is unable to provide for his basic physical needs so as to avoid seriously harming himself. (Ill. Rev. Stat. 1981, ch. 91V2, par. 1 — 119.) The standard of proof is one of clear and convincing evidence. Ill. Rev. Stat. 1981, ch. 911/2, par. 3 — 808; In re Stephenson (1977), 67 Ill. 2d 544, 367 N.E.2d 1273.

The evidence presented by the State simply did not justify the requisite findings for involuntary admission under the Mental Health Code. No evidence was presented of specific instances where the respondent had refused to take his prescribed medicine. Dr. Cristobal’s testimony that the respondent’s failure in the future to take his medicine could result in injury to himself or others was speculative. In fact, the respondent testified that he had not failed to take his medicine in the recent past and that he had no intention of not taking his medication in the future.

Speculation that an individual might not take prescribed medication which could result in his harming himself or others does not satisfy the standard which requires the State to prove its case of involuntary admission by clear and convincing evidence. Evidence of specific instances in which the individual has failed to cooperate medically must be presented before the clear and convincing standard is met. People v. Nunn (1982), 108 Ill. App. 3d 169, 438 N.E.2d 1342; In re Fields (1978), 60 Ill. App. 3d 869, 377 N.E.2d 301.

Evidence of a statement made by the respondent during his forced readmittance to the Mental Health Center indicating that he felt no need to take his medication was not a specific instance of his failure to take prescribed medication. Thus, there being only evidence of a speculative nature, the State did not prove the respondent’s need for hospitalization by clear and convincing evidence.

The majority does not address itself to the remaining basis of the trial court decision, namely, that the respondent was unable to provide for his basic needs because he was uncertain of his future living arrangements. In clarifying this particular issue, I would add that this type of evidence does not in any way contribute to support the trial court’s determination of the need for hospitalizing the respondent.

Therefore, for the reasons set forth above, I would reverse the decision of the trial court.


source: Caselaw Access Project

author: JUSTICE CAMPBELL

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DALE BLEVINS, Defendant-Appellee.
    First District (1st Division)
    No. 81—2049
    Opinion filed September 26, 1983.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Dean P. Karlos, and Larry J. Crown, Assistant State’s Attorneys, of counsel), for the People.
    Jody C. Weiner, of Chicago (Jeanine M. Wall and David H. Robertson, Jr., of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Defendant was arrested and charged by indictment with possession of a controlled substance and possession of a controlled substance with intent to deliver. (Ill. Rev. Stat. 1981, ch. 56V2, par. 1401(a)(2).) After a hearing, the trial court sustained defendant’s motion to quash the arrest and suppress the evidence. The State now appeals.

The issues raised on appeal are: (1) whether the police officers had reasonable suspicion to believe that defendant had concealed contraband inside his sealed manila envelope when the officers took possession of said envelope for a canine sniff; (2) whether probable cause to search defendant’s manila envelope was established; and (3) whether the trial court committed reversible error in finding that defendant’s consent to a search of his manila envelope was not voluntary.

We affirm.

Officer Kozaritz testified that on March 19, 1981, at approximately 5:50 p.m., defendant arrived at O’Hare Airport on a commercial flight from Fort Lauderdale, Florida. Officer Kozaritz and his partners, Officers Abreu and Tourney, were conducting a surveillance for drug couriers arriving on flights from Fort Lauderdale and Miami, Florida. Defendant was between the 10th and 15th person to deplane. He was wearing blue jeans, cowboy boots, a tweed overcoat, and a yellow shirt. As defendant walked down the terminal, he bounced a golf ball and brushed into a few people. About 40 feet down the terminal, defendant stopped, and then looked over his shoulder. At the baggage area, defendant looked over his shoulder again and observed that his luggage had not yet arrived. Defendant then placed a phone call. Officer Kozaritz testified that he overheard defendant state that, “he was in Chicago and at O’Hare Field and that he had a surprise and that he couldn’t talk, he was on a public phone.” Defendant retrieved his large suitcase and started walking towards the exit door. The three officers, wearing plain clothes and displaying no weapons, approached defendant at the same time. Officer Kozaritz walked alongside defendant and then up to the front of him. Officer Abreu walked to the left of defendant and Officer Tourney walked to the right of defendant. Officer Kozaritz then identified himself as a Chicago police officer and asked to talk to him. Defendant responded, “sure,” and placed his suitcase on the ground. Upon being asked for identification, defendant stated his name and produced his Florida driver’s license which bore a photograph matching his appearance. Korzaritz testified that in reply to his inquiry, defendant, who “appeared a little nervous,” stated that he was coming from Fort Lauderdale and going home to Wisconsin. Next, Officer Kozaritz informed defendant that he and his partners were seeking drug couriers from Fort Lauderdale and Miami, Florida. Defendant replied, “You got the wrong guy this time.” When Officer Kozaritz then asked if he could look inside defendant’s suitcase, defendant said, “Sure, why not, over there, though.”

Defendant, carrying his suitcase, joined the police officers 15 to 20 feet from the exit door at an area between the escalator and east wall. Officer Kozaritz testified that he informed defendant of his right not to open the suitcase. Defendant opened the suitcase and stated that it contained clothing and medical records. Officer Abreu searched through the clothing and also removed a locked attache case from the suitcase. Officer Kozaritz then asked defendant if the police could look inside the attache case. Kozaritz testified that defendant replied, “sure,” and opened the attache case. Kozaritz stated that defendant was never informed that he could refuse to unlock the attache case. Officer Abreu found three 7 x 12 inch manila envelopes inside the attache case. After feeling the outside of all three, he handed Officer Kozaritz an unmailed envelope which had a doctor’s address, postage, an insured label, and the phrase “medical records” on it. According to Kozaritz, one side of the envelope felt hard and the other side felt like a pliable substance. Kozaritz testified that defendant first stated that the envelope contained medical records, but then said that they were not his medical records and that an unknown guy in Florida had given him an airline ticket and $200 to bring the envelope to Chicago. Following this conversation, Officer Abreu handed Officer Kozaritz a ledger, containing names, fractional amounts, and weights, which had been inside defendant’s attache case. When asked whether he lived at the Florida address on his driver’s license, defendant responded that he now lived in Wisconsin. Kozaritz testified that defendant agreed to accompany the police officer to the Drug Enforcement Office, stating that he “would want to get this matter over with tonight.”

In a room at the Drug Enforcement Agency office, Officer Kozaritz explained to defendant that the officers thought that there were narcotics in the envelope marked “medical records” and that they were going to have a customs dog sniff it. When asked if the police could look inside the envelope, defendant refused to consent. Kozaritz testified that after Officer Abreu left the room with the envelope to get a narcotics detection dog, he informed defendant that if the dog alerted to the envelope, a search warrant would be obtained. When Officer Abreu returned to the room, one side of the envelope was ripped, exposing a clear plastic bag containing a white substance. It is unclear from the record whether the envelope was torn open by the police or by the dog. Kozaritz testified that upon being informed that the dog had alerted to the envelope, defendant said, “you guys are going to get a search warrant anyhow, you can go ahead and search the envelope.” Defendant then signed a consent form and the police officers opened the envelope, found contraband, and arrested defendant.

Officer Abreu corroborated the testimony of Officer Kozaritz. He testified that before defendant opened his suitcase, defendant was advised that he did not have to open his luggage. After finding the attache case inside the suitcase, the officers did not again advise defendant of his right to refuse to open his attache case.

The State first contends that the police officers had reasonable suspicion to believe that contraband was concealed inside defendant’s manila envelope before the officers took possession of defendant’s manila envelope for a canine sniff. The State maintains that the initial encounter between defendant and the officers was not a seizure. In the alternative, the State, relying on Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, argues that even if the initial encounter were construed to be an investigatory stop, the officers had reasonable suspicion to believe that criminal activity was taking place at the time they approached defendant. The State maintains that the officers’ reasonable suspicion was based on the following observations: defendant arrived from a source city; he walked rapidly down the corridor towards the baggage area, bumping into a few people; he bounced a golf ball; he stopped and looked over his shoulder as he walked down the corridor; he looked around the baggage area; and he placed a phone call in which he stated that he was in Chicago at O’Hare Field, had a surprise, and could not talk because he was on a public phone. Furthermore, the State contends that the contents of defendant’s locked attache case and defendant’s inconsistent story regarding his manila envelope contributed to the officers’ reasonable suspicion that defendant was engaged in criminal activity.

Defendant cites People v. DeLisle (1982), 104 Ill. App. 3d 297, 432 N.E.2d 954, in support of the contention that the investigatory stop, which constituted a seizure, was not based on specific and articulable facts warranting the officers’ belief that defendant was engaged in criminal activity. In DeLisle, based on facts analogous to those in the case at bar, this court held that the officers did not have a reasonable suspicion to stop defendant. Defendant’s characteristics of being nervous, walking rapidly from the baggage area, arriving from a source city, and possessing limited luggage failed to distinguish him from other travelers so as to justify the officers’ stop. People v. DeLisle (1982), 104 Ill. App. 3d 297, 300, 432 N.E.2d 954, 957; see also People v. Mills (1983), 115 Ill. App. 3d 809, 450 N.E.2d 935.

After argument in the instant matter two other cases concerning the use of the so-called drug courier profile, airport stops and detentions, and warrantless searches of air passenger’s luggage were ruled upon by the United States Supreme Court in United States v. Place (1983), 462 U.S. ___, 77 L. Ed. 2d 110, 103 S. Ct. 2637, and Florida v. Royer (1983), 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319.

In United States v. Place, when respondent’s behavior aroused the suspicion of law enforcement officials as he waited in line at the Miami International Airport to purchase a ticket to New York, the officers approached respondent and requested and received identification. Respondent’s flight was about to depart and his luggage was subjected to a sniff test upon his arrival in New York. Thereafter, drug agents obtained a search warrant and upon opening the suitcase discovered cocaine. Some 90 minutes had lapsed since the seizure of the luggage and the court held that under the circumstances the seizure of respondent’s luggage violated the fourth amendment.

In Florida v. Royer the Florida Court of Appeals held that the detention of the defendant in an airport office, after State narcotics agents decided that he matched their drug courier profile, exceeded the limits of an allowable Terry stop. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) The Florida court went on to hold that the defendant’s subsequent consent to a search of his luggage was tainted by the illegal detention and that 65 pounds of marijuana found in his suitcase should have been suppressed as a fourth amendment violation. The United States Supreme Court agreed.

We are not constrained to prolong this initial discussion and the second issue raised of probable cause to search defendant’s manila envelope. There remains little doubt that in view of Place and Royer and the more recent cases by this court in People v. Steckhan (1983), 116 Ill. App. 3d 173, and People v. Kiser (1983), 113 Ill. App. 3d 501, 447 N.E.2d 858, wherein the facts are analogous to the facts in the instant case that the ruling and standards enunciated are controlling. In the cited cases the officers exceeded the bounds of any proper Terry stop and the seizures and searches were condemned. Here, the trial court found that the consent given by the defendant was obtained under duress and that there was no proof that a dog tore open the envelope. The court also indicated that there was no proof that the police officers involved were trained from experience to make an adjudication that the defendant fit the drug courier profile.

An appropriate inquiry here involves both a subjective and objective examination of whether the warrantless stop of the defendant was valid where the police officers admitted that they had no knowledge that any laws were being violated and when the officers have not specifically articulated any facts giving rise to a reasonable suspicion that a crime was being committed. The trial court by its ruling rejected the contention that a proper Terry stop took place accompanied by reasonable grounds of suspicion and probable cause and specifically held that the belated consent after the search of the locked attache case and the sealed manila envelope was obtained by duress and was therefore tainted and ineffective. See Florida v. Royer; People v. Kelly (1979), 76 Ill. App. 3d 80, 394 N.E.2d 739.

As to the propriety of a canine sniff, in United States v. Place the court declared:

“*** we conclude that when an officer’s observations lead him reasonably to believe that a traveler is carrying luggage that contains narcotics, the principles of Terry and its progeny would permit the officer to detain the luggage briefly to investigate the circumstances that aroused his suspicion, provided that the investigative detention is properly limited in scope.
The purpose for which respondent’s luggage was seized, of course, was to arrange its exposure to a narcotics detection dog ***.
*** A ‘canine sniff’ by a well-trained narcotics detection dog, however, does not require opening the luggage.” 462 U.S. ___, ___, 77 L. Ed. 2d 110, 120-21, 103 S. Ct. 2637, 2644.

A reviewing court will not disturb the trial court’s finding on a motion to suppress unless that finding is determined to be manifestly erroneous. (People v. Reynolds (1983), 94 Ill. 2d 160, 445 N.E.2d 766.) A review of the record in the instant case supports the finding that the defendant’s fourth amendment rights were violated.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

BUCKLEY, P.J., and McGLOON, J., concur.


author: JUSTICE SULLIVAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT GREEN, Defendant-Appellant.
    First District (5th Division)
    No. 82—1315
    Opinion filed September 23, 1983.

      James J. Doherty, Public Defender, of Chicago (Marilyn Martin, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and James J. Bigoness, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SULLIVAN

delivered the opinion of the court:

After a jury trial, defendant was convicted of murder and concealment of a homicidal death and sentenced to concurrent terms of 65 and 10 years. On appeal, he contends that (1) his sixth amendment right to cross-examine and impeach the State’s key witness was erroneously limited; (2) restriction of his attempts to rehabilitate his sole witness constituted reversible error; (3) he was denied a fair trial as a result of the prosecutor’s inflammatory comments in closing argument; and (4) the imposition of extended terms was improper.

At trial, Officer Barker testified that on October 21, 1981, during a neighborhood search for a missing child, he found the body of 13-month-old Steven Jones inside a green plastic trash bag in a garbage can. Laboratory tests run on the bag in which the body was found produced no identifiable fingerprints.

Dr. Robert J. Stein, who performed an autopsy, described various bruises, abrasions, and contusions to the head, face, and neck, but stated that there was no sign of significant external bleeding. He concluded that the cause of death was ligature strangulation in association with subdural hematoma. The witness stated that it was unlikely that any of the injuries could have been caused by an object, such as an iron, falling from a distance of five feet.

Steven Smith, the baby’s father, testified that when he last had the child for a visit, October 11, 1981, he noticed a bruise on the infant’s back. When shown photographs of the dead child, Smith stated that he had seen none of the injuries shown in them at the time of the baby’s last visit with him.

Dorothy Jones, the baby’s grandmother, who lived down the hallway from her daughter and defendant, testified that on October 20, 1981, she babysat for Steven in her apartment until 5:30 p.m., when her son Thomas took Steven back to defendant’s apartment. She observed no indication of injury to the baby that day. On cross-examination, she stated that defendant treated her, Aleisa and the baby with respect and that she never saw nor heard of him mistreating the child.

Thomas Jones, the 15-year-old uncle of Steven, testified that he took the baby back to defendant’s apartment at approximately 5:30 p.m. and that, as he was leaving, he heard defendant tell the baby, who was crying, to “shut up and lay down.”

Roxanna Hoskins testified that she had spent the afternoon at defendant’s apartment where she, Aleisa, defendant, and Willie Green drank beer and vodka and smoked marijuana. She and Aleisa had also taken sleeping pills, and when she left at 5:45 p.m., Aleisa was sleeping on the couch. At approximately 6:30 p.m., Roxanne returned to defendant’s apartment but received no response to her knocking. On cross-examination, she stated that she had not heard defendant tell the baby to shut up.

Aleisa Jones (Aleisa), Steven’s mother, corroborated the testimony of Roxanna Hoskins concerning the events of that afternoon and also stated that sometime after she fell asleep, defendant woke her to tell her the baby was back. She saw the infant lying on some pillows on the floor next to the couch. She did not hear him or see him move. Still later, defendant woke her a second time and told her that Steven had pulled an iron down from the cabinet onto his head but was “okay” and that he (defendant) had put a cold towel on the bump. Aleisa saw the baby lying in the same position as he had been in the first time she woke up; he was neither moving nor crying. Defendant awakened her a third time and asked whether she had taken the baby to her mother’s house. Aleisa got up, and when she couldn’t find the child she called the police.

On cross-examination, Aleisa stated that defendant had treated her and the baby well, had never abused either of them, and had only slapped the child once, on his hands, as a disciplinary action. She also stated that earlier in the afternoon, she had seen defendant and Willie Green fighting in front of the building and that once inside the apartment, they continued to argue but did not exchange blows. After telling them to “take it outside,” Willie left and she did not see him again until after the police arrived later that night.

