author: JUSTICE JOHNSON

text:
      In re BOBBIE HILL et al., Minors.—(THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. STEPHANIE HILL, Respondent-Appellant.)
    First District (4th Division)
    No. 80-2748
    Opinion filed November 25, 1981.

      James J. Doherty, Public Defender, of Chicago (Brian K. Flaherty and Frances Sowa, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, James S. Veldman, and James Koch, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Respondent, Stephanie Hill, appeals the trial court finding that her children were dependent and neglected. She raises two issues for review: (1) whether the findings that the children were neglected and dependent are contrary to the evidence where the State failed to offer any evidence that the children were deprived of proper care, and (2) whether the trial court arbitrarily refused to continue the dispositional hearing to obtain current information relative to the children’s best interests.

We affirm.

Petitioners for adjudication of wardship were filed on September 7, 1978 alleging that Bobbie, Steven, and Tyrone Hill and Joni Crockett were dependent minors without proper care due to the mental disabilities of the mother in violation of the Juvenile Court Act (hereafter Act) (Ill. Rev. Stat. 1977, ch. 37, par. 702 — 5(l)(b)), and neglected in violation of the Act (Ill. Rev. Stat. 1977, ch. 37, par. 702 — 4(1)(a)).

An adjudicatory hearing was held on May 8, 1979. Ann Keating, a registered nurse with the Chicago Health Department, testified that on the morning of August 23, 1978, at about 9:40, she visited a home in Chicago Heights. She saw three children who were clean and fully dressed, a man who was sleeping on a couch, and a baby who was sleeping in an armchair, covered only by a coat. Keating examined the baby several times. The baby seemed limp with poor muscle tone and extremely weak with dull eyes and a weak cry. Keating did not examine the other children.

Although the apartment was fully carpeted, clean and adequately lighted, Keating noticed that it was sparsely furnished. There were no beds in the bedroom. There was no gas or hot water. There was no refrigerator in the kitchen, and Keating saw no food nor means of preparing food. However, Keating admitted that she did not look in the cabinets. The commode was full of excrement.

Keating knocked on the bedroom door and asked Stephanie Hill, the mother of the children, to come out. She did not do so until Keating threatened to call the police. When Stephanie came out, her gait was unsteady and she leaned against the wall for support. When Keating told Stephanie that the infant needed care, Stephanie ordered her out of the house. Keating returned one-half hour later with the police, but there was no response to her knock on the door.

Phyllis Putnam, a worker for the Department of Children and Family Services, testified that she had visited the Hill home on August 25, 1978, and had noticed that the yard was littered with glass, garbage, beer cans and liquor bottles. She also visited the children on August 31, 1978, at the home of their paternal grandmother. Putnam observed that Joni had small scars, an infected right arm and dry places on her scalp. There was nothing unusual about Bobbie. Steven had a small lump on his right forearm and an infected right leg.

Carrie Clark, the paternal grandmother, testified that she visited the children on August 27,1978. Tyrone, the infant, was on a couch, alone. He looked weak and had vomited on himself. Three men walked into the house with a piece of paper and began removing the couch from the premises. Clark took the three older children with her. The next day she returned, found the baby at a neighbor’s home, and took him to the hospital.

Eight-year-old Joni Crockett, daughter of respondent Hill, testified that she used to change the infant Tyrone’s diapers and feed and bathe him. She continued to help her grandmother feed and care for Tyrone. Joni further testified that most of the time her mother was away and that she (Joni) was often scared. Joni asked her mother’s friends for help in buying milk. On cross-examination, Joni stated that her mother did not leave the children alone often.

Respondent, Stephanie Hill, testified that she currently resided with her mother, brothers and sisters.

The adjudicatory hearing was continued until June 28, 1979, when John Whitman, a physician employed by clinical services, testified for the People. He had interviewed Stephanie as part of a diagnostic evaluation on February 15, 1979. In his opinion, Stephanie was an over-dependent, emotionally very immature person who was also quite depressed and who had difficulty caring for herself and her children in an appropriate manner. Stephanie felt lost and depressed, almost like a small child, unless some other adult was around on whom she could lean and ask for advice and from whom she could secure help. She needed someone who could give her advice on how to handle herself and her children. Stephanie had no response, concern or recognition as to the inadequacy of a home without gas or water. Her only emotional response was that she was being victimized and she did not have any means of financial support. At the time of the interview, according to the witness, Stephanie was not on public aid and did not know how to apply for it. It was impossible for Whitman to discuss practical future plans with Stephanie.

Whitman characterized Stephanie as impractical and unrealistic. She thought that if only she could get her children back everything would be well. This was a purely emotional response supported by her feelings of separation and inadequacy. Stephanie thought that she and her children could live with her mother, which was contrary to Whitman’s information.

In Dr. Whitman’s opinion, Stephanie was unable to take responsibility for her children. The basis for his opinion was her purely emotional responses and her complete inability to make any practical plans or to consider situations realistically.

On cross-examination, Whitman admitted that Stephanie was not psychotic or totally detached from reality. She was not suffering from mental illness but from a severe emotional disability — a personality disorder. She was inherently incapable of dealing with stressful and demanding situations because of her immature personality. However, Whitman admitted that immaturity disappears as a person grows up. It was unclear to Whitman to what degree Stephanie’s depression was due to the separation from her husband, but it was natural to be hurt and angry upon separation from spouse and children.

Bobbie Hill, Stephanie’s husband, also testified at the June hearing. He had married Stephanie in 1973 and they had separated in June 1978. He acknowledged that he was the father of Steven, Bobbie and Tyrone and thought that he was the father of Joni. After separating from his wife, he visited her twice and gave her $50 twice. On his visits, he noticed that his children were clean but bruised. He never brought food or toys and he never offered to babysit.

Respondent testified that she was 22 years old; that there was no gas or water in her house on August 24,1978; that she was facing eviction that day; and that she had been treating her daughter’s scalp problem.

Margaret Allen, social worker for the Department of Children and Family Services, recommended permanent placement of the children with the paternal grandmother and that Richard S. Layman be appointed guardian. On cross-examination, Allen said that Stephanie was in counseling and that Stephanie and the children could manage and function if she had the supportive services of a competent adult. If Allen had more information regarding the family’s living arrangement, she might recommend a supervision order. Attorneys for Mr. and Mrs. Hill and the guardian ad litem moved for a continuance to obtain counseling reports on Stephanie and to allow her time to secure proper housing, but the judge denied the motion.

The judge made a finding of neglect pursuant to section 2 — 4(1)(a), dependency pursuant to section 2 — 5(1)(b), and that the mother was under a disability and there was inability and best interest pursuant to section 5 — 7(1) (a) of the Act. He appointed Richard S. Layman guardian of the children with the right to place with the paternal grandmother.

Respondent contends the trial court’s findings that her children were neglected and dependent were contrary to the evidence where the State failed to offer any evidence that the children were deprived of proper care.

The Juvenile Court Act provides that a neglected child is one “who is neglected as to proper or necessary support, education as required by law, or as to medical or other remedial care recognized under State law or other care necessary for his well being * * (Ill. Rev. Stat. 1977, ch. 37, par. 702 — 4(1)(a).) A child is dependent when he is “without proper care because of the physical or mental disability of his parent** Ill. Rev. Stat. 1977, ch. 37, par. 702-5(1) (b).

Neglect is the failure to exercise the care that circumstances justly demand and it embraces willful as well as unintentional disregard of parental duty. (In re Brooks (1978), 63 Ill. App. 3d 328, 337, 379 N.E.2d 872, 879.) The question of whether children are neglected within the meaning of section 2 — 4 of the Act is to be determined from the specific circumstances of each individual case. The State has the burden of proving neglect by a preponderance of the evidence and once a determination is made, the decision will not be overturned on review unless it is against the manifest weight of the evidence. (In re Gomez (1977), 53 Ill. App. 3d 353, 359, 368 N.E.2d 775, 779.) Custody questions are among the most difficult and sensitive presented to courts for resolution. Respectful weight must be given the consideration that the trial court had the opportunity of observing witnesses. People ex rel. Edwards v. Livingston (1969), 42 Ill. 2d 201, 210, 247 N.E.2d 417, 422.

We hold that the finding of neglect and dependency was proper. The court heard evidence that there was no food in the house or any way of preparing food. There was no refrigerator, no beds, no running water or gas. The commode was full of excrement. The infant was limp, weak and had poor muscle tone. When the paternal grandmother visited the home, the baby was weak and had vomited on himself. A social worker examined the children and found that Joni had an infected right arm and Steven had an infected right leg.

The court also heard evidence that respondent was suffering from a severe emotional disability which rendered her incapable of dealing with stressful and demanding situations. She was unable to make practical plans or consider situations realistically. Respondent had no response, concern or recognition of the inadequacy of a home without gas or water. She did not have any means of financial support.

In light of all the facts considered by the court, we hold that the finding of neglect and dependency was not against the manifest weight of the evidence.

Respondent’s second contention is that the trial court arbitrarily refused to continue the dispositional hearing to obtain current information relative to the children’s best interests. Trial courts have broad discretion in granting or denying motions for continuances. Unless there is manifest abuse of discretion, or a palpable injustice apparent in the record on appeal, the judgment of the trial court will not be disturbed. Economy Fire & Casualty Co. v. Warren (1979), 71 Ill. App. 3d 625, 390 N.E.2d 361.

In the present case, the public defender requested a continuance of a month so that he could contact respondent’s counselor. There was no showing in the record of a prior effort to contact the counselor which would indicate the importance of his presence at the hearing. A motion for continuance is insufficient where there is no showing that the absence of a witness would jeopardize the ease. (Economy Fire & Casualty (1979), 71 Ill. App. 3d 625, 629.) We hold that the trial judge did not abuse his discretion by denying the motion for a continuance.

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

Judgment affirmed.

ROMITI, P. J., and LINN, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
      In re MARRIAGE OF URSULA HOFSTETTER, Petitioner-Appellee, and FRANK HOFSTETTER, Respondent-Appellant.
    First District (4th Division)
    No. 81-849
    Opinion filed November 25, 1981.

      Douglas Polsky, Herbert H. Fisher, and Alan Rugendorf, all of Chicago, for appellant.
    Beermann, Swerdlove, Woloshin, Barezky & Berkson, of Chicago (Miles N. Beermann and Howard A. London, of counsel), for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Respondent, Frank Hofstetter, appeals from an order granting exclusive possession of the marital home to his wife, Ursula Hofstetter, petitioner. Respondent raises the following issues for review: (1) whether there was evidence sufficient to justify the granting of exclusive possession of the home to the wife; (2) whether the grant of exclusive possession was proper where the home was alleged to be nonmarital property; and (3) whether the order granting exclusive possession was proper.

We affirm.

The parties were married on December 26, 1972. On March 9, 1981, Ursula Hofstetter filed a petition for dissolution of marriage from her husband, Frank. Petitioner alleged that on March 1,1981, respondent beat and struck her; that she had no place to live; and that it was dangerous to her physical, emotional and mental well-being to reside with her husband. She asked for exclusive possession of the marital home during the pendency of the dissolution action.

On March 26, 1981, both parties testified at a hearing to determine whether the wife should have exclusive possession of the marital residence. Mrs. Hofstetter stated that she had lived with her husband at their home at 5527 North Christiana, Chicago, for 10 years. On the morning of March 1, 1981, the couple had a quarrel. Mrs. Hofstetter testified as follows:

“[THE WITNESS]: A. When he gets up, he started to screaming at me, where is the breakfast, okay, so I put the water on the stove and I start to making one and he hollered and hollered and started hitting me.
[MR. LIEB]: What did he hit you with?
A. With his fist and he has a gun at home.
0 0 0
BY MR. LIEB: What if anything did he do with the gun on this occasion?
A. He beat me over the head with the gun, with his fist and made lots of bruises on my body and he kicked me and I was crying, I was upset. Then later when my mother called me, he shot—
MR. HOFSTETTER: You are under oath.
THE WITNESS: I am, that’s right. You did this twice.
THE COURT: You talk to me.
BY MR. LIEB: Now, when you said he hit you with the gun, what part of your body did he hit you on?
A. On my head, on the door.
0 0 0
Q. Did he do anything else with that gun other than hit you with it?
A. Put it to my head and shot it and broke my teeth and all that.
Q. Did he leave marks and bruises?
A. Well, you seen some of them.
Q. Yes, I did, they are not here to show the Court. Where were these bruises?
A. Well, my head was all—
Q. And another part of your body?
A. My stomach, my feet, my back. He took the ironing board and started to iron me.
Q. I don’t understand that?
A. There was an iron.
Q. An iron that you iron clothes with?
A. Yes, and he lay on my back and he said, you son of a bitch, and he called me names and got foam coming on his face and I am afraid.
# # #
BY MR. LIEB: Okay, what did you do after he was beating you?
A. Well, my mother called, she came. She wanted to make peace at home, but he started screaming and he pushed me out of the door and chained the lock and left me in one coat and one skirt the whole week.
Q. Where are your clothes now, the bulk of your clothes?
A. Well, part of the clothes are with me now, but part are at home.
Q. Did he make any further threats of physical violence against you?
A. Yes, he did, he’s going to kill me.”

On cross-examination, Mrs. Hofstetter admitted that after the quarrel, she did not call the police or seek medical attention. Testimony also established that the quarrel began around 11:30 a.m. and that Mrs. Hofstetter left the house around 6 p.m. Petitioner stated that she was unwilling to live with her husband because he was violent.

Frank Hofstetter admitted that during the first week of March 1981 he struck and beat his wife and after the beating, she left their home. He denied hitting her with a gun. According to Mr. Hofstetter’s testimony, the following occurred:

“[THE WITNESS]: So I was hungry. I did ask my wife what happened to the promise about breakfast, she said to me, I am putting the water on in the kettle, if you want to have breakfast right away, I will show you where the eggs are in the refrigerator, you can do it yourself. This is the way it started, and she walked by me, sort of bumped me, went into the other room expecting me to make breakfast, and then this thing gets started, then I hollered at her, she hollered at me, and this went on for a while and then she became furious and so did I. I should have calmed down and walked out of the house.”

At the conclusion of the hearing, the judge granted exclusive possession of the home to petitioner.

Respondent argues that there was insufficient evidence to justify the order granting exclusive possession of the marital home to the wife.

Section 701 of the Illinois Marriage and Dissolution of Marriage Act (hereafter Act) (Ill. Rev. Stat. 1979, ch. 40, par. 701) governs the granting of exclusive possession of the marital residence to either spouse pending final determination of the cause. Under the Act, the court has authority to grant exclusive possession if (1) a party has filed a verified petition seeking temporary eviction from the marital home, and (2) the physical or mental well-being of either spouse is jeopardized by occupancy of the marital residence by both spouses.

We hold that there was sufficient evidence for the trial judge to determine that the husband’s presence in the marital home would jeopardize the wife’s physical and emotional well-being. The findings of the trier of fact will not be disturbed unless manifestly against the weight of the evidence. (In re Marriage of Stallings (1979), 75 Ill. App. 3d 96, 100, 393 N.E.2d 1065, 1068.) Petitioner testified that her husband struck her with his fist, an iron and a gun, that he pointed the gun at her and “shot it twice.” Respondent admitted that he struck and beat his wife. She left their home with only the clothes she was wearing. Even though the husband denied some of the acts alleged by the wife, where there is conflicting testimony, the determination of the witnesses’ credibility is for the trier of fact (75 Ill. App. 3d 96,100). Since the finding of jeopardy to the well-being of the wife was not against the manifest weight of the evidence, the trial judge did not abuse his discretion by awarding her exclusive possession of the marital home.

Respondent also argues that the judge abused his discretion by allowing petitioner’s attorney to use leading questions. The party asserting error must demonstrate to the court that prejudice resulted. (In re Estate of Weisberg (1978), 62 Ill. App. 3d 578, 586, 378 N.E.2d 1152, 1158.) Although an entire record is available, a reviewing court is not required to search the record for the purpose of reversing a judgment. (62 Ill. App. 3d 578, 586.) In his brief, respondent referred to only one instance of the use of leading questions and he did not demonstrate the prejudice that resulted. The admission of evidence is a matter largely within the discretion of the trial court, and its decision should not be disturbed unless such discretion has clearly been abused. (62 Ill. App. 3d 578, 586.) In our opinion, the record does not show that the trial judge abused his discretion.

Respondent’s next contention is that the trial court could not grant the wife exclusive possession because the home was the nonmarital property of the husband. According to respondent, the order of exclusive possession was prejudicial to his economic rights because the house might deteriorate in his absence. Respondent’s argument has no merit. Section 701 of the Act (Ill. Rev. Stat. 1979, ch. 40, par. 701) contemplates the granting of exclusive possession “until the final determination of the cause.” Respondent’s characterization of the home as his nonmarital property is premature. Property is characterized as marital or nonmarital “ ‘only for the purposes of division on dissolution of marriage or legal separation. No attempt is made to regulate the respective interests of the spouses in property during the existence of the marriage.’ ” (Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 572, 376 N.E.2d 1382, 1386.) Operation of the term, “marital property” is not triggered until the time of dissolution. (71 Ill. 2d 563, 573.) Thus, the trial court’s order of exclusive possession to the wife pending outcome of the cause is irrelevant to the later disposition of the home as marital or nonmarital property.

Finally, respondent argues that the trial court’s order was defective because the court should have considered or required a bond. We hold that respondent is precluded from raising this issue on appeal because respondent did not request a bond in his pleadings nor object at the hearing to the entry of the exclusive possession order without bond. K.F.K. Corp. v. American Continental Homes, Inc. (1975), 31 Ill. App. 3d 1017, 1021-22, 335 N.E.2d 156, 159-60.

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

Judgment affirmed.

ROMITI, P. J., and LINN, J., concur.


author: JUSTICE MEJDA

text:
    ROSE B. STACH, Plaintiff-Appellee, v. SEARS, ROEBUCK AND CO., Defendant-Appellant.—(SEARS, ROEBUCK AND CO., Third-Party Plaintiff-Appellee, v. OTIS ELEVATOR CO., Third-Party Defendant-Appellant.)
    First District (5th Division)
    No. 80-82
    Opinion filed November 30, 1981.

      Arnstein, Gluck, Weitzenfeld & Minow, of Chicago (Arthur L. Klein, Paul L. Leeds, and Edward H. Salomon, of counsel), for appellant Sears, Roebuck and Co.
    McKenna, Storer, Rowe, White & Farrug, of Chicago (Charles P. Menges, Robert S. Soderstrom, and James P. DeNardo, of counsel), for appellant Otis Elevator Co.
    Rolland H. Stimson, Ltd., of Chicago (Rolland H. Stimson, of counsel), for appellee Rose B. Stach.
   JUSTICE MEJDA

delivered the opinion of the court:

Sears (defendant) appeals from the trial court’s denial of its motion for judgment against plaintiff notwithstanding the verdict (n.o.v.) or, in the alternative, for a new trial on plaintiff’s claim. Otis (third-party defendant) appeals from the granting of Sears’ motion for judgment n.o.v. against Otis on its third-party complaint, denial of Sears’ motion for judgment n.o.v. against plaintiff, and, alternatively, the failure to grant a new trial on plaintiff’s claim against Sears.

The issues presented are whether the trial court erred: (1) in allowing plaintiff to amend her complaint to allege an entirely new theory of liability four years after suit was filed; (2) in denying entry of judgment n.o.v. against plaintiff; (3) in denying alