author: JUSTICE PERLIN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ISSAC JOHNSON, Defendant-Appellant.
    First District (2nd Division)
    No. 82—1370
    Opinion filed March 13, 1984.
    Rehearing denied April 10, 1984.

      Steven Clark and Gordon H. Berry, both of State Appellate Defender's Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Kevin Sweeney, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE PERLIN

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, Issac Johnson, defendant, was found guilty of unlawful restraint (Ill. Rev. Stat. 1981, ch. 38, par. 10 — 3) and murder (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1). He was sentenced to an extended six-year term for unlawful restraint and an extended 80-year term for murder, the sentences to run concurrently.

Defendant appeals, presenting the following issues for review: (1) whether the trial court erred in ordering defendant to remain present during jury selection; (2) whether the prosecutor’s comments to the jury during closing argument were improper; and (3) whether a proper foundation was laid for the admission of tape recordings of conversations made between defendant and police.

For the reasons hereinafter set forth, we affirm.

On the first day of trial, prior to the selection of a jury, defense counsel advised the trial court that defendant wished not to be present at voir dire because he considered himself to be improperly attired. The State argued that the defendant could not waive his right to be present. The trial court upheld the position of the State and ordered defendant to remain while the jury selection process proceeded. On all five subsequent days of trial the defendant wore appropriate clothing.

At trial, Dr. Stein, Chief Medical Examiner of Cook County, testified that his autopsy of the deceased showed the cause of death to be asphyxiation due to manual strangulation.

Luis Ortiz, who resides in the front building at 3338 North Southport, in Chicago (the murder occurred in the rear building at 3338 North Southport), testified: on July 15, 1981, the day of the murder, the defendant knocked on Ortiz’ door to inquire whether the Jackson family (defendant’s “wife” and “children”) resided there. He told defendant that the Jackson family did not live there. At a lineup held on July 18, 1981, Ortiz identified defendant as the man who came to his door.

Officer Prunicki, a dispatcher for the communications center of the Chicago police department, testified: on July 17, 1981, at approximately 6:28 p.m., he received a “911” call from a male caller who identified himself as Frank Coban and told him to send “a police over to 3338 North Southport” because “a girl had been murdered over there, they got her down in the basement.”

Police officer Nelson, also a dispatcher for the communications center, testified: on July 17, 1981, at approximately 10:28 p.m., he received a “911” call from an unidentified male caller who told him to “send a police car to 3338 North Southport. The back, rear. This girl named Juanita Jackson murdered a white girl there.”

Officers Prunicki and Nelson took no action in response to these calls.

Sergeant O’Connor testified: on July 18, 1981, at approximately 7:45 a.m., while on duty at Area 6 Police Headquarters, he received a call from a male caller who identified himself as Willie Lee. The caller stated “he was wanting to inform the police department of a dead body at 3338 North Southport.” Sergeant O’Connor and other officers proceeded to the rear building at 3338 North Southport where Juanita Jackson (defendant’s “wife”) and Renaldo Rounds resided. They were cooperative in permitting the officers to search the apartment. The police found the body of 15-year-old Christine Jordan in a large box in the basement.

Wesley Calhoun, a friend of the deceased, testified: on July 15, 1981, while visiting a friend at 3316 North Southport, several doors from the Jackson apartment, he saw defendant talking with Christine Jordan on the street. At the lineup held on July 18, 1981, he identified the defendant as the man he saw talking with Christine Jordan.

Juanita Jackson testified: she knew defendant for two-three years, at one time had lived with defendant and had a child as a result of that relationship. She notified the police that while cleaning her attic on July 27, 1981, 12 days after the murder, she found books and papers belonging to Christine Jordan. She listened to the “911” tape containing the calls received by Officers Prunicki and Nelson and identified the voice of the male caller on the “911” tape as that of defendant.

Officer Patterson, a latent print examiner who examined the books and papers found in Juanita Jackson’s attic, testified that one of the fingerprints taken off the books matched that of the defendant.

The State introduced defendant’s oral confession taken by Detective Kajari on July 18, 1981, following the lineup. Kajari testified to the following: defendant told him that he went to visit his “wife,” Juanita Jackson, on July 15, 1981, the day of the murder, in hopes of “getting back together” or to get his “children” back from her. Since there was no one in the Jackson apartment, he broke through a window and entered the apartment. Later that afternoon at approximately 4 p.m., he left to get a can of “pop” and met Christine Jordan on the street. He told her someone in the apartment wanted to speak with her and she went there with him. According to Kajari, defendant stated that inside the apartment he attempted to have intercourse with Ms. Jordan. She tried to fight off his efforts, and to prevent her from screaming, he strangled her.

Marie Whitehead, the landlady at 3338 North Southport, testified: on July 15, 1981, at approximately 5 p.m., she saw defendant coming down the stairs of the rear apartment at 3338 North Southport. She identified defendant in the lineup held at police headquarters as the man she saw coming down the stairs.

John Rimicci, an electronic maintenance technician employed by the Chicago police department, testified for the State regarding the recording process used when “911” emergency calls are received. Rimicci testified that during July 1981, the tape machines were in good working order and that a malfunction in a recorder would be immediately noticed by the user.

John Bittenbinder, a violent-crimes investigator for the Chicago police department, testified: on July 18, 1981, he went to the communications section of the Chicago police department and obtained tapes from the previous day’s “911” recordings. He then made a copy of the two “911” calls received by Officers Prunicki and Nelson.

Defense counsel objected to the introduction of the “911” tapes on the grounds that a proper foundation had not been laid. The State argued that a foundation had in fact been laid because the entire tape was not being offered; only the tape recordings of conversations between Officers Prunicki and Nelson and defendant were being offered into evidence, and these conversations had previously been authenticated in court by Officers Prunicki and Nelson.

The trial court agreed that the testimony of Officers Prunicki and Nelson laid a foundation for the admission of the tapes. The tape recordings of the “911” conversations made between defendant and police were admitted into evidence and played for the jury.

Defendant did not testify nor did the defense call any witnesses.

During closing argument, defense counsel objected to the State’s reading of excerpts written by the victim in one of her books. Defendant’s objection was overruled. Defense counsel also objected to the State’s vouching for the credibility of State’s witnesses and to the prosecutor’s expression of her opinion that defendant was guilty. These objections were sustained and the jury was instructed to disregard the prosecutor’s statements.

Based on the foregoing evidence, the trial court found defendant guilty of unlawful restraint and murder.

Defendant filed a timely notice of appeal.

I

Defendant initially contends that the trial court erred in compelling his presence at voir dire on the first day of trial. Defendant alleges that appearing in wrinkled, dirty clothes eroded his right to a presumption of innocence.

Prior to jury selection, the following exchange took place:

“[Defense]: We would like to have the defendant excused for today.
[Court]: Bring him out.
(Discussion was had off the record.)
[Court]: He has on a pair of maroon colored trousers, long trousers. He’s got shoes on and he has a red and black long sleeve shirt. He doesn’t have a belt.
[Defense]: Do you want to be out here when the jury comes out today or do you want to wait until tomorrow?
[Defendant]: That would be more better.
[Defense]: He can waive his appearance.
[Court]: Do you have a case on that?
[Defense]: I can cite cases in this building where the defendants didn’t come out for trial.
[Court]: Cook County law?
[Defense]: The FALN is the first case that comes to mind. They stayed in the back. They didn’t want to be there.
[State]: He is picking and choosing. He doesn’t want to be here today but he wants to be here tomorrow.
[Court]: I want him here. You can make that a matter of record.
[Defense]: I believe it is of record. We are objecting.
* * *
[Defense]: I just think it would be better if he was properly attired. His clothes are all dirty, they are wrinkled. He is waiving his right to be in front of the jurors today.
[State]: There is no such right they are referring to.”

Although at trial the State initially contended that a defendant cannot waive his right to be present at voir dire, on appeal the State agreed that in fact a defendant may knowingly and voluntarily waive his right to be present at trial. The State alleges that defendant’s response, “That would be more better” was unclear and ambiguous and did not constitute a waiver. The State contends, assuming arguendo that the trial court erred in ordering defendant to be present, such error was harmless.

Section 115 — 8 of the Code of Criminal Procedure (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 8) permits a defendant to waive his right to be present at trial.

Since it has been held that “defendant’s constitutional right to be personally present at all stages of the trial extends from arraignment to final disposition” (emphasis added), it is clear that the jury selection process is included. “Defendant’s right to be present at his criminal trial is conferred for his benefit and protection, but like other constitutional rights, it may be waived.” People v. Davis (1979), 69 Ill. App. 3d 548, 551, 388 N.E.2d 167, 169.

In People v. Redding (1976), 43 Ill. App. 3d 1024, 357 N.E.2d 1227, the court held that voir dire examination commenced in defendant’s presence can be completed where defendant is voluntarily absent.

Since voir dire constitutes a part of the trial, we conclude that the trial court erred in compelling defendant to remain present. The issue, then, is whether the error was harmless.

In In re Staley (1977), 67 Ill. 2d 33, 37, 364 N.E.2d 72, 73, the court held that “an accused has the right to stand trial ‘with the appearance, dignity, and self-respect of a free and innocent man.’ ” In Estelle v. Williams (1976), 425 U.S. 501, 48 L. Ed. 2d 126, 96 S. Ct. 1691, the court held that a trial court’s order compelling a defendant to stand trial in prison garb deprives the defendant of his presumption of innocence. However, where defendant raises no objection, his right not to stand trial in prison garb is waived.

In People v. Harlan (1979), 75 Ill. App. 3d 168, 393 N.E.2d 1203, where the jury viewed the defendant briefly in handcuffs, the defendant alleged that this violated his right to a presumption of innocence. The appellate court disagreed, however, holding that the brevity of the incident, coupled with the strength of the case against the defendant, “makes it highly unlikely that the jury was materially prejudiced by the minor episode involving handcuffs.”

In People v. Medley (1983), 111 Ill. App. 3d 444, 444 N.E.2d 269, where the defendant had ample opportunity to obtain civilian clothing before trial but failed to do so, the defendant’s appearance before the jury in jail clothing was found to be harmless error since the error did not contribute to defendant’s conviction.

In the instant case, we believe that witnesses’ testimony, defendant’s alleged confession, taped telephone recordings of defendant’s conversations with police and defendant’s fingerprint found on the victim’s book were sufficient evidence to support conviction. Moreover, defendant appeared in allegedly inappropriate clothing only on the first day of trial. During the remainder of the six-day trial he wore proper garb. Thus, we conclude that in the case sub judice the trial court’s error was harmless and did not contribute to defendant’s conviction.

II

The defendant next contends that during closing argument the prosecutor improperly made comments vouching for the credibility of State witnesses and expressed her personal opinion that defendant was guilty. These comments included:

“This man right here, he is a murderer and a killer and he told the police how he did it ***. When Mr. Fletcher [defense counsel] says he is not calling me a liar or Mr. Devlin [the second prosecutor], he is wrong because when he says I put on a liar, when he says I put on a police officer that is telling lies, I am vouching for that liar too. And that is not what I did. My license means more to me than that ***. I will tell you why Detective Kajari isn’t lying. He is the man that murdered that girl and he knows how he did it.”

The trial court sustained defense counsel’s objections to the prosecutor’s comments and instructed the jury to disregard these statements.

The State claims that the prosecutor’s comments made during closing argument were proper because they were either comments on the evidence or were in response to comments made by defense counsel in his closing argument.

There is no error in prosecution comments about a subject, “ ‘if that subject is proved either by direct evidence or is fairly inferable from facts and circumstances proved. An argument based upon the facts appearing in proof or on the legitimate inferences deducible therefrom is proper.’ ” People v. Jackson (1981), 100 Ill. App. 3d 318, 320, 426 N.E.2d 1132, 1135; People v. Garza (1981), 92 Ill. App. 3d 723, 415 N.E.2d 1328.

In the instant case, the prosecution’s comments affirming the veracity of Detective Kajari’s testimony were invited by defense counsel’s attack on the credibility of Kajari’s testimony. A prosecutor’s argument is proper comment if it is invited by defense counsel’s remarks. People v. Medley (1983), 111 Ill. App. 3d 444, 444 N.E.2d 269; People v. Olejniczak (1979), 73 Ill. App. 3d 112, 390 N.E.2d 1339; People v. Mitchell (1975), 35 Ill. App. 3d 151, 341 N.E.2d 153.

Defendant also contends that the reading by prosecutor during closing argument of notations written by the victim in one of her books was improper. The prosecutor read the following:

“Homicide; premeditated homicide; reasonable; reasonable doubt; evidence; testimony; proof; accurate; acquittal; defendant; prosecution; verdict.”

Defense counsel objected to this reading on the grounds that such statements allegedly “emphasize the sufferings of the victim and family.” The trial court overruled defense counsel’s objections.

In People v. Mahon (1979), 77 Ill. App. 3d 413, 395 N.E.2d 950, where the prosecutor questioned an X ray of the decedent’s skull as if it were a witness, his conduct was found to be an improper effort to arouse the sympathies and passion of the jury. Though these statements were held to be improper, they were found to be harmless error in view of the overwhelming evidence against the defendant.

The evidence against defendant in the instant case consisted of testimony by witnesses who placed him at 3338 North Southport (the location of the murder) on the day of the murder and saw him talking with the victim; defendant’s confession consistent with the autopsy report (death due to manual strangulation); a fingerprint of defendant found on the victim’s book; and taped telephone recordings of conversations between the police and defendant.

Although the prosecutor’s reading of the victim’s written notes may have been improvident, her remarks were not so prejudicial that they constituted a material fact in defendant’s conviction or resulted in substantial prejudice. (People v. Panczko (1980), 86 Ill. App. 3d 409, 407 N.E.2d 988; People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200; People v. Jackson (1981), 100 Ill. App. 3d 318, 426 N.E.2d 1132.) We do not believe that the verdict would have been otherwise had these remarks not been made. People v. Belton (1982), 105 Ill. App. 3d 10, 433 N.E.2d 1119.

Further, the court instructed the jury to disregard the prosecution’s remarks, directed it to consider only the evidence presented and advised it that closing arguments are not evidence. (Elinois Pattern Jury Instructions, Criminal, Nos. 1.01 and 1.03 (2d ed. 1981).) In many cases such instructions have been held to cure prejudice from a prosecutor’s improper remarks in closing argument. People v. Baptist; People v. Mahon (1979), 77 Ill. App. 3d 413, 395 N.E.2d 950.

Also, during closing argument, the State commented on the sufferings of the victim’s family:

“I didn’t hear much talk from Mr. Fletcher [defense counsel] about the victim in this case.
Well, these papers and these books and this picture and that box are all that is left of that girl, Christine Jordan. That is all that is left of her. That is all that is left for her parents who are out there.”

No objection was made at trial to these statements. As a general rule, a challenged remark that was not objected to at trial is considered to be waived and cannot be raised for the first time on appeal. People v. Bloodworth (1979), 68 Ill. App. 3d 341, 385 N.E.2d 904.

III

Defendant further contends that a proper foundation was not laid for the admission of two tape recordings (People’s exhibits Nos. 26 and 27) made by Detective Bittenbinder because the voices on the tapes were allegedly not identified, the recording machine was not shown to be in proper working condition, and the competency of the operator was not established.

The State responds that a proper foundation was laid: the testimony of Officers Prunicki and Nelson and of Juanita Jackson established the identity of the voices on the tapes; the testimony of Rimicci, the electronic maintenance technician, established the capability of the machines recording “911” calls; and the testimony of Rimicci and Detective Bittenbinder establishing the competency of the operator (Detective Bittenbinder) who reproduced the calls. The trial court agreed that a proper foundation was laid, and the tapes were admitted into evidence.

Sound recordings, either on wire or tape, which are otherwise competent, material and relevant, are admissible into evidence if a proper foundation has been established to assure the authenticity and reliability of the recording. A proper foundation for the admission of a sound recording is made when a party to the conversation testifies to the accuracy of the recording and the defendant makes no claim of any changes or deletions in the recordings. People v. McCommon (1979), 79 Ill. App. 3d 853, 399 N.E.2d 224.

Officer Prunidd testified People’s exhibit No. 27 contained a true and accurate recording of the conversation he had with a male caller on July 17, 1981, and that there had been no changes or deletions in the tape. Officer Nelson testified People’s exhibit No. 26 was a true and accurate recording of the conversation he had with a male caller on July 17, 1981, and that no changes or deletions in the tape were made. Juanita Jackson identified the voice of the caller on the tape as that of defendant.

We conclude that there was a sufficient foundation for admission of the “911” tapes, and the trial court did not err in admitting these tapes into evidence.

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

Affirmed.

HARTMAN, P.J., and DOWNING, J., concur.

      In defense counsel’s brief Juanita Jackson is referred to as defendant’s “wife.” In the State’s brief, Juanita Jackson is referred to interchangeably as his “wife” or “ex-wife.”

      At no time did Ms. Jackson testify that she was defendant’s “ex-wife” or had more than one child with him.


source: Caselaw Access Project

author: PRESIDING JUSTICE HARTMAN

license: Public Domain

text:
    RONALD SCHLOBOHM, Plaintiff-Appellant, v. THE POLICE BOARD OF THE CITY OF CHICAGO et al., Defendants-Appellees.
    First District (2nd Division)
    No. 83—34
    Opinion filed March 13, 1984.

      Donald T. Bertucci, of Chicago, for appellant.
    James D. Montgomery, Acting Corporation Counsel, of Chicago (Jerome A. Siegan and Frank W. Nagorka, Assistant Corporation Counsel, of counsel), for appellees.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

After a hearing, the Police Board of the city of Chicago (Board) suspended Ronald Schlobohm, a Chicago police officer, for 2½ years for violating departmental rules. Schlobohm’s action for administrative review of the Board’s decision was dismissed on the Board’s motion. Schlobohm appeals.

The order from which the appeal is taken is a dismissal based upon procedural grounds and the sole issue to be considered on appeal is whether the 35-day administrative review filing requirement (Ill. Rev. Stat. 1981, ch. 110, par. 267) was properly applied in this case.

On June 8, 1979, Schlobohm was notified of six charges placed against him and that he was suspended pending the Board’s hearing. The hearings began on August 4, 1981, during which police officers testified with respect to the merits of the charges. At the end of the testimony, the parties presented a stipulation to the hearing officer. In the stipulation, the superintendent of police withdrew certain charges; Schlobohm admitted certain others; and the parties stipulated to what certain other testimony would reveal. The parties also produced, as a joint exhibit, all of Schlobohm’s honorable mention certifications.

In a written decision dated March 11, 1982, the Board found Schlobohm guilty of two of the charges, suspending him from June 8, 1979, the date of the prehearing suspension, to December 8, 1981. The Board made no findings regarding the remaining charges. The superintendent of police acknowledged receipt of the decision on March 11,1982.

According to Schlobohm’s affidavit, he received a post office notice of attempted delivery of a “registered” letter on March 19, 1982, on which date he went to the Norwood Park station and retrieved the letter. It contained the Board’s decision. He contacted his attorney on March 22, 1982, and, in response to the latter’s question, advised him that the envelope bore a postmark of March 17, 1982. Neither Schlobohm nor his counsel ever produced the envelope. Schlobohm’s attorney filed a complaint for administrative review on April 21, 1982, based upon the supposition that the decision was mailed on March 17, 1982.

The Board claimed it deposited its decision in the United States mail on March 15, 1982, contending that Schlobohm’s complaint should have been filed by April 19, 1982. It filed a motion to dismiss for lack of jurisdiction because the complaint was not filed within the 35-day period allowed by the Administrative Review Act (Ill. Rev. Stat. 1981, ch. 110, par. 267). The Board’s motion was supported by the affidavit of the Board’s chief clerk to the effect that she: addressed the envelope to Schlobohm on March 15, 1982; inserted the Board’s findings and decision therein and sealed it on that date; prepared the certified mail return receipt and affixed it to the envelope; and deposited it in the police department mail room at 1121 South State Street, Chicago, on March 15, 1982. A police officer assigned to that mail room averred by affidavit that he deposited the letter in the United States mail on March 15, 1982. A third affidavit was later filed by the Board in support of its motion which verified the accuracy of an exhibit attached which consisted of a United States Post Office acceptance of registered and certified mail, among other types of mail. The exhibit shows that mail receipted for by personnel of the United States Post Office on March 15, 1982, included 14 certified letters, showing names, addresses and fees, the seventh one of which was a police board letter addressed to Schlobohm. The date of receipt for mailing of these 14 letters was shown as March 15,1982.

Schlobohm’s affidavit claimed that he had no knowledge of the March 15, 1982, mailing date. He stated the envelope did not contain a dated cover letter. Other evidence revealed that one side of the certified letter’s receipt card contained the phrase “Schlobohm, #1078, Findings, 3-15-82.” Schlobohm maintained, however, that this phrase was concealed from him because the receipt card was taped onto the envelope, with the phrase side face down and was removed and retained by a post office employee.

The circuit court first denied the motion to dismiss, apparently because of the confusion surrounding the mailing date. During the course of the hearing, however, the court reversed itself and granted the motion to dismiss, concluding that it did not have jurisdiction to review the Board’s decision by reason of the late filing.

Section 4 of the Administrative Review Act (Ill. Rev. Stat. 1981, ch. 110, par. 267) provided that a party had 35 days, from the date a final administrative decision was served on him, in which to commence an action to review that decision. The method of service of the decision shall be “as provided in the Act governing the procedure ***, but if no method is provided *** when personally delivered or when deposited in the United States mail ***.” (Ill. Rev. Stat. 1981, ch. 110, par. 267.) The Police Rules and Regulations of the city of Chicago, which govern procedure in such actions, provides for a method of service of the charges but makes no provision for service of the Board’s decision so that the Administrative Review Act applies. Since service in this case was not personally made, under the Act it was served when deposited in the United States mails. (Cox v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 399, 451 N.E.2d 842; Thompson v. Illinois Civil Service Com. (1978), 63 Ill. App. 3d 153, 379 N.E.2d 655.) The language of section 4 makes no exception for certified or registered mail.

Schlobohm maintains that he has fulfilled the requirements of the statute since his complaint for administrative review was filed on April 21,1982, the 35th day prescribed by section 4 as calculated from March 17, 1982, the alleged postmarked date on the envelope. He asserts that because there was no dated cover letter in the envelope or a date on the return receipt card taped to the envelope visible to him, he had no knowledge of the March 15, 1982, mailing date and it was unfair to calculate the 35-day period from March 15,1982.

In a bench trial it is within the province of the circuit court to resolve inconsistencies and conflicts. A court of review will not substitute its judgment on these matters unless the findings are against the manifest weight of the evidence. (Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 356, 226 N.E.2d 624; MBL (USA) Corp. v. Diekman (1983), 112 Ill. App. 3d 229, 235, 445 N.E.2d 418.) If the evidence before the trial court is documentary in nature, as in this case, however, a reviewing court is not bound by the circuit court’s findings and may reach an independent decision on the facts. Delasky v. Village of Hinsdale (1982), 109 Ill. App. 3d 976, 980, 441 N.E.2d 367; Northern Trust Co. v. Tarre (1980), 83 Ill. App. 3d 684, 690, 404 N.E.2d 882, rev’d on other grounds (1981), 86 Ill. 2d 441.

A postmark placed by postal authorities on the envelope of a letter is some evidence that the letter was not placed with the post office until the day shown on the postmark (In re Estate of Powell (1945), 63 Nev. 19, 24, 158 P.2d 545, 547); however, no conclusive presumption is raised as to the actual date of mailing by virtue of the postmark alone (Shelburne Falls National Bank v. Townsley (1869), 102 Mass. 177; 29 Am. Jur. 2d Evidence sec. 193 (1967); 30 Am. Jur. 2d Evidence sec. 1117 (1967); Annot, 25 A.L.R. 9, 21 (1923)). In the present case, however, the envelope bearing the alleged postmark was itself never produced. The only postmarked document submitted in evidence relates to receipt by Schlobohm of the certified letter from the Norwood Park station on March 19, 1982. The sole evidence of the alleged postmark date on the envelope therefor came from Schlobohm’s affidavit. Countervailing evidence submitted by the Board, aside from the certified mail receipt card, included a copy of a United States mail form signed by a post office employee showing that the Board’s decision, addressed to Schlobohm, was received for mailing by the United States Post Office on March 15, 1982. Also submitted were affidavits of the Board’s chief clerk that she placed the Board’s decision in the envelope addressed to Schlobohm, sealed it and placed it in the mail room, and of the officer who delivered the envelope to the post office, both indicating March 15,1982, as the date of mailing.

Schlobohm insists that he had no way of knowing when the Board’s letter was placed in the mail, particularly since the certified mail receipt card which he signed on March 19, 1982, was taped face down on the envelope and only this portion of the card showed the date of March 15, 1982. Another date of record shown by Schlobohm’s own documentary submission was March 11, 1982, the date of the Board’s decision, and the date of the police superintendent’s receipt thereof. The evidence also showed that Schlobohm retrieved the letter from the Norwood Park station on March 19,1982, only after being notified that the mail was being held for him at the Norwood Park station. The foregoing series of dates, extending from March 11, 1982, to March 19, 1982, should have given Schlobohm, represented by counsel throughout this period, reason to have ascertained the date of mailing from the Board itself, if necessary, in order to protect his rights. The complaint, a brief three-page document containing usual and ordinary allegations necessary to administrative review, then could have been filed well within the 35-day period allowed by section 4.

The 35-day statutory period for filing a complaint for administrative review has been deemed jurisdictional in Illinois. (Pearce Hospital Foundation v. Illinois Public Aid Com. (1958), 15 Ill. 2d 301, 154 N.E.2d 691; Thompson v. Illinois Civil Service Com. (1978), 63 Ill. App. 3d 153, 379 N.E.2d 655; Varnes v. Dougherty (1976), 39 Ill. App. 3d 476, 350 N.E.2d 6, appeal denied (1976), 63 Ill. 2d 564.) The circuit court’s conclusion that it lacked jurisdiction to review the Board’s decision was supported by sufficient evidence and applicable law; it therefore cannot be disturbed.

Affirmed.

STAMOS and DOWNING, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. AARON STEWART, Defendant-Appellant.
    First District (2nd Division)
    No. 82—2120
    Opinion filed March 13, 1984.

      Steven Clark and Barbara Kamm, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Jack M. Bailey, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE PERLIN

delivered the opinion of the court:

Defendant, Aaron Stewart, following a jury trial in the circuit court of Cook County, was convicted of two counts of attempt murder (Ill. Rev. Stat. 1981, ch. 38, pars. 8 — 4, 9 — 1), aggravated battery (111. Rev. Stat. 1981, ch. 38, par. 12 — 4), armed violence (Ill. Rev. Stat. 1981, ch. 38, par. 33A — 2) and unlawful use of weapons (Ill. Rev. Stat. 1981, ch. 38, par. 24 — 1). He was sentenced to 30 years’ imprisonment for one attempt murder, 15 years for the second, and three years for unlawful use of weapons; the sentences to run concurrently. The convictions for armed violence and aggravated battery were merged into the attempt murder convictions.

On appeal defendant contends (1) the trial court erred in admitting the victim’s bloody clothing into evidence; (2) the court erred in admitting into evidence testimony regarding the nature and extent of the victim’s injuries and medical treatment; (3) he was denied the effective assistance of counsel when his attorney failed to call several witnesses to testify in support of his intoxication defense and when his attorney allegedly “abdicated” defendant’s defense and “admitted” his guilt during closing argument and (4) because defendant lacked the requisite mental states required to prove the offenses charged, he was not proven guilty beyond a reasonable doubt.

At trial the State called Carol Jackson who testified: on June 19, 1981, she was in a pizza parlor on 61st Street (near King Drive) in Chicago with a friend. There were approximately three other male patrons in the parlor. Defendant entered the parlor and spoke with two of the other customers, left, and returned a minute or two later carrying a shotgun. Defendant then walked out the door. He was not swaying and had no difficulty in talking or walking. She subsequently identified defendant in a lineup.

On cross-examination Ms. Jackson denied telling a defense investigator that while in the pizza parlor defendant was “ranting and raving” and that he was not acting in a rational way.

Police officers William Phillippo and Eugene Domuret each testified that on June 19, 1981, they were in uniform and responded to a reported disturbance at 6100 South King Drive (near the pizza parlor) at about 2:50 a.m. While talking to the complainant, they heard noises sounding like two gunshots. They called for assistance and then walked toward the source of the noises. They saw a man holding a sawed-off shotgun standing in front of a pizza parlor at 352 East 61st Street. They identified defendant as the man with the gun.

The gunman entered the pizza parlor and exited again. Domuret yelled “stop, police.” The gunman crouched behind a car, stood up and fired the shotgun. Phillippo was struck and fell; blood “poured” from his head, ears and chest. The gunman ran some 15 feet and fired again. No one was hit. Domuret fired a shot at the gunman. The gunman fired again. Domuret then went to Phillippo’s aid.

After Phillippo was taken to the hospital, Domuret went to the pizza parlor, questioned the patrons and searched them for weapons. He found four spent shells in front of the pizza parlor.

Police officer Robert Perón testified that on the night in question he observed a black male move across the roof of a building in the vicinity of the incident. He identified defendant as that person. Defendant was sitting on the roof, dangling his feet over the side of the building. He was not wearing shoes or socks. When ordered to come down, he slid down the chain of a sign on the building and then dropped.approximately 12 feet to the ground. He was arrested.

Robert Reese, a mobile lab technician with the police department, testified that he was given some shotgun shells at the scene of the crime for analysis. From the roof of a building adjoining the one where defendant was discovered, he recovered a sawed-off shotgun with a live round in it.

Officer Lomoro of the Chicago Crime Lab division testified that he examined the shotgun and shells recovered and determined that two of the shells positively were fired from the recovered shotgun. He could not make a positive identification of the remaining shells.

Officer Phillippo testified regarding his hospitalization, treatment and therapy.

For the defendant, Carol Jackson testified that in 1981 she was placed on court supervision for solicitation for prostitution. She understood that her supervision could be revoked and she could be jailed if she was charged with other offenses while on supervision. On cross-examination she stated she had not been threatened by the State or coerced to testify.

Leroy Peters testified that at the time of the shooting, defendant and his girl friend had been living at Peters’ apartment for about three months. In May of 1981 defendant had been having trouble with his girl friend and began drinking. On the day before the shooting, Peters, defendant and defendant’s girl friend were drinking heavily. At about 2 a.m. (approximately 24 hours before the shooting) Peters had ordered defendant out of his home. Defendant left and, according to Peters, was “lit, he was pretty high” and “drunk” at the time.

David Moriarity, an investigator for the public defender’s office, testified that he had spoken to Carol Jackson about this incident, and she had told him defendant was “crazy, not rational” and “ranting and raving” while at the pizza parlor.

After closing arguments, the jury returned the aforementioned guilty verdicts.

Defendant contends the trial court erred in admitting into evidence Officer Phillippo’s bloody clothing and his testimony regarding the nature and extent of the injuries he suffered, the resulting medical treatment and the therapy he received for them. Defendant alleges this evidence was highly prejudicial and inflammatory as well as immaterial to any issue presented. We disagree.

Defendant was charged, inter alia, with aggravated battery. One element of that charge is that the accused “*** causes great bodily harm, or permanent disability or disfigurement ***.” (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 4(a).) In prosecutions for aggravated battery, proof of the injury inflicted is an “essential element” of the case. People v. Nard (1975), 32 Ill. App. 3d 634, 335 N.E.2d 790. See also People v. Hearan (1976), 37 Ill. App. 3d 206, 345 N.E.2d 733.

It is recognized that if evidence is relevant and otherwise admissible, it will not be excluded even where it may be prejudicial. (People v. Calderon (1981), 98 Ill. App. 3d 657, 424 N.E.2d 671.) A trial court is granted wide discretion in determining whether the probative value of gruesome or inflammatory evidence outweighs its potentially prejudicial effect. (People v. Outlaw (1979), 75 Ill. App. 3d 626, 394 N.E.2d 541.) The evidence here complained of was relevant to the crime charged. We find the court did not err in admitting into evidence the officer’s clothing nor his testimony regarding his injuries and treatment.

Defendant next urges that he was not proven guilty beyond a reasonable doubt of attempted murder, armed violence or aggravated battery because due to his intoxication he did not possess the intent required for these offenses.

With regard to the aggravated battery charges and the armed violence charge predicated thereon, the State was required to prove that defendant acted “intentionally or knowingly.” (Ill. Rev. Stat. 1981, ch. 38, pars. 12 — 3, 12 — 4, 33A — 2.) As to the attempt murder charges and the armed violence counts predicated thereon, the State was required to prove defendant “*** intends to kill or do great bodily harm *** or knows that such acts will cause death ***.” Ill. Rev. Stat. 1981, ch. 38, pars. 9 — 1(1), 33A — 2.

Voluntary intoxication is a defense to specific intent crimes; in order to raise this defense, however, the accused must show “that his intoxication was so extreme as to suspend all reason.” (People v. Moon (1982), 107 Ill. App. 3d 568, 572, 437 N.E.2d 823.) Merely being drunk is insufficient to create a defense of intoxication. People v. Williams (1973), 14 Ill. App. 3d 789, 303 N.E.2d 585.

Here, the only evidence of defendant’s drinking was testimony that he had been drinking heavily some 25 hours before the shooting. On the other hand, the State’s witnesses testified that the defendant demonstrated physical dexterity including aiming a gun, ducking behind cars, running, climbing and sliding down to the street from a rooftop.

The jury was properly instructed regarding the intoxication defense. It is within the jury’s province to determine whether defendant was so intoxicated as to be incapable of forming the requisite intent. Their rejection of this defense was not against the manifest weight of the evidence and should not be reversed. People v. Gross (1977), 52 Ill. App. 3d 765, 367 N.E.2d 1028.

Defendant next contends that he was denied the effective assistance of counsel because his counsel allegedly (1) failed to call several possible witnesses in support of the intoxication defense and (2) “abdicated” defendant’s position and “admitted” his guilt during closing argument.

Defendant asserts that the record indicates the presence of several persons in the pizza parlor and that those persons, if called as witnesses, would have testified to defendant’s bizarre behavior, thus supporting his intoxication defense. Defendant argues the failure to call these witnesses demonstrates ineffective assistance of counsel.

While an accused has a right to the effective assistance of counsel (People v. Knippenberg (1977), 66 Ill. 2d 276, 362 N.E.2d 681), he is entitled to competent, not perfect, representation. (People v. Berland (1978), 74 Ill. 2d 286, 385 N.E.2d 649, cert, denied (1979), 444 U.S. 833, 62 L. Ed. 2d 42, 100 S. Ct. 63.) Appellate review of a trial counsel’s performance does not extend to areas involving the exercise of judgment, trial tactics or strategy, even where appellate counsel, or the reviewing court, might have acted differently. (People v. Smith, (1980), 81 Ill. App. 3d 764, 410 N.E.2d 1017.) In determining the competency of counsel, the reviewing court will consider the totality of the circumstances. A defendant must show that his counsel was actually incompetent in carrying out his duties as trial attorney, resulting in substantial prejudice to defendant, without which the outcome of the trial would probably have been different. (People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.) Defendant may not rely on mere conjecture nor speculate as to the outcome of the case had representation been of a higher quality. People v. Hills (1980), 78 Ill. 2d 500, 401 N.E.2d 523.

In the present case the report of a physician appointed to determine defendant’s fitness to stand trial and the police reports note the names of three persons, in addition to Ms. Jackson, who were in the pizza parlor at the time of the incident. Apparently the doctor spoke to one of the witnesses, as his report states that the witness reported to the doctor that at the time of the incident defendant appeared “high on something” but that defendant “used common sense and knew what he was doing.” The record does not indicate that the other alleged witnesses were interviewed by the doctor. Defendant surmises that these witnesses, if called to testify, would have supported his intoxication defense.

The record does not reveal whether these witnesses were in fact interviewed by defense counsel, whether they were available to testify at trial, whether they were competent to testify and, except for the alleged statements by one witness as previously noted, the substance of their probable testimony.

Which witnesses to call on behalf of a defendant has been recognized as a question of trial strategy which will not render an attorney’s representation incompetent. (People v. Tate (1981), 94 Ill. App. 3d 192, 418 N.E.2d 1048.) While it is true that the “failure to interview witnesses may indicate actual incompetence [citation] particularly when the witnesses are known to trial counsel and their testimony may be exonerating” (People v. Greer (1980), 79 Ill. 2d 103, 123, 412 N.E.2d 203), whether such failure is incompetency “depends upon the value of the evidence which might have been obtained and the closeness of the case [citation].” People v. Reed (1979), 84 Ill. App. 3d 1030, 1043, 405 N.E.2d 1065.

With regard to the one witness whose purported statements were noted in the doctor’s report, his remarks indicate his testimony would not have assisted defendant’s intoxication defense as he indicated defendant “used common sense” and “knew what he was doing.” The possible testimony of the other two witnesses is not before us. “We are left to conjecture as to the impact of this omitted evidence, and such conjecture is not a basis for a demonstration of ineffective assistance of counsel *** where defendant fails to indicate the nature of the omitted testimony, he has failed to prove the requisite prejudice resulting from the omission.” (People v. Lewis (1981), 97 Ill. App. 3d 982, 990, 423 N.E.2d 1157.) Defendant’s claim must be rejected.

Defendant’s second contention regarding ineffective assistance of counsel is that his attorney “abdicated” his intoxication defense and “admitted” defendant’s guilt at closing argument. The record shows that during defendant’s closing argument, counsel asked the jury to find defendant guilty of the lesser offenses of aggravated battery and unlawful use of weapons, and not guilty of attempt murder and armed violence. Counsel described defendant on the night of the incident as “very drunk” and his crime as “very bizarre” but later conceded she did not “know” if defendant was “drunk” at the time of the incidents.

In assessing the record as a whole, as we must, we cannot say that this single aspect of the closing argument was incompetence and that it so severely prejudiced defendant that without it the outcome of the trial would have been different.

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

Affirmed.

STAMOS and DOWNING, JJ., concur.


author: JUSTICE STAMOS

text:
    JUNEAU ACADEMY, Plaintiff-Appellant, v. CHICAGO BOARD OF EDUCATION et al., Defendants-Appellees.
    First’ District (2nd Division)
    No. 82—2957
    Opinion filed March 13, 1984.
    Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini, Richard C. Clark, Michael A. Nash, and George D. Gardner, of counsel), for appellant.
    Brydges, Riseborough, Morris, Franke & Miller, of Chicago (John M. Collins, of counsel), for appellees.
   JUSTICE STAMOS

delivered the opinion of the court:

Plaintiff Juneau Academy (Juneau), a special education facility, brought suit in the circuit court of Cook County against the Chicago Board of Education (CBE) and the Board of Education of High School District 108 (108) to recover the value of services rendered to students from the defendant school districts. After a bench trial, judgment was entered for defendants. Plaintiff appeals.

Juneau Academy is a residential facility for the treatment of mentally handicapped adolescent boys. It is located in Milwaukee, Wisconsin. The instant dispute arises from the placement with Juneau in late 1979 of five high school students from CBE and one from 108. Juneau, unfamiliar with Illinois procedures for the payment of tuition to private facilities for handicapped students, accepted the Illinois students into its program before it had received approval from Illinois for its rate structure. Without such approval, Juneau was ineligible under Illinois law to receive tuition payments from Illinois school boards.

The student from 108 was referred to Juneau by Michael Schack, the administrator of the Institute for Motivational Development. Schack sent a letter of referral on November 11, 1979, to Thomas O’Brien, the assistant director of Juneau. Upon receiving the letter, O’Brien set out to determine the student’s eligibility for admission to Juneau. Schack also contacted Alex Grandt, a supervisor of special education for 108, to inform him that the student was in need of residential treatment. Schack was not an agent of either Juneau or 108. The decision to place the student in a residential facility was made by 108 on December 7, 1979, with Grandt’s knowledge. Juneau accepted the student on December 26, 1979, without 108’s knowledge.

On January 8, 1980, Grandt wrote to O’Brien, asking that the student be considered for placement with Juneau. Upon receiving this letter, O’Brien telephoned Grandt and informed him that the student had been at Juneau since December 26. Grandt expressed satisfaction that a placement had been accomplished, but said Juneau had moved faster than he had anticipated. O’Brien informed Grandt that Juneau would soon be approved for Illinois funds, and Grandt stated that 108 would discuss payment of the tuition once approval was obtained. At this time, however, Juneau had applied only for approval of its program. It was not aware that approval of its rates by the Illinois Governor’s Purchased Care Review Board was also required. Because of this misunderstanding, Juneau was not able to obtain complete approval until July 28, 1980. When the 108 student’s treatment was completed in August, Juneau contacted 108 to arrange for payment of the tuition, which at that time exceeded $2,000 per month. 108 refused to pay for any treatment provided prior to Juneau’s approval for Illinois funds. Juneau then filed suit, seeking recovery in contract.

The trial court found that the facts were not sufficient to prove the existence of an express or implied contract between Juneau and 108. The court found that 108 had not agreed to assume responsibility for the tuition for services provided prior to Juneau’s Illinois approval.

Five students from CBE were also placed with Juneau in late 1979 and early 1980, under circumstances similar to those of the student from 108. However, the trial court found that an agreement implied in fact existed between Juneau and CBE for the period of treatment prior to Juneau’s approval in Illinois. This finding was based on a statement made by James Clemons, a social worker employed by CBE, that once Juneau was approved, CBE would pay tuition retroactively to the dates of the students’ placements.

The trial court went on, however, to hold that CBE was without authority to enter into such an agreement. The court cited section 14 — 7.02 of the School Code (Ill. Rev. Stat. 1981, eh. 122, par. 14— 7.02), which had been interpreted by the supreme court in In re Claudia K. (1982), 91 Ill. 2d 469, 440 N.E.2d 78, as prohibiting the placement by school districts of students in nonpublic facilities which have not been approved by the Governor’s Purchased Care Review' Board. Because CBE was without authority to place the students with Juneau, the court held, the contract was ultra vires and void. See Stahelin v. Board of Education (1967), 87 Ill. App. 2d 28, 41, 230 N.E.2d 465.

Juneau first contends that the trial court erred in holding that section 14 — 7.02 of the School Code prohibited CBE from placing students with Juneau prior to Juneau’s approval in Illinois. Juneau argues that the trial court incorrectly interpreted the supreme court’s decision in Claudia K. The trial court found that section 14 — 7.02 of the School Code, as construed in Claudia K., prohibited the placement of students in certain nonapproved private institutions.

In Claudia K., the appellee argued that section 14 — 7.02 did not forbid placement in a nonapproved institution, but provided only that such placement would not entitle the school district to reimbursement from the State. The supreme court stated:

“Under section 14 — 7.02 of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 14 — 7.02) a district is authorized to place children in out-of-State and private special education facilities, under certain restrictions, and reimbursement of the district for certain expenses is provided. The first sentence of the second paragraph of this section states: ‘No child shall be placed in a special education program pursuant to this Section if the tuition cost for special education and related services increased more than 10 percent over the tuition cost for the previous year or exceeds $4,500 per year unless such costs have been approved by the Governor’s Purchased Care Review Board.’ (Ill. Rev. Stat. 1979, ch. 122, par. 14 — 7.02.) Even if, however, this sentence could be construed as authorizing placement in a nonapproved institution while only denying reimbursement, a regulation governing District conduct in this area leaves no doubt as to the absence of placement authority:
‘No nonpublic facility shall be utilized by a district until: (1) The facility is approved by the SEE, (2) Costs have been established for it by the Governor’s Purchased Care Review Board, (3) Proposed residential placements are reviewed and approved by the Illinois State Board of Education prior to placement ***.’ Adopted Amendments to the Rules and Regulations for Approval of Non-public Facilities Educating Handicapped Students under section 14 — 7.02 of the School Code, 5 Ill. Reg. 4577 (April 24,1981).
Clearly the District had no authority to place Claudia in Ridgeway, which was unapproved.” In re Claudia K. (1982), 91 Ill. 2d 469, 478-79.

Juneau argues that the supreme court’s opinion was based not upon section 14 — 7.02, but upon the regulation quoted above. Because this regulation did not become effective until after Juneau obtained approval for Illinois finding, Juneau contends, the decision in Claudia K. cannot be used to void Juneau’s contract with CBE.

We find this contention to be without merit. The statute on its face clearly prohibits the placement of Illinois students in a nonapproved institution such as Juneau, and while the language of Claudia K. is somewhat ambiguous, it is at least clear, as the trial court noted, that the supreme court did not rely solely upon the regulation. Rather, it appears that the court used the regulation as an aid in construing the statute and that the statute was actually the basis for the decision. We therefore find no error in the trial court’s holding that section 14 — 7.02 of the School Code rendered Juneau’s agreement with CBE void.

Juneau also contends that, under Federal law, CBE has a duty to provide handicapped children with a free education, and that therefore, section 14 — 7.02 of the School Code cannot be construed to prohibit CBE from contracting with Juneau. See 20 U.S.C. sec. 1412(1) (1982).

A private education facility such as Juneau lacks standing to assert the rights of handicapped children to a free education. (See Nelson v. Tuscarora Intermediate Unit No. 11 (1983),_Pa._, _, 457 A.2d 1260, 1263-64, cert, denied (1983), 464 U.S. 866, 78 L. Ed. 2d 172, 104 S. Ct. 196.) Juneau therefore cannot rely on the students’ rights under Federal law to advance its contract claim.

Juneau next contends that the trial court erred in finding that no contract existed between Juneau and 108. Juneau argues that the finding of no contract implied in fact was error, and alternatively that the court should have allowed Juneau to recover in quasi-contract.

A contract implied in fact arises by a promissory expression which may be inferred from facts and circumstances which show an intent to be bound. (Gary-Wheaton Bank v. Burt (1982), 104 Ill. App. 3d 767, 775, 433 N.E.2d 315; Arthur Rubloff & Co. v. Drovers National Bank (1980), 80 Ill. App. 3d 867, 873, 400 N.E.2d 614; Frey v. Belleville News-Democrat, Inc. (1978), 64 Ill. App. 3d 495, 498, 381 N.E.2d 705.) The trial judge in the instant case made specific findings of fact which are included in the record. These findings are supported by the evidence, and the facts do not support a conclusion that a contract between Juneau and 108 can be implied in fact. The record shows that the 108 student was placed with Juneau in December 1979, without 108’s knowledge. Two weeks later, when O’Brien learned that 108 hadn’t been informed of the placement, he telephoned Grandt and told him that the student was already at Juneau. Grandt asked whether Juneau was approved for Hlinois funding, and O’Brien told him that it was not, but that approval was forthcoming. Grandt then stated that 108 would discuss payment of the tuition once Juneau obtained approval for Illinois funds. Juneau subsequently discovered that the approval process was more involved than had been anticipated, and full approval was not in fact obtained until July 28,1980.

When the student’s treatment was completed in August 1980, Juneau contacted 108 and sought payment of the tuition. 108 agreed to pay tuition costs incurred after July 28, but refused to pay for any treatment provided prior to Juneau’s Illinois approval.

The record reveals that, during the eight-month period of the 108 student’s treatment, Juneau was becoming more aware, through its dealings with other Illinois boards of education, that it could not expect payment from Illinois school districts unless it obtained approval for Illinois funding. Indeed, Juneau was most likely made aware of this fact by Grandt’s comment in January 1980 that 108 would discuss payment only after Juneau obtained approval. During the seven months in which Juneau provided treatment to the 108 student while it was not approved, no attempt was made by Juneau to determine whether 108 was aware of the situation or whether it intended to pay the tuition for treatment provided during the delay in approval.

It is clear that Juneau knew during this time that 108 could not pay tuition to a nonapproved facility. Because Juneau believed in January that its approval was imminent, it agreed to wait until approval was obtained before billing 108. When Juneau learned that approval would be delayed, it apparently decided not to inform its Illinois customers of this, in hopes that rate approval would be granted quickly by the Governor’s Purchased Care Review Board. Unfortunately, approval was not obtained until the 108 student’s treatment was nearly complete, so that 108 found that the treatment of one of its students had been completed at a nonapproved facility.

These facts do not establish the existence of an agreement implied in fact between Juneau and 108 for the payment of tuition for treatment provided prior to July 28, 1980, Juneau knew from the outset that approval was necessary before it could receive Illinois funds, yet when Juneau discovered that its approval would take longer than it had initially expected, it made no attempt to determine 108’s position as to liability for tuition costs incurred during the delay. Consequently, 108 was aware only of what it had learned from its initial contact with Juneau in January; that Juneau was not yet approved but was expecting approval soon and would contact 108 regarding payment once the approval process was completed. Juneau knew that 108 could not pay tuition to a nonapproved facility and 108 believed that Juneau’s approval process would be completed immediately. The record contains no facts which suggest that 108 intended to pay tuition to a nonapproved facility. Rather, the evidence shows just the opposite; that 108 believed Juneau would be approved during most of the course of the 108 student’s treatment. We therefore find the trial court’s finding of no contract implied in fact between Juneau and 108 to be supported by the evidence.

Juneau also contends that the evidence supports a finding that it should be permitted to recover in quasi-contract. However, the law will not imply an agreement which would be illegal if it were express. (See Board of Education v. Murphy (1978), 56 Ill. App. 3d 981, 985, 372 N.E.2d 899.) We have already held that Illinois law prohibits the placement of students in nonapproved private facilities such as Juneau. Therefore, the law will not imply a contract for the placement with Juneau of a 108 student prior to Juneau’s approval in Illinois.

We find that the trial court correctly held that no implied agreement existed between Juneau and 108.

The decision of the circuit court is affirmed.

Affirmed.

DOWNING and BERLIN, JJ., concur.


author: PRESIDING JUSTICE STOUDER

text:
    WILLIAM WATSON et al., Plaintiffs-Appellees, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant-Appellant.
    Third District
    No. 3—83—0296
    Opinion filed March 6, 1984.
    Rehearing denied April 13, 1984.

      Roger A. Bixby and Vivian K. Yamaguchi, both of Epton, Mullin, Segal & Druth, Ltd., of Chicago, for appellant.
    Blanke, Norden, Barmann & Bohlen, P.C., of Kankakee, for appellee Juanita McDermott.
    Leonard F. Sacks, Dennis J. Baron, and Christopher Bohlen, all of Kankakee, for appellee William Watson.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

Plaintiffs, William Watson and his former wife, Juanita McDermott, brought suit against defendant, State Farm Fire and Casualty Company, seeking to recover under a policy of insurance for fire damage to their residence and its contents. The circuit court of Kankakee County directed a verdict, entering judgment against the defendant and in favor of both plaintiffs.

The plaintiffs’ residence and personal property were insured by the defendant providing coverage for real estate in the amount of $42,600, personal property in the amount of $21,300 and Watson’s living expenses in the amount of $2,100. On December 9, 1977, at approximately 1:53 a.m., a fire occurred destroying the residence and its contents. At that time, the plaintiffs had recently separated and Mc-Dermott was no longer living at the marital residence. On the evening of the fire, there were heavy snows and high winds. Some streets were blocked with snow and driving was hazardous.

The defendant received notice of the fire the day it occurred and later took several statements from the plaintiffs. In Watson’s initial statement, he indicated that on the day before the fire, he had consulted with his attorney for the first time regarding his wife’s recently filed divorce suit. He then went to a bar and to K-Mart before returning home in the early evening. He later left his home again to go Christmas shopping and to have dinner. The Watson children were spending the evening at a friend’s home.

Watson stated that he returned home at approximately 11 p.m., and after cleaning the basement and washing some clothes, he went to bed. Thereafter, shortly before 2 a.m. the next morning, a patrolman with the Kankakee County sheriff’s police observed flames in the Watson residence and Watson exiting the premises through a window. In a later statement Watson indicated that he had previously attempted to sell his house and at the time he had considered moving to Florida to start his own business.

Approximately a year and one-half after the fire occurred, it was discovered that on the evening of the fire Watson was accompanied by a woman to a bar and later returned with her to his residence. While she was present in Watson’s house she smelled nothing unusual. Watson discussed his impending divorce with her and appeared to be depressed. She stayed with Watson until 10 p.m., at which time Watson drove her home.

John Mauras, a fire investigator, inspected the fire site after the fire had occurred. He observed low-altitude flame damage in the basement and heavy charring underneath a basement staircase having no ascertainable natural cause. Watson stated that to his knowledge there was no paint, thinner or gasoline stored beneath the stairs prior to the fire. Maurus also observed unconnected low burning in the southeast and north areas of the basement representing two separate heat sources.

In his examination of causative agents, Maurus eliminated the furnace, electrical wiring, the electrical distribution box, the hot water heater, the cooking range, the air conditioner and several television sets. He found no signs of electrical fault or short circuiting in the appliances, and Watson had had no prior problems with them.

Maurus removed eight samples from the fire site and transported them to a laboratory for analysis by an analytical chemist. The samples were tested on a chromatograph in January of 1978. A chromatograph is a chart with peaks and valleys indicating the chemical composition of a substance. The chromatographs for the fire samples were compared to various known standards and five of the eight samples were found to be similar to gasoline and, to a lesser extent, paint thinner.

During the course of the investigation, no information was discovered to indicate that Juanita McDermott was in any way connected with the fire. McDermott completed a proof of loss form and a loss of contents form. Thereafter, the defendant requested additional information on several occasions concerning her insurable interest. In the meantime, the defendant paid the mortgage balance on the real property and took a “pro tanto” assignment from the mortgagee for the portion paid to the benefit of Watson.

On May 16, 1978, the defendant denied Watson’s claim based on its suspicion of arson. The defendant did not deny McDermott’s claim.

Watson filed suit against the defendant on October 26, 1978, and McDermott filed her suit on November 27, 1978, claiming an undivided one-half interest in all of the property destroyed. The defendant admitted liability as to McDermott but denied she had established her insurable interest. One year later, the defendant tendered the sum of $10,909.53 to the court for the benefit of McDermott’s interest in the personal property.

The two causes of action were consolidated, and at trial the court directed a verdict and entered judgment thereon against the defendant and in favor of both plaintiffs. At a separate hearing following the trial, the court granted the plaintiffs’ request for attorney fees, costs and penalties under section 155 of the Illinois Insurance Code (Ill. Rev. Stat. 1981, ch. 73, par. 767).

The defendant has requested that we review the following issues: (1) whether the trial court erred in directing a verdict against the defendant and in favor of both plaintiffs; (2) whether the trial court erred in precluding testimony by the defendant’s expert witness as to his opinion regarding the origin of the fire; and (3) whether the trial court improperly assessed attorney fees, costs and penalties against the defendant under section 155 of the Illinois Insurance Code (Ill. Rev. Stat. 1981, ch. 73, par. 767).

Directed verdicts are appropriate only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand, Pedrick v. Peoria & Eastern RR. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.

In Gregory’s Continental Coiffures & Boutique, Inc. v. St. Paul Fire & Marine Insurance Co. (7th Cir. 1976), 536 F.2d 1187, the court determined that there was sufficient evidence of arson to allow the case to go to the jury. Evidence of the insured’s motive, an extremely precarious financial situation, and opportunity, possession of the only key to the premises, in addition to the presence of gasoline drums purchased by the insured on the premises, precluded the entry of a directed verdict in favor of the insured. The court stated that the resolution of any apparent conflict in the evidence was the function of the jury, not that of the judge, and that arson is often incapable of direct proof, evidence thereof being necessarily circumstantial.

In the case at hand, the trial court improperly directed a verdict in favor of Watson. The defendant’s evidence was not incapable of being viewed as sufficient to establish arson and to link Watson with the origin of the fire. Any questionable aspects of Mauras’ expert analysis of the incendiary nature of the fire should have been assessed by the jury, not by the judge. In addition, the probability of Watson’s motive and opportunity should have been left to the jury’s determination.

The defendant also contends that Watson’s fraudulent concealment of a material fact relative to the fire, namely the presence of a woman with him at his residence on the night of the fire, rendered the insurance policy void according to its terms. As a matter of law we cannot say that such is the case, and we are of the opinion that such determination is within the province of the jury.

As for the propriety of the directed verdict in favor of McDermott, the defendant has never denied liability with respect to her. The only dispute lies in the assessment of damages.

With reference to the real property claim, the trial court credited one-half of the mortgage payments ($12,084.05) against Mc-Dermott’s claimed one-half interest in the real property ($21,300) rather than utilizing the entire mortgage payment made by the defendant ($24,168.09) as full payment of her claim. We believe that McDermott’s interest in the real property should only be charged with one-half of the mortgage liability, which is also the conclusion of the trial court. Any excess mortgage payment ultimately determined to .have been made by the defendant, if Watson is precluded from recovery, should be recoverable from Watson and not from his former wife.

The trial court struck the testimony of the defendant’s expert witness, Mauras, as to how the burn patterns he observed at the Watson home differed from burn patterns resulting from accidental fires and as to his opinion of whether the fire was accidental. We find that the exclusion of this testimony was error.

The rule of law that testimony on ultimate issues is admissible only upon subjects beyond the understanding of the average juror, is outdated law. It is now well established that an expert may directly express his opinion on an ultimate issue. (Perschall v.. Metropolitan Life Insurance Co. (1983), 113 Ill. App. 3d 233, 446 N.E.2d 570.) The modern standard for the admissibility of expert testimony in general is whether the testimony will aid the jurors understanding. (Binge v. J.J. Borders Construction Co. (1981), 95 Ill. App. 3d 238, 419 N.E.2d 1237.) The expert’s testimony excluded by the trial court falls within this modern standard and should have been admitted into evidence.

Section 155 of the Illinois Insurance Code (Ill. Rev. Stat. 1981, ch. 73, par. 767) provides that in an action by or against an insurance company wherein there is an issue of liability on a policy of insurance, an insured can recover attorney fees and costs plus a penalty not to exceed $5,000 in the event the conduct of the insurer in resolving the issue of liability is vexatious and unreasonable.

Because we have previously determined that the directed verdict in favor of Watson was error, we must conclude that the defendant’s assertion of arson as a reason for denial of liability was not unreasonable or vexatious but a legitimate policy defense based upon the defendant’s investigation of the fire. Thus, the trial court’s award of attorney fees, costs and a $5,000 penalty under the statute as to Watson’s claim was improper.

In McDermott’s case the award of attorney fees, costs and a $5,000 penalty was not error. The defendant never denied liability with respect to McDermott, and McDermott submitted all proof of loss and claim forms to the defendant when requested. Subsequently, the defendant made general inquiries into McDermott’s insurable interest and stated that it would not agree to be bound by any court decision in the insured’s divorce case. McDermott has always maintained that her insurable interest was a one-half undivided interest in the residence and its contents. Almost a year after the fire had occurred, McDermott was compelled to file an action to recover under the fire insurance policy because of the defendant’s failure to compensate her loss. The defendant’s conduct in unduly delaying payment of McDermott’s claim was clearly unreasonable and vexatious behavior within the meaning of section 155 of the Illinois Insurance Code (Ill. Rev. Stat. 1981, ch. 73, par. 767) and entitled McDermott to an award of attorney fees, costs and a penalty thereunder.

A question has also arisen as to the propriety of the trial court’s award of “other costs” and attorney fees under said statute. “Other costs” is not specifically defined by statute or by case law. It is our opinion that other costs should be given a broad interpretation in keeping with the general intent of the statute, namely to place the insured in as good a position as he would have been had the insurer paid the value of the claim when requested.

The insurer’s failure in this respect would require it to reimburse the plaintiff for all expenses involved in the preparation for trial and the trial of the cause of action itself. The trial court did precisely that in allowing McDermott the recovery of certain telephone calls, fees for a private special process server, the costs of obtaining copies of deposition transcripts and copying costs for copies of documents related to McDermott’s divorce. No distinction should be drawn for items not specifically used at trial. Any costs incurred which were found to be reasonably necessary at the time in the preparation of the case for trial should be recoverable.

As for attorney fees allowed McDermott by the trial court, we find sufficient support for the amount of the award. Evidence was presented establishing the reasonableness of the award utilizing an hourly rate computation, and we see no error in this respect.

Accordingly, for the reasons set forth above the judgments in favor of McDermott are affirmed, the judgments in favor of Watson are reversed and his case is remanded to the trial court for further proceedings consistent with this opinion.

Affirmed in part, reversed in part and remanded.

ALLOY and SCOTT, JJ., concur.


author: JUSTICE TRAPP

text:
    JENNIFER L. KING, Plaintiff-Appellant, v. JAMES R. CASAD, DefendantAppellee.
    Fourth District
    No. 4—83—0313
    Opinion filed March 30, 1984.
    Rehearing denied April 16, 1984.

      Arnold F. Blockman, of Hatch, Blockman & McPheters, of Champaign, for appellant.
    Craig J. Causeman, of Thomas, Hamer & Haughey, of Champaign, for appellee.
   JUSTICE TRAPP

delivered the opinion of the court:

Plaintiff Jennifer King appeals from a judgment in the circuit court of Champaign County awarding her $5,000 in damages for personal injuries she received when she was struck by defendant’s vehicle. The issue for our review is whether the trial court erred in instructing the jury that the standard of care required of a 15-year-old bicyclist is the ordinary care standard of Illinois Pattern Jury Instruction (IPI), Civil, No. 10.03 (2d ed. 1971). We hold that it was error and reverse and remand for a new trial.

On October 1, 1980, plaintiff filed suit against defendant for damages for personal injuries she sustained when the bicycle she was riding was struck by defendant’s pickup truck at the intersection of First and Green streets in Champaign. Plaintiff alleged that the defendant had failed to obey a red traffic light, decrease his speed to avoid a collision, yield the right-of-way, and keep a proper lookout.

At trial, plaintiff testified that she was 15 years old at the time of the accident. She stated that she was riding her bicycle south on First Street in Champaign heading toward a grocery store on the southwestern side of First and Green. Plaintiff related that as she approached the intersection the light for her was green. She had an unobstructed view to her right and noticed defendant’s truck approaching the intersection. She assumed that defendant’s vehicle would stop at the red light and proceeded into the intersection. After she was in the intersection, the traffic light changed to yellow, and she stated that she felt she could not stop in the middle of the intersection because it was not safe. She observed defendant’s vehicle, realized he was not going to stop and turned the bicycle to the left. The last-moment maneuvering was of no avail, and defendant’s front left fender struck plaintiff.

Defendant testified that he was traveling east on Green Street and stopped at the red light at the intersection. He stated that he stopped at the light and remained there for a short period; the light turned green, he looked to the north and proceeded into the intersection when he collided with plaintiff. Defendant claimed that he did not see plaintiff although he looked in the direction from which she was coming.

At the jury instruction conference, plaintiff’s counsel tendered a combined IPI instruction taken from IPI Civil No. 10.05 and IPI Civil No. A10.03 (1981 Supp.). As tendered, this instruction provided:

“A minor is not held to the same standard of conduct as an adult. When I use the words ‘ordinary care’ with respect to the plaintiff, I mean that degree of care which a reasonably careful minor of the age, mental capacity and experience of the plaintiff would use under circumstances similar to those shown by the evidence. The law does not say how such a minor would act under those circumstances. That is for you to decide. The failure of the plaintiff to use- that degree of care for her own safety is known as contributory negligence. Plaintiff’s contributory negligence, if any, does not bar her recovery. However, the total amount of damages to which she would otherwise be entitled is reduced in proportion to the amount of her negligence. This is known as comparative negligence.”

The trial judge rejected plaintiff’s instruction No. 8, reasoning that “in today’s world *** 10.05 cannot be used in this case, because there are too many people on bicycles today that are not minors and there is no way you can tell one from another.” At a later point, defendant offered IPI Civil No. 10.03, without objection by plaintiff. The jury received a computational verdict form and found plaintiff 80% at fault, assessing total damages of $25,000.

We are first confronted with the argument of the defendant that plaintiff’s failure to object to his submission of IPI Civil No. 10.03, the ordinary care instruction, results in a waiver of this issue on review. Supreme Court Rule 366(b)(2)(i) and decisional law makes clear that a party may not complain of a failure to give an instruction unless the party tenders an instruction and requests that it be given. (87 Ill. 2d R. 366(b)(2)(i); Grabner v. American Airlines, Inc. (1980), 81 Ill. App. 3d 894, 401 N.E.2d 1196.) Conversely, a party may not allege error in the giving of an instruction unless he has made a timely objection thereto. (Millette v. Radosta (1980), 84 Ill. App. 3d 5, 404 N.E.2d 823.) Defendant suggests that plaintiff had an obligation not only to tender her own “duty” instruction but also to object to his instruction after the court refused the former. Since no objection was lodged by plaintiff to defendant’s alternate instruction which was submitted after the trial court’s refusal of plaintiff’s instruction, the defendant contends that the entire issue is not open for review.

There were only two possible IPI instructions which could have been given by the trial court on the appropriate standard of care, either IPI Civil No. 10.03 or IPI Civil No. 10.05. Both could not have been given. Plaintiff’s counsel tendered the instruction he felt appropriate and upon rejection of that by the trial court, the only other instruction was IPI Civil No. 10.03. By notifying the trial court of the ground of objection and by giving the trial court an opportunity to rule on the issue, the plaintiff has satisfied the essential purposes of the waiver doctrine. (Fullerton v. Robson (1978), 61 Ill. App. 3d 93, 377 N.E.2d 1044.) Applied here, we conclude that plaintiff’s failure to object to the submission of defendant’s instruction does not preclude her from challenging the trial court’s refusal of her instruction. If error was committed on the latter, the giving of defendant’s instruction was necessarily erroneous.

The principal issue on appeal is thus whether a 15-year-old bicyclist is required to exercise ordinary care for her own safety or whether the standard of care is that required of a minor.

Supreme Court Rule 239(a) requires that whenever the IPI contains an instruction applicable in a civil case, that instruction shall be used unless the court determines that it does not accurately state the law. (87 Ill. 2d R. 239(a).) Plaintiff’s instruction No. 8 was a combined form of IPI Civil No. 10.05 and IPI Civil No. A10.03. IPI Civil No. 10.05 is the traditional instruction defining the standard of care required of a minor, and IPI Civil No. A10.03 merely incorporates the doctrine of comparative negligence into this duty instruction. The notes on use to No. A10.03 state that “[t]he instruction should be used in conjunction with IPI 10.02 defining ‘ordinary care’ if the plaintiff is over the age of 18 or is a minor operating a motor vehicle. If the plaintiff is a minor (and is not operating a motor vehicle), use IPI 10.05.” (IPI Civil No. A10.03, at 9 (1981 Supp.).) This is precisely the procedure which plaintiff followed in the instant case.

Defendant argues that the standard of care required of a minor above the age of 14 is not accurately stated in IPI Civil No. 10.05 and that the appropriate standard is the same as applied to adults, the minor’s intelligence and experience being considered. Defendant refers to the standard as the “qualified adult standard.” In support of this suggestion he quotes the following language from the case of Maskaliunas v. Chicago & Western Indiana R.R. Co. (1925), 318 Ill. 142, 149-50, 149 N.E. 23, 26:

“[I]n the case of a child above the age of fourteen years the same rule shall be applied to him in that regard as is applied to adults, his intelligence and experience being considered.”

In brief and argument defendant has made no persuasive attempt to distinguish IPI Civil No. 10.05 from the language in the case of Maskaliunas. He merely suggests that they are different. Defendant points to evidence in the record that plaintiff testified she knew she had to obey traffic laws, she was familiar "with the operation of automobiles and the implications of being struck by an automobile, and she knew she should stop at a yellow light if she could do so safely. Defendant suggests that plaintiff was as mature as an adult and should have been adjudged by an adult standard. Under defendant’s reasoning, when the evidence proves that the over-14-year-old minor exhibits an adult’s understanding of her responsibilities, the trial court can then rule as a matter of law that the ordinary care instruction is appropriate under the evidence. We disagree.

We conclude that IPI Civil No. 10.05 accurately states the standard of care required of a 15-year-old plaintiff. Both Maskaliunas and the later case of Dickeson v. Baltimore & Ohio Chicago Terminal R.R. Co. (1969), 42 Ill. 2d 103, 245 N.E .2d 762, indicate that a child should be judged by a subjective and objective standard. That is, the jury should consider how a 15-year-old child with the experience and intelligence of the plaintiff would have acted under the circumstances. Under the “reasonable man standard” which is applied to adults and which was tendered to this jury, the jury is not instructed to consider the intelligence and experience of the adult but is required to assess how an ordinary prudent person would have acted under similar circumstances as shown by the evidence. (IPI Civil No. 10.02; Fugate v. Sears, Roebuck & Co. (1973), 12 Ill. App. 3d 656, 299 N.E .2d 108.) This is a significantly different inquiry than suggested in either Maskaliunas or Dickeson, and we can see no difference between the standard suggested in Dickeson and that of IPI Civil No. 10.05. Even though the evidence might otherwise indicate that the plaintiff here was sufficiently mature in judgment to have been capable of exercising the care required of an adult, the jury was not instructed to consider this evidence but was instructed to consider how a reasonably careful person would have acted under similar circumstances.

Defendant also charges that IPI Civil No. 10.05 is a misstatement of the law because it instructs the jury that a minor is not held to the same standard of conduct as an adult. It should be pointed out, however, that the supreme court in Dickeson stated just that rule. The court noted that “[t]he Maskaliunas case permits a directed verdict to be entered against a child above the age of 14 on the issue of his contributory negligence; but it does not permit the contributory negligence of such a child to be measured by the identical standard as applied to an adult.” Dickeson v. Baltimore & Ohio Chicago Terminal R.R. Co. (1969), 42 Ill. 2d 103, 107, 245 N.E.2d 762, 764-65.

Defendant also cites Fishel v. Givens (1977), 47 Ill. App. 3d 512, 362 N.E.2d 97, and Perricone v. DiBartolo (1973), 14 Ill. App. 3d 514, 302 N.E.2d 637, as support for the giving of an ordinary care instruction in this case. Both Fishel and Perricone involved minors riding motorized mini-bikes where the courts have consistently applied a higher standard of care due to the “adult” activity in which the minor was engaged. See also Betzold v. Erickson (1962), 35 Ill. App. 2d 203, 182 N.E.2d 342 (minor driving truck held to ordinary care standard); Mack v. Davis (1966), 76 Ill. App. 2d 88, 221 N.E.2d 121 (17-year-old driving tractor — minor standard of care applied).

These cases are based upon the rationale that a child engaged in an adult activity is required to exercise responsibility in conduct consistent with the nature of the activity engaged in. The adult exception has not been applied to minor bicyclists. Conway v. Tamborini (1966), 68 Ill. App. 2d 190, 215 N.E.2d 303.

In Conway, a 14-year-old bicyclist was struck by defendant’s vehicle while riding down a country road. The defendant in Conway argued that an ordinary care instruction should have been given to define the minor’s duty of care because the minor was required to obey all traffic laws. The appellate court rejected this argument and suggested that a minor is judged by a higher standard of care when engaged in adult activities because the minor is undetectable by the public and the public cannot guard against youthful imprudence. The Conway court stated that this rationale did not apply to the plaintiff there because “[t]he appearance of this boy, with his tennis racket, and riding his bicycle, was notice to the defendant that the person some three hundred feet ahead was a minor, and that defendant should act accordingly.” (68 Ill. App. 2d 190, 197-98, 215 N.E.2d 303, 307.) Defendant argues that this rationale applies here because he could hardly be said to be on notice that a minor was approaching merely because she was operating a bicycle on a congested street. In fact, defendant testified that he did not even see her before the collision. The trial court apparently relied upon the Conway reasoning, stating that there were too many people on bicycles and that there was no way to tell whether the bicyclist was a minor or an adult.

Both the Conway court and the trial court misperceived the basis for the exception to the minor standard of care. As explained in Mack, a greater degree of care is required of a minor when engaged in adult activity because of the more dangerous nature of the activity engaged in. It is not based upon whether the public is on notice that a minor is involved in an adult activity. Indeed, defining the standard of care required of one person by reference to whether the other person had notice of the former’s conduct is illogical. Despite the Conway court’s misperceived rationale, however, the court reached a correct result. Kronenberger v. Husky (1967), 38 Ill. 2d 376, 231 N.E.2d 385; Lewis v. Northern Illinois Gas Co. (1981), 97 Ill. App. 3d 227, 422 N.E.2d 889; Bixenman v. Hall (1968), 251 Ind. 527, 242 N.E.2d 837.

We therefore hold that the trial court committed error in refusing plaintiff’s instruction No. 8. Not every error in instructions requires a reversal. Where it can be said that the error did not affect the outcome or that no injury has been done, the decree or judgment will not be reversed. (Both v. Nelson (1964), 31 Ill. 2d 511, 202 N.E.2d 494.) An instruction which states the law with substantial accuracy will not be regarded as erroneous because of errors or omissions which are not'prejudicial. A reviewing court will not reverse a trial court for such instruction unless the instruction clearly misled the jury. (Nicholl v. Scaletta (1982), 104 Ill. App. 3d 642, 432 N.E.2d 1267.) We regard the failure to submit the minor standard of care instruction as an error which clearly misled the jury in evaluating plaintiff’s duty in this case.

Lastly, the defendant has suggested that the appropriate disposition of this case is simply to remand for a new trial limited to the issue of liability under the authority vested in this court by Supreme Court Rule 366(a)(5) (87 Ill. 2d R. 366(a)(5)). In view of the fact that the error in the instruction necessarily concerns the determination by the jury of the issue of liability, we believe it necessary to reverse and remand for a new trial on both liability and damages.

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

Reversed and remanded.

MILLS, P.J., and WEBBER, J., concur.