Willie Green (Willie), defendant’s brother, testified for the State that he lived in the same building as defendant and that after Aleisa told them to take their argument outside, he returned to his apartment where he stayed until about 6:45 p.m. At that time, defendant came to his door and told him to come downstairs to smoke some “reefers.” When he arrived there, defendant opened the door and “passed me a plastic bag, garbage bag, and he said to take the bag to the garbage, not in the back of the building, away from the building on the other side.” The bag was green plastic and tied into a knot. Defendant did not tell him what was inside, and as he went down the front stairs, he met Maybell Stewart, with whom he conversed for two or three minutes. He then took the bag and set it in a can approximately 30 feet down the alley. On his return, as he approached defendant’s apartment, he saw the door closed and when he heard a loud argument inside he returned to his own apartment. A few hours later, Aleisa’s brother Thomas told him that the baby was missing and that the police were there. Willie went downstairs to defendant’s apartment, and when he asked him, “What was in the bag?” defendant responded, “The baby. Shush, don’t say nothin’.” On two prior occasions, Willie had seen defendant mistreat the baby. Once, defendant threw the baby to the floor, saying “Shut up you mother-__” The other time, defendant kicked the baby in the head, saying “I hate this mother-__He looks just like his damn daddy.”

On cross-examination, Willie denied that he disliked his brother and stated that he loved him despite the fact that they argued and fought often. On October 20, 1981, he and defendant had fought because he (Willie) told their sister about defendant abusing Steven.

Willie also testified that while the police were at defendant’s apartment that night, he did not tell them defendant had given him a bag to put in the garbage or that defendant later told him what was inside the bag. The following day he was arrested, taken to a police station, and told he was a suspect in this case. Although he denied being told that he could be charged with murder or that he was worried about being so charged, he was impeached by his preliminary hearing testimony to the contrary. Defense counsel also attempted to question Willie as to whether he was actually charged with murder and whether he was booked and fingerprinted prior to making the statement which implicated his brother, but the court sustained the State’s objections to this line of questioning on the grounds that there was no indictment or information against Willie. He then admitted that he was handcuffed to a wall for six hours, questioned at least three different times by two teams of detectives, transported to three different police stations, and that after taking a lie detector test the police told him he was hiding something and placed him in a lockup. The next morning, he summoned detectives and gave a written statement in which he told them that defendant had given him the bag and later told him the baby was inside the bag.

Willie could not recall the days or dates of the two incidents when he had seen defendant abuse the baby and admitted that no one else had been present. When defense counsel attempted to question Willie as to whether he mentioned both incidents in his statement, the court sustained an objection on the basis that it was not proper impeachment by omission since the written statement was in question and answer form and the witness could not be impeached by something which had not been asked of him.

On redirect examination, Willie testified that he was never charged with murder in this case but that, while in custody, he was worried about being charged with concealing information, and that the reason he withheld information was to protect his brother.

The State’s final witness was Maybell Stewart, who testified that shortly after 7 p.m. on October 20, 1981, she met Willie Green on the front stairs of his apartment building where she talked with him for a few minutes. He was carrying a closed, green plastic trash bag and seemed his “usual self.” As she left, she saw him walk toward the alley with the bag.

The defense presented only one witness — Bertha Jones — sister of both defendant and Willie Green, who testified that Willie never told her that defendant mistreated the baby. She also stated that during a telephone conversation with an assistant State’s Attorney, she told him that Willie had never spoken to her about the abuse incidents and she was not told that someone else was on the telephone line at that time. Sometime later, he called her again, and she reiterated that Willie had never told her that defendant had mistreated Steven.

On cross-examination, Bertha admitted that she had spoken to Aleisa in the hallway of the courthouse during the trial but denied that defendant had asked her to do so. She also denied saying, during the telephone conversation with the assistant State’s Attorney, that Willie may have said something about defendant mistreating the baby or that she tried to dissuade Willie from testifying by telling him that his testimony would send defendant to prison. Defense counsel’s objections to these questions were overruled.

On redirect examination, when defense counsel tried to question Bertha about her conversation with Aleisa in the courthouse hallway during the trial, the State’s objection on hearsay grounds was sustained.

On rebuttal, Investigator Ragonese testified that he was on the telephone line when the assistant State’s Attorney spoke with Bertha Jones, who, when asked whether Willie had ever told her about defendant abusing the baby, said she couldn’t remember because she had a bad memory but that he “might have.” Ragonese admitted, however, that he did not take notes while listening to this conversation and that he was relying on his recollection.

Opinion

Defendant first contends that erroneous rulings restricting the cross-examination and impeachment of Willie Green, the State’s key witness, violated his sixth amendment rights and denied him a fair trial.

He argues that this was a case based solely on circumstantial evidence and, in view of Willie’s original status as a prime suspect, the trial court erred in not permitting him to cross-examine Willie concerning the fact that he had been fingerprinted and photographed before giving a statement implicating him (defendant).

It is well settled that cross-examination is a matter of right (People v. Richmond (1980), 84 Ill. App. 3d 1017, 406 N.E.2d 135), and showing a witness’ bias, interest, or motives for testifying falsely is an accepted method of impeachment (People v. Kellas (1979), 72 Ill. App. 3d 445, 389 N.E.2d 1382). The accused may question a witness concerning any matters which would explain, modify, or discredit his direct testimony (People v. Barr (1972), 51 Ill. 2d 50, 280 N.E.2d 708), and the fact that a witness has been arrested or charged with a crime may be inquired into where it would reasonably tend to raise inferences that his testimony was influenced by pressures, either real or imagined, from the authorities (People v. Baptiste (1976), 37 Ill. App. 3d 808, 347 N.E.2d 92); however, a determination as to the manner and scope of cross-examination rests largely in the discretion of the trial court (People v. Coles (1979), 74 Ill. 2d 393, 385 N.E.2d 694), and absent a clear abuse of discretion resulting in manifest prejudice to the defendant, a reviewing court will not interfere with the trial court’s exercise thereof (People v. Jones (1979), 70 Ill. App. 3d 338, 387 N.E.2d 1010).

Here, the only questions not allowed were those concerning whether he had been photographed and fingerprinted prior to giving the implicating statement, and defendant argues that he should have been permitted to show through this questioning that Willie had a motive to give a false statement implicating defendant because he thought he might be charged with murder. However, considering Willie’s admission at the preliminary hearing that the police had told him he could be charged with murder, and testimony at trial that (a) he had been arrested, handcuffed to a wall for six hours, interrogated repeatedly, subjected to a lie detector test, and then placed in a lockup; and (b) he was worried about being charged with concealment of information, it appears that the jury knew that he was a suspect at the time he gave the statement, and thus we are of the belief that the refusal to allow the defense to bring out that he had been fingerprinted and photographed before giving the statement did not prejudice defendant.

Defendant also urges that under the doctrine of impeachment by omission, he should have been allowed to cross-examine Willie concerning the fact that in his statement Willie mentioned only one incident of violence by defendant against Steven in order to discredit Willie’s direct testimony and that he had witnessed two incidents of such violence.

A witness’ failure to state a particular fact under circumstances rendering it natural or probable that he would state such fact, if true, may be shown to discredit his testimony as to the fact. (People v. Henry (1970), 47 Ill. 2d 312, 265 N.E.2d 876.) Here, the written statement to which defendant refers was in question and answer form. After Willie stated, in response to the question of the assistant State’s Attorney that he had seen defendant hurt the baby before, he was asked, “And approximately how long ago was that incident?” Defendant answered, “About two weeks,” and he was not asked whether there was more than one incident. Under such circumstances in a question and answer statement, we do not believe that it would have been natural or probable for Willie to respond with information concerning a second incident about which he was not questioned.

Defendant next contends that he was denied a fair trial because he was twice restricted in attempts to rehabilitate Bertha Jones, his sole witness. The first instance concerned the State’s questioning of Bertha on cross-examination, as follows:

“Q: Have you spoken to Alicia [sic] on his [defendant’s] behalf?
A: Well I talked to her the other day when she was out there in the hallway.
Q: Well, didn’t Robert [defendant] ask you to talk to her?
A: No, he didn’t.
DEFENDANT GREEN: No I didn’t.”

On redirect, the following colloquy took place:

“Q: The State’s Attorney asked you if you ever talked to Alicia, Alicia [sic] Jones, is that correct?
A: Right.
Q: You have said that you talked to Alicia [sic] Jones out in the hallway?
A: For a few minutes.
Q: Tell the ladies and gentlemen of the jury what Alicia [sic] Jones said to you when you talked to her.”

When an objection to that question on grounds of hearsay was sustained, defense counsel asked no further questions of this witness and made no offer of proof as to what he believed the witness would have said in response to his question. An offer of proof is necessary where there is no other satisfactory indication as to the substance of evidence (Lewis v. Beckman (1978), 57 Ill. App. 3d 482, 373 N.E.2d 589), and the failure to do so is a waiver of any error in the exclusion of testimony (People v. Gordon (1980), 82 Ill. App. 3d 906, 403 N.E.2d 570).

Here, there was no offer of proof, and because the substance of what the witness would have answered is not otherwise indicated in the record, we are unable to determine whether defendant was prejudiced by the court’s ruling.

Defendant also asserts that the State improperly implied, without proof thereof, that defense witness Bertha Jones made prior inconsistent statements. The prosecutor asked her whether she had tried to dissuade Willie from testifying and whether she had told him that his testimony could send defendant to prison. She denied doing so, and the State thereafter did not offer evidence of those statements. Interrogation of this type which creates an innuendo unsupported by evidence is improper (People v. Burbank (1972), 53 Ill. 2d 261, 291 N.E.2d 161), and where it concerns a principal issue could be reversible error as being clearly prejudicial (People v. Morris (1979), 79 Ill. App. 3d 318, 398 N.E.2d 38), (an alleged confession). Here, however, the insinuations involved only collateral matter, which we do not believe could have contributed to the verdict of the jury and was not reversible error.

Defendant next contends that certain comments by the prosecutor during closing argument denied him a fair trial. Prosecutors may not resort to unfounded or inflammatory closing remarks (People v. Bryant (1983), 94 Ill. 2d 514, 447 N.E.2d 301) and, recently, we have been examining improper prosecutorial conduct with vigorous growing concern (see People v. Guyon (1983), 117 Ill. App. 3d 522). We note, however, that questions concerning such comments must be decided on the facts of each case (People v. Weathers (1975), 62 Ill. 2d 114, 338 N.E.2d 880), and in general, improper prosecutorial remarks “do not constitute reversible error unless they result in substantial prejudice to the accused” (People v. Baptist (1979), 76 Ill. 2d 19, 29, 389 N.E.2d 1200, 1205).

In asserting substantial prejudice, defendant first points to the following statement made by the prosecutor in final argument:

“Reasonable doubt is not an impossible burden, it’s a burden which we accept and we accept proudly. The people in this building are convicted of crimes beyond a reasonable doubt every day, a dozen or two dozen times a day, hundreds of times a week in this State and most of those cases come from this building. Our prisons are overflowing with people convicted beyond a reasonable doubt. It is not an impossible burden.”

Defendant argues that this statement improperly diluted the State’s burden of proof. While much of the quoted comment lacked record support and was thus improper, we note that it was held in Bryant that the prosecutor’s characterization of the State’s burden as “not unreasonable” and “one that is met every day” did not reduce the State’s burden of proof. So also, here, in the light of the overwhelming evidence against defendant and the fact that the jury was properly instructed not only as to the State’s burden of proof but also that

statements of counsel were to be disregarded if not based on the evidence, we do not believe that the remarks in question resulted in substantial prejudice to defendant.

Defendant also urges that the prosecutor’s references to him as "depraved” and “animal” and “the lowest form of human being” were inflammatory and prejudicial, having only the purpose of arousing the passion and hostility of the jury. We initially note that because defendant did not object to these comments and failed to raise any question concerning them in his post-trial motion, he has waived any impropriety for purposes of review. (People v. Lucas (1981), 88 Ill. 2d 245, 430 N.E.2d 1091.) Moreover, the language in question was used in context as follows: “[PJicture him [defendant] as he really is, the violent depraved baby killer that he really is,” and “there is no lower form of human being,” and “only a vicious animal is capable of doing to that child what was done.” Each of the comments was used in argument only once and, in view of the fact that the victim was the 13-month-old baby with evidence that defendant prior to the day of the homicide had thrown him to the floor and kicked him in the head; that the autopsy revealed numerous abrasions and contusions to the head, face, and neck; that the cause of death was ligature strangulation associated with subdural hematoma; and that the body was disposed of by placing it in a garbage can, it appears that the remarks were supported by the record and, in any event, in view of the overwhelming evidence of guilt,, we do not believe that they had any bearing on the jury’s verdict.

Turning then to the contention of defendant that extended-term sentences were improperly imposed, we initially note that section 5 — 5—3.2(b)(3)(i) of the Unified Code of Corrections (111. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2(b)(3)(i)) provides that an extended-term sentence may be imposed when a defendant is convicted of a felony committed against a person under 12 years of age at the time of the offense. The victim here was a 13-month-old child.

However, we agree with defendant that the extended-term sentence for the offense of concealment of a homicidal death was impermissible. In People v. Evans (1981), 87 Ill. 2d 77, 429 N.E.2d 520, our supreme court held it to be clear from the plain language of the statutes involved that an extended sentence should be imposed only on the most serious offense for which a defendant was convicted. See also People v. Walsh (1981), 101 Ill. App. 3d 1146, 428 N.E.2d 937, which followed Evans.

The State, however, urges us to reject the holdings in Evans and Walsh and accept the statutory interpretation of People v. Mims (1982), 111 Ill. App. 3d 814, 444 N.E.2d 684. Mims, relying upon an opinion in People v. Williams (April 16, 1982, No. 51870) (Williams I), found that extended-term sentences may be imposed in appropriate circumstances for different classes of offenses, even in those situations when the offenses are not the most serious for which an offender is convicted. It appears, however, that the opinion in Williams I was withdrawn when a rehearing was allowed in that case, and in the opinion subsequently filed (People v. Williams (1982), 93 Ill. 2d 309, 444 N.E.2d 136 (Williams II), no reference was made to the propriety of the extended sentences. Disagreeing with Mims, this court subsequently, in People v. Rowe (1983), 115 Ill. App. 3d 322, 329, 450 N.E.2d 804, 810, found that “[t]here is no language in the statute that authorizes an extended-term sentence for the class of the lesser offense of which defendant was convicted.” Since Williams I was withdrawn after the rehearing was granted, it cannot serve as a precedent (Tollman v. Eastern Illinois & Peoria R.R. Co. (1942), 379 Ill. 441, 449, 41 N.E.2d 537, 541), and because Williams II makes no reference to the extended-term sentence issue, it is our view that the reasoning of Evans, Walsh, and Rowe should be followed.

For the reasons stated, the conviction and sentence for murder is affirmed; the conviction for concealment of a homicidal death is affirmed, but the sentence thereon is reduced to a term of five years, the maximum permitted for the offense, which is a Class 3 felony.

Affirmed as modified.

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


author: PRESIDING JUSTICE BUCKLEY

text:
    VIOLANDA LOFENDO, Plaintiff and Petitioner-Appellee, v. PETER OZOG, Defendant and Respondent-Appellant.
    First District (1st Division)
    No. 82—2604
    Opinion filed September 26, 1983.

      Jacobs, Williams and Montgomery, Ltd., of Chicago (Barry L. Kroll, Byron L. Matten, and Lloyd E. Williams, Jr., of counsel), for appellant.
    Herbert E. Cleveland, of Wheeling, for appellee.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Defendant Peter Ozog appeals an order of the circuit court of Cook County granting plaintiff Violanda Lofendo relief pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401), formerly section 72 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 72). The order vacated a judgment dismissing with prejudice plaintiff’s complaint for personal injuries. The issue to be decided on review is whether the trial court erred in granting plaintiff relief under section 2 — 1401.

The record reflects as follows. On December 10, 1981, plaintiff filed a lawsuit against defendant seeking damages for personal injuries sustained in an automobile accident. After various pleadings were filed and certain discovery conducted, the parties agreed to compromise and settle plaintiff’s claim for $10,000. Pursuant to this agreement, plaintiff’s attorney drafted an order of dismissal, with prejudice, which was entered at a pretrial conference on August 11, 1982. A notation appears on the bottom of this dismissal order indicating that the sum of $10,000 was agreed upon by the parties.

The record discloses that plaintiff filed a motion to “Reinstate Cause” with the clerk of the circuit court on September 7, 1982. Simultaneously she filed a copy of a notice of motion directed to counsel for defendant, noticing them that the motion would be heard on September 8, 1982. Grounds for the relief sought were that plaintiff had determined the agreed upon amount of $10,000 was unacceptable and that she suffered from residual pain. Plaintiff apparently abandoned this motion since there is no record of court action upon the motion and an identical motion and notice were filed on September 21, 1982, at which time the trial judge entered a draft order entering the motion and continuing it to October 6,1982.

On October 6, 1982, a different trial judge denied the motion. Following the denial of the motion, plaintiff made an oral motion to present the motion to reinstate as a petition for relief from final judgment pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401). Defendant’s attorney, who was present at the hearing only in response to plaintiff’s motion to reinstate, objected to the form and sufficiency of plaintiff’s section 2— 1401 petition. Over this objection, the trial court granted plaintiff the relief she sought and the dismissal order of August 11, 1982, was vacated.

On appeal, defendant argues that the trial court erred in granting relief under section 2 — 1401 as a result of numerous procedural and substantive deficiencies in plaintiff’s petition for relief. We agree.

Section 2 — 1401 of the Code of Civil Procedure provides a statutory mechanism by which final orders or judgments may be vacated more than 30 days after their entry; that is, following the time when such order or judgment may no longer be reviewed or changed by the trial court. (Okumura v. Nisei Bowlium, Inc. (1976), 43 Ill. App. 3d 753, 357 N.E.2d 187; Ill. Rev. Stat. 1981, ch. 110, par. 2-1401(a).) A petition under this section is not a continuation of the original proceeding but a commencement of a new cause of action. (Campbell v. Kaczmarek (1976), 39 Ill. App. 3d 465, 468, 350 N.E.2d 97.) As such, a section 2 — 1401 petition constitutes the moving party’s pleading and, with other pleadings, it must be in writing, filed with the clerk of the court and made a part of the court record. Okumura v. Nisei Bowlium, Inc. (1976), 43 Ill. App. 3d 753, 755.

Section 2 — 1401(b) sets forth the following requirements for the petition:

“(b) The petition must be filed in the same proceeding in which the order or judgment was entered but is not a continuation thereof. The petition must be supported by affidavit or other appropriate showing as to matters not of record. All parties to the petition shall be notified as provided by rule.” Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401(b).

The rule referred to in the above section is Supreme Court Rule 106 (87 Ill. 2d R. 106), which provides:

“Notice of the filing of a petition under section 2 — 1401 of the Code of Civil Procedure for relief from a final judgment after 30 days from the entry thereof shall be given by the same methods provided in Rule 105 for the giving of notice of additional relief to parties in default.”

Supreme Court Rule 105, in turn, provides that the notice shall be directed to the party, and must be served either by summons, by prepaid certified or registered mail, or by publication. 87 Ill. 2d R. 105.

In the present case, plaintiff, in petitioning for section 2 — 1401 relief, failed to meet any of the above requirements. A petition seeking relief under this section was not filed with the clerk of the court and therefore was not part of the court record at the time such relief was granted. Plaintiff presented no “affidavit or other appropriate showing as to matters not of record.” Finally, there was no compliance with the notice requirements of Supreme Court Rules 105 and 106, and defendant therefore had no opportunity to prepare any legal or factual reply to plaintiff’s request for section 2 — 1401 relief.

In view of the foregoing deficiencies, the trial court failed to have before it a proper pleading upon which to grant section 2 — 1401 relief.

We next turn to the substantive inadequacies of plaintiff’s section 2 — 1401 petition. The grounds plaintiff asserted to vacate the judgment order of dismissal were that plaintiff, “after discussing the case with various members of her family decided that the amount offered in settlement was unacceptable.” The order granting section 2 — 1401 relief indicated that the basis for vacating the dismissal order was that plaintiff had “changed her mind” subsequent to the entry of the order. Such grounds clearly are not sufficient to justify section 2— 1401 relief.

Section 2 — 1401 constitutes an exception to the general rule that the trial court loses jurisdiction after 30 days, and this exception is a limited one. (Brockmeyer v. Duncan (1960), 18 Ill. 2d 502, 165 N.E.2d 294; Kelly v. Kelly (1982), 105 Ill. App. 3d 136, 434 N.E.2d 55.) The

purpose of this section is to enable a party to bring before the court rendering judgment matters of fact not appearing in the record, which, if known to the court at the time judgment was entered, would have prevented its rendition. (McKnelly v. McKnelly (1976), 38 Ill. App. 3d 637, 348 N.E.2d 500.) To obtain relief pursuant to this section, a party must set forth in his petition facts showing due diligence and the existence of a meritorious defense or claim. (M.L.C. Corp., Inc. v. Pallas (1978), 59 Ill. App. 3d 504, 375 N.E.2d 560.) A petition seeking relief from a final judgment or order under this section is not intended to relieve a party from the consequences of his or her own mistake or negligence. 59 Ill. App. 3d 504, 511.

Plaintiff in this case has failed to set forth the above-mentioned factual allegations required for relief pursuant to section 2 — 1401. Moreover, this court has previously asserted that a section 2 — 1401 petition is not intended as a remedy for a belated “change of mind,” as occurred in the case at bar. Kelly v. Kelly (1982), 105 Ill. App. 3d 136, 140, 434 N.E.2d 55.

Plaintiff, on appeal, argues that she is entitled to section 2— 1401 relief because the settlement agreement between the parties was merely tentative and not intended to be final. Our review of the record of the proceedings below fails to disclose any such intention by either party. Plaintiff, however, contends that the trial judge indicated at the time he entered the order of dismissal that he would vacate the order if the plaintiff did not accept the settlement which her attorney had made with defendant’s attorney. Such an indication does not appear in the order of dismissal which was drafted by plaintiff’s counsel. The dismissal order, on its face, appears absolute and contains no conditions. Defendant maintains that the settlement agreement was intended by both parties to be binding.

In support of her allegation that the agreement was merely conditional, plaintiff has included in her brief a document entitled a “Bystander’s Affidavit.” This document was signed by Judge Kenneth Cohen who entered the August 11, 1982, order of dismissal. The affidavit provides, in pertinent part,"that the court instructed the plaintiff’s attorney to enter a dismissal order subject to the approval of the plaintiff-client who was not present in the courtroom.

The affidavit was executed on April 25, 1982, more than eight months following the judgment order of dismissal, and was not properly incorporated as part of the record of the proceedings below pursuant to Supreme Court Rule 323 (87 Ill. 2d R. 323). Consequently, this affidavit cannot be considered by the court on review. We further find the use of such an affidavit to be improper; a trial judge may not change the unambiguous contents of the record by virtue of his personal nonrecord recollection of matters. See Hartgraves v. Don Cartage Co. (1976), 63 Ill. 2d 425, 348 N.E.2d 457; Frank v. Village of Barrington Hills (1982), 106 Ill. App. 3d 747, 436 N.E.2d 276; Pick v. Pick (1978), 58 Ill. App. 3d 357, 374 N.E.2d 689.

Moreover, Judge Cohen did not rule on plaintiff’s motion to reinstate when it was presented to him on September 21, 1982. Instead, he entered an order continuing the matter until October 6, 1982. On that date, Judge Edward Fiala denied plaintiff’s motion to reinstate and granted relief pursuant to section 2 — 1401. Judge Cohen properly should have heard the section 2 — 1401 petition since a petition pursuant to this section is required to be brought before the same judge who rendered the original judgment. Kilbride v. Kilbride (1965), 64 Ill. App. 2d 355, 212 N.E.2d 252; Schumacher v. Liesemeyer (1951), 343 Ill. App. 455, 99 N.E.2d 353.

We additionally note that plaintiff’s reliance on Thornberry v. Board of Education (1972), 8 Ill. App. 3d 351, 290 N.E.2d 360, and Vece v. De Biase (1964), 46 Ill. App. 2d 248, 197 N.E.2d 79, is misplaced. Both cases indicate that a compromise “is not considered final or concluded until *** a judgment has been entered.” (Thornberry v. Board of Education (1972), 8 Ill. App. 3d 351, 354; Vece v. De Biase (1964), 46 Ill. 2d 248, 252.) Here, not only was a judgment of dismissal entered but a post-trial motion seeking to vacate that judgment and reinstate plaintiff’s claim was denied. Plaintiff failed to assert in her post-trial motion that the settlement was supposedly tentative, nor did she appeal from the order denying her motion to vacate. If plaintiff believed that the denial of her motion to vacate was erroneous, her proper recourse was to appeal the denial. Section 2 — 1401 is not intended to provide a review of an order from which a party could have appealed within the time fixed by rule, and cannot be invoked as a substitute for a party’s right to appeal. See Lilly v. County of Cook (1978), 60 Ill. App. 3d 573, 377 N.E.2d 136.

In view of the procedural and substantive deficiencies in plaintiff’s request for relief under section 2 — 1401, we conclude that the trial court erred in vacating the order of dismissal pursuant to this section. Accordingly, the order granting plaintiff relief under section 2 — 1401 is reversed and the order of dismissal of August 11, 1982, is reinstated.

Reversed.

McGLOON and GOLDBERG, JJ., concur.


author: PRESIDING JUSTICE WILSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MARVIN SHLENSKY et al., Defendants-Appellees.
    First District (5th Division)
    No. 82—85
    Opinion filed September 23, 1983.
    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.
    Elliot Samuels, of Chicago, for appellee Marvin Shlensky.
    Sam Adam, of Chicago, for appellee Lawrence Lerner.
   PRESIDING JUSTICE WILSON

delivered the opinion of the court:

Following a bench trial (hereinafter referred to as the original trial), defendant Marvin Shlensky, a pharmacist, was acquitted of the offenses of illegal delivery of controlled substances and unauthorized possession of triplicate prescription blanks. Defendant Lawrence Lerner, a physician, testified at the original trial as a rebuttal witness for the State and also on Shlensky’s behalf. Approximately one year after the acquittal, Shlensky and Lerner were jointly indicted for: (a) perjury (Ill. Rev. Stat. 1979, ch. 38, par. 32 — 2(a)), based upon statements made while under oath during the original trial; (b) obstruction of justice (Ill. Rev. Stat. 1979, ch. 38, par. 31 — 4(a)), based upon their alleged attempts to conceal the delivery of controlled substances without a prescription; and (c) conspiracy (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 2(a)), based upon their agreement to knowingly furnish false information which tended to obstruct the prosecution of Shlensky. The trial court granted Shlensky’s motion to dismiss on collateral estoppel grounds and granted Lerner’s motion to dismiss on the ground that Lerner had been denied his right to due process in the original trial. The State appeals. For the following reasons, we affirm the trial court’s judgment as to Shlensky and reverse the judgment as to Lerner and remand the cause with instructions to proceed on the merits of the charges brought against Lerner only.

While the record before this court does not include a report of the proceedings of the original trial, it does contain the indictments filed against defendants in the present action which include quotations from Shlensky’s and Lerner’s testimony at the original trial upon which the charges of perjury, obstructing justice and conspiracy are predicated. Specifically, the testimony at issue concerns alleged deliveries of controlled substances made on November 26, 1975, and December 13, 1975, to Wilson Pierce, alias Bobby Wilson, an agent for the Illinois Department of Law Enforcement. At the original trial, Shlensky identified written prescriptions for a drug commonly known as Ritalin as those presented to him by Bobby Wilson on the respective dates and signed by Dr. Lerner. Subsequently, when called as a rebuttal witness by the State, Lerner corroborated Shlensky’s testimony by identifying the prescriptions as those written by him for Bobby Wilson on November 26, 1975, and December 13, 1975. The State followed Lerner’s rebuttal testimony with that of two impeachment witnesses who testified that the prescriptions in evidence could not have been written by Lerner on the dates in question. After the State rested its case, defendant Shlensky called Lerner to the stand to testify on Shlensky’s behalf, at which time Lemer attempted to rebut the State’s impeachment evidence and explain how the prescriptions could have been written on the dates indicated. Subsequently, the trial court acquitted Shlensky of all charges. In doing so, the court specifically commented on the lack of credibility of Wilson Pierce, the State’s main witness.

Approximately one year later, the State indicted Shlensky and Lerner for the offenses of perjury, obstructing justice and conspiracy, predicated on testimony given by each at the original trial. In response, Shlensky filed a motion to dismiss based on collateral estoppel and Lerner filed a motion to dismiss based upon collateral estoppel, entrapment and denial of procedural due process. In regard to Shlensky’s motion, the State argued that because the trial court’s finding in the original trial was limited to the credibility of the prosecution’s main witness, the issue of authenticity of prescriptions was never decided. Therefore, because proof that Shlensky perjured himself when testifying at the original trial regarding the authenticity issue would not be inconsistent with the judgment as to Pierce’s credibility entered at the original trial, the present action was not barred by the doctrine of collateral estoppel.

With respect to Lerner’s motion, the State argued that: (a) Lerner was properly called as a rebuttal witness to explain evidence used by defendant, and (b) entrapment is not recognized by Illinois statutory law as a ground for dismissal of an indictment. Thereafter, the trial court granted Shlensky’s motion on collateral estoppel grounds and Lerner’s motion on violation of due process grounds.

Opinion

We shall first address the State’s contention that because the trial court’s finding in the original trial was limited to the credibility of the prosecution’s main witness, the charge of perjury with respect to statements made by Shlensky at the original trial concerning authenticity of drug prescriptions is not barred by collateral estoppel.

Initially, we note that the very premise upon which the State bases its collateral estoppel argument is inaccurate. While it appears from that portion of the original trial’s proceedings which is before this court that the trial judge, in his findings of fact, emphasized the lack of credibility of the prosecution’s main witness, that emphasis does not metamorphose a finding of fact regarding the credibility of nonparty witness into a final judgment. Credibility was simply one factor considered by the trial court and articulated as a finding of fact. Because the trial court chose to state a primary reason for his judgment in no way limits the extent of the vital matter of the judgment which was Shlensky’s acquittal of charges for illegal possession and distribution of controlled substances. Accordingly, we concur with the following analysis made by the trial court regarding the State’s attempt to elevate a finding of fact to a final judgment:

“A judgment is broader and deeper than the State’s conception of a judgment. A judgment of acquittal is full and complete. It is a finding that the State has not prevailed in the litigation. *** The State cannot thereafter retrace its steps, prowl back into the litigation, pull out separate issues not referred to by a Judge in observations made at the time of rendering judgment and upon these selected issues build a new indictment.
If this were possible there would be no end to criminal litigation.”

Having determined that the issue of illegal possession and distribution of controlled substances by Shlensky was fully litigated in the original trial, we turn next to the issue of whether the doctrine of collateral estoppel bars a perjury prosecution for comments made during the original trial.

Both res judicata and collateral estoppel are corollaries of the Federal Constitution’s fifth amendment prohibition against subjecting a defendant to jeopardy twice for the same criminal actions. Res judicata refers to the extinguishment of a claim or cause of action once it has been fully litigated. (People v. Bone (1980), 82 Ill. 2d 282, 287, 412 N.E.2d 444.) Collateral estoppel, on the other hand, applies to a specific issue which has been fully litigated. (Ashe v. Swenson (1970), 397 U.S. 436, 443, 25 L. Ed. 2d 469, 475, 90 S. Ct. 1189, 1194.) An essential element to the application of collateral estoppel is the presence of a valid and final determination of an issue of ultimate fact. (People v. HipUns (1981), 97 Ill. App. 3d 174, 179, 423 N.E.2d 208.) In this regard, finality means that the potential for appellate review has been exhausted. (People v. Carmack (1982), 103 Ill. App. 3d 1027, 1036, 432 N.E.2d 282.) In applying the doctrine of collateral estoppel, courts are obliged to look at the record with “realism and rationality” in order to determine which factual questions have been decided. In this regard, the inquiry must be made within a practical framework and viewed with an eye to all the circumstances of the proceedings. (People v. Ward (1978), 72 Ill. 2d 379, 384, 381 N.E.2d 256.) In Ward, a recent Illinois Supreme Court decision dealing with collateral estoppel in the context of a perjury trial, the defendant was convicted of burglary, but the trial court granted a new trial on the ground that there was insufficient evidence to support the verdict of the jury. Although the burglary case was dismissed without a new trial, defendant was subsequently indicted for perjury based upon his testimony during the burglary trial. The supreme court found that the order granting a new trial necessarily entailed a determination that the defendant had not entered the building with intent to steal, and that proof that defendant had perjured himself would be inconsistent and contradictory to that determination. As a result, prosecution of defendant for perjury based upon his denial was barred by collateral estoppel.

In accordance with the principles governing application of the doctrine of collateral estoppel, we have no doubt that the trial court’s order of acquittal in the original trial necessarily entailed a determination that the State had not proved the charges brought against Shlensky beyond a reasonable doubt. This conclusion necessitates our further determination that proof that defendant Shlensky had perjured himself in the original trial would be “inconsistent and contradictory” to the acquittal. Thus, the indictments charging Shlensky with penury, obstructing justice and conspiracy must be construed as indirect attempts to relitigate the drug-related charges. Accordingly, we hold that defendant Shlensky’s prosecution for the pending charges is barred by operation of the doctrine of collateral estoppel and its statutory embodiment in section 3 — 4(b)(2) of the Criminal Code of 1961. Ill. Rev. Stat. 1979, ch. 38, par. 3-4(b)(2).

Next, fully cognizant of the fact that defendant Lerner did not file a brief with this court nor appear during oral argument, pursuant to First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493, we shall nevertheless proceed to address the State’s contention that defendant Lerner was not denied due process of law when the prosecution, knowing Lerner’s testimony might be false, called him as a rebuttal witness at the original trial.

Preliminarily, we recognize the principle frequently described as “elementary” that before an individual can be deprived of property or liberty, he shall have an opportunity to be heard on charges brought against him. This rule has universal application to all common law, chancery, and statutory proceedings. (Rhodes v. Anderson (1976), 39 Ill. App. 3d 208, 210, 349 N.E.2d 113.) As indicated, this constitutional principle can be invoked only by one who has had “charges brought against him.” If anything is truly elementary about the right to due process, it is the prerequisite that the person alleging denial of due process be a party to the action. In the case at bar, Lerner was not a party in the original action; he was merely a nonparty witness. Consequently, he lacks standing to assert a violation of due process rights in that action. While we agree with the trial court that the State’s use of Lerner as a rebuttal witness at the original trial was improper, such procedural impropriety regarding a nonparty witness does not rise to the level of a due process violation. See Chicago Land Clearance Com. v. Darrow (1957), 12 Ill. 2d 365, 369-70, 146 N.E.2d 1.

Regarding the State’s argument that Lerner was not entrapped into perjuring himself during the original trial, a review of the record indicates that the trial court did not dismiss the charges against Lerner on the basis of entrapment as the State would have us believe. Rather, the trial court stated:

“Doctor Lerner was not entrapped in the technical sense but he was decidedly ensnared.
* * *
Doctor Lerner has been denied due process of law as guaranteed him by our Constitutional doctrine.”

Clearly, the trial court recognized that the elements of entrapment had not been sufficiently established (see People v. Ricker (1970), 45 Ill. 2d 562, 572, 262 N.E.2d 456; Ill. Rev. Stat. 1979, ch. 38, par. 7-12) and, thus, resolved the issue on due process grounds. Because the record is void of any evidence that defendant Lerner was coerced by the prosecution into testifying as he did at the original trial, we concur with the trial court’s conclusion that Lerner was not entrapped. We further conclude that there is no evidence of a due process violation in the present case, and the trial court erred in dismissing the charges against defendant Lerner on that ground.

For the foregoing reasons, we affirm the judgment of the trial court as to defendant Shlensky and reverse the judgment as to defendant Lerner and remand the cause for a trial on the merits of the charges brought against defendant Lerner only.

Affirmed in part; reversed and remanded in part.

SULLIVAN and MEJDA, JJ., concur.

       Additionally, we note that defendant Lemer’s attempt to adopt the brief of defendant Shlensky was an exercise in futility as Shlensky’s collateral estoppel argument is not applicable to Lerner, a nonparty witness in the original action.


author: PRESIDING JUSTICE DOWNING

text:
    GEORGE POLITAKIS et al., Plaintiffs-Appellants, v. INLAND STEEL COMPANY, Defendant-Appellee.
    First District (2nd Division)
    No. 82—1579
    Opinion filed September 27, 1983.
    Richard G. French, of French, Rogers, Kezelis & Kominiarek, P.C., Barry D. Goldberg, of Goldberg and Goldberg, and John G. Phillips, all of Chicago, for appellants.
    Rooks, Pitts, Fullagar & Poust, of Chicago (John G. Poust and Wayne F. Plaza, of counsel), for appellee.
   PRESIDING JUSTICE DOWNING

delivered the opinion of the court:

Plaintiffs, George Politakis, Chris Tsahas and Tasso Baris, brought this suit against defendant, Inland Steel Company, seeking compensation for the personal injuries they sustained on March 23, 1976, when the scaffold on which they were painting collapsed at defendant’s mill in East Chicago, Indiana. Following a jury trial resulting in a verdict for defendant, plaintiffs raise these issues on appeal: (1) whether the trial court erred when it refused to give to the jury their instruction on res ipsa loquitur; (2) whether it was error for defense counsel to imply in closing argument that plaintiffs were negligent and caused the accident; and (3) whether it was error for defense counsel to state in closing argument that the incident was a pure accident.

The incident occurred in defendant’s building which is used to store large coils of steel and in which were located two cranes, identified as No. 5 and No. 6. Crane No. 6, 32 feet wide and 100 feet long, travels the length of the building in a north-south direction. It consists of an operator’s cab and a trolley, which runs in an east-west direction and from which a block and hook hang. A six-ton magnet, measuring 15 Vs inches high and 66 inches wide, can be hung from the hook.

Plaintiffs were employed as painters by Pangere & Logan, who had contracted to paint defendant’s equipment at the described location. On March 22, 1976, between 3 and 6 p.m., plaintiffs commenced erecting the scaffold to be used while painting crane No. 6. All of the equipment that was used in the scaffolding was supplied by Pangere & Logan. Pangere employees selected the method of erecting it and performed the work themselves.

The scaffold, which was supported by three cables, was erected by attaching the north cable with a choker *to the west wall of the building. The center cable was tied to the east side of the building and fastened to the west side by means of a choker. The choker was wrapped by plaintiffs around a square piece of metal on the west side of the building behind the crane runway beam. The cable continued along the west wall, was attached again to the structure, and then ran across the floor to the east wall to become the third cable. Devices called “come-alongs” were used to tighten the tension on the cables. Two wooden planks, weighing 100 pounds each, were hoisted on the cables and were approximately 30-35 feet off the ground.

During the night shift, one of defendant’s employees, Glendell Walls, used the No. 6 crane. He knew about plaintiffs’ rigging and while operating the crane from the cab, he received instructions from foreman David Comstock. Comstock testified that he had been on crane No. 6 in order to see how much space there was between the cable, block and magnet. Walls testified that Comstock told him to be careful about plaintiffs’ cables.

Following Comstock’s directions, Walls moved the trolley 12 to 15 feet east and then lowered the magnet to the floor. The magnet was detached and the hoist raised back up. Comstock testified that at no time did the magnet, or anything else, make contact with the center cable. At 6 a.m., plaintiffs began working on the scaffolding again. Twenty minutes later, the center cable broke and the scaffolding collapsed, severely injuring plaintiffs.

Metallurgical engineers on behalf of plaintiffs and defendant testified regarding the possible causes of the break in the choker cable. The choker has six strands and each strand is made up of 37 wires. Defendant’s expert, Norris Yonker, testified that the wire rope, when originally made, had a breaking strength of 3.2 tons and that its breaking strength is lowered when the rope is tightened or stretched. Yonker stated that a visual examination of the choker cable revealed severe corrosion of the internal wires, sharp bends at the fractured ends and wire down to a knife-edge. In his opinion, the failure to the cable was gradual and not instantaneous.

Plaintiffs’ expert, Lyle Jacobs, testified that the place where the break occurred on the choker cable was flattened and that there was abrasion or wearing away of the wires. Jacobs stated that in his opinion, although corrosion existed, it was minimal and did not contribute to the failure of the choker. He also stated that the breaking strength of the choker when manufactured was between 5 and 5I *3/i tons and that he believed that the choker was serviceable prior to March 22, 1976.

The trial court did not allow plaintiffs’ proffered instruction on the doctrine of res ipsa loquitur to be submitted to the jury. Upon the jury returning a verdict in favor of defendant, plaintiffs filed this appeal.

I

Plaintiffs’ primary contention in this appeal is that the trial court erred in refusing to instruct the jury as to the principle of res ipsa loquitur. The purpose of this doctrine is to allow proof of negligence by circumstantial evidence when the direct evidence of the cause of an accident is primarily within the knowledge and control of defendant. (Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill. 2d 446, 449, 207 N.E.2d 305.) To take advantage of the theory, a plaintiff must prove that he was injured: (1) in an occurrence which would not have occurred in the absence of negligence; (2) by an instrumentality or agency under the management or control of defendant; and (3) under circumstances which were not due to any voluntary act or negligence on the part of plaintiff. Whether the doctrine applies in a given case is a question of law which the trial court must in the first instance decide. It does not apply unless a duty of care is owed by defendant to plaintiff. (Spidle v. Steward (1980), 79 Ill. 2d 1, 5, 402 N.E.2d 216.) It must be noted in this case that although the trial court was applying Indiana law, both parties agree that Indiana law does not materially differ from Illinois law on this subject.

It is apparent that the trial court’s striking of defendant’s affirmative defense of contributory negligence satisfies the third element needed for the instruction. As to the first requirement, defendant urges that this is not a case where the incident would not or could not have occurred in the absence of negligence. The trial court ruled that plaintiffs were not guilty of negligence and the jury, by its verdict, found that defendant was likewise not guilty of negligence. Defendant urges that this outcome lends credence to the theory which it argued at trial that it is possible no one was negligent, and that the cable simply parted because it was stretched over a girder edge. We need not address this argument because we base our affirmance of the trial court’s ruling upon the inability of plaintiffs to prove the second element, which is control by defendant over the instrumentalities involved in the occurrence. Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill. 2d 446, 449.

Plaintiffs’ theory of recovery in this suit was that defendant was liable for their injuries because its employees caused the crane or its appurtenances to hit the center cable of the rigging, which resulted in the collapse of the scaffolding. Plaintiffs urge that the res ipsa inference of negligence is applicable to this situation because their rigging was in a safe condition when they left defendant’s mill at 6 p.m., and they had no control over, nor knowledge of, defendant’s acts which occurred between that time and the time they arrived the following morning. With the aid of the res ipsa instruction, plaintiffs contend, the jury could have inferred that defendant’s negligent acts damaged the cable and choker.

Here, the trial court heard differing accounts of the possible cause of the accident. Plaintiffs’ theory was that defendant’s employees’ negligent operation of the crane and its appurtenances during the night shift, while plaintiffs were not present, caused the accident; on the other hand, defendant presented evidence that its employees in no way touched plaintiffs’ scaffolding, and its expert suggested that it was the condition of the choker or its placement which could have caused the cable’s failure. The evidence established that the choker flattened and separated around the crane girder beam edge. The choker, cable and installation of same was under the control and management of plaintiffs. While we recognize that mere conflict in the evidence does not bar the use of the res ipsa inference (Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill. 2d 446, 449), we find that plaintiffs’ evidence was not sufficient to demonstrate that defendant did not exercise its duty of care toward plaintiffs. We agree with the trial court that based on the record, the evidence did not warrant the use of the res ipsa doctrine.

Plaintiffs strongly urge that the trial court’s denial of their instruction was inexplicable in view of the evidence and the recent holding in Lynch v. Precision Machine Shop, Ltd. (1982), 93 Ill. 2d 266, 443 N.E.2d 569. In that case, the supreme court no longer utilized a requirement of defendant’s exclusive control over the instrumentalities of the accident, but rather adopted the view that the term be flexible, with the key question being “ '*** whether the probable cause is one which the defendant was under a duty to the plaintiff to anticipate or guard against.’ ” (Lynch v. Precision Machine Shop, Ltd. (1982), 93 Ill. 2d 266, 273-74, quoting Restatement of Torts, Explanatory Notes, sec. 328D, comment g, at 161, and referring to Prosser, Torts sec. 39, at 219-20 (4th ed. 1971).) Plaintiffs claim that they showed that defendant had retained control of the building and premises where the accident happened; that it had a duty to inspect the premises initially at the start of plaintiffs’ work and also to reinspect it for safety conditions; and that its employees were under a duty to refrain from using the crane while plaintiffs were in the process of painting it. Therefore, they conclude, they were entitled to the res ipsa instruction. On the other hand, the rigging installed by plaintiffs was under their control, and it was the separation of the choker which caused the incident.

A review of case law on this subject reveals that the res ipsa inference of negligence is not to be based upon a mere possibility that an event caused the harm which occurred, if the facts indicate otherwise. (Johnson v. Burlington Northern, Inc. (1982), 107 Ill. App. 3d 130, 136, 437 N.E.2d 334, appeal denied (1982), 91 Ill. 2d 570.) Here, plaintiffs did not meet their burden of proof in establishing more than a possibility that it was defendant’s actions which caused the accident. This is not a case where one is able to positively identify which of the two instrumentalities caused the occurrence. (Contrast, e.g., Lynch v. Precision Machine Shop, Ltd. (1982), 93 Ill. 2d 266, 443 N.E.2d 569, where it was evident that the act of leaving a chisel and file in a gear box was the cause of the injuries.) At issue in the trial of this case was whether defendant’s employees struck plaintiffs’ rigging, or whether the choker weakened and separated for the reasons described by the metallurgical testimony. There is a requirement that even where negligence is beyond all doubt involved in an accident, “it is still necessary to bring it home to the defendant.” (Prosser, Torts sec. 39, at 218 (4th ed. 1971).) Prosser further states:

“All that is needed is evidence from which reasonable men can say that on the whole it is more likely that there was negligence associated with the cause of the event than that there was not. It is enough that the court cannot say that the jury could not reasonably come to that conclusion. Where no such balance of probabilities in favor of negligence can reasonably be found, res ipsa loquitur does not apply.” (Prosser, Torts sec. 39, at 218 (4th ed. 1971).)

Plaintiffs’ instruction stated: “THIRD: That the injuries were received from a crane which was under the defendant’s control or management.” Plaintiffs’ evidence was not strong enough to warrant such an instruction. To permit such an instruction would legally decide the issue of probable cause by permitting an inference against defendant, thereby diluting plaintiffs’ burden of proof. Plaintiffs’ control of the rigging destroys the inference of negligence which res ipsa permits. In the light of ordinary experience, the incident here does not give rise to an inference that someone must have been negligent. The trial court was thus correct in its refusal to give the instruction to the jury.

II

Plaintiffs urge that defendant committed prejudicial error in its closing argument. Based on our review of the record, we disagree.

A

Plaintiffs contend that it was prejudicial error for defense counsel to repeatedly raise the issue of contributory negligence during closing argument after the trial court had struck this affirmative defense. Plaintiffs acknowledge that defense counsel did not directly accuse plaintiffs of negligence or of causing their own injuries; nevertheless, the numerous unobjected to comments (such as, “I am not even saying it is the fault of the plaintiffs”), had an identical impact.

This case involved the issue of proximate cause and in the face of being accused of committing a negligent act which caused the accident, defense counsel argued to the jury defendant’s version of the proximate cause of the accident. Because this theory included the manner in which the cable had been attached, plaintiffs’ actions in stringing the cables would necessarily be discussed. We are not convinced from our review of the record that the comments of defense counsel, dispersed throughout a lengthy closing statement, had the effect claimed by plaintiffs. The jury was only instructed on a pure negligence theory, and was never told that plaintiffs’ possible contributory negligence would bar their recovery.

B

In regard to plaintiffs’ additional claim that defense counsel suggested that this occurrence was a pure accident, defendant notes that there is no standard jury instruction in either Illinois or Indiana to cover an unavoidable accident. Further, the comments to the Illinois Pattern Jury Instructions (IPI), Civil No. 12.03, Comment, at 74 (2d ed. 1971), suggest that the matter be left to argument of counsel. Again, we conclude that defense counsel was merely arguing his theory of proximate cause to the jury and plaintiffs were not prejudiced.

For the reasons stated above, we affirm the judgment of the circuit court of Cook County.

Affirmed.

BERLIN and HARTMAN, JJ., concur.

      A choker is a wire cable that is flexible and acts as an adjustable extension with a loop at each end. It is made of 3/s-inch woven steel. A shackle is used to close the choker.

      The rejected instruction reads as follows:
      “Under our law the plaintiffs, George Politakis, Chris Tasabas [sic] and Tasso Baris may attempt to prove in either of two ways that defendant, INLAND STEEL COMPANY, was negligent. They may prove either what defendant, INLAND STEEL COMPANY, actually did or did not do, or, on the other hand, they may attempt to prove the following propositions:
      FIRST: That the plaintiffs just before and at the time of the occurrence were using ordinary care for their own safety.
      SECOND: That the plaintiffs were injured.
      THIRD: That the injuries were received from a crane which was under the defendant’s control or management.
      FOURTH: That in the normal course of events, the injuries would not have occurred if the defendant had used ordinary care while the crane was under its control or management.
      If you find that each of these propositions has been proved, the law permits you to infer from them that the defendant was negligent with respect to the crane while it was under its control or management. If you do draw such an inference your verdict must be for the plaintiffs if any injuries proximately resulted. But if, on the other hand, you find that any of these propositions has not been proved, or if you find that the defendant used ordinary care for the safety of others in its management of the crane, then your verdict should be for the defendant.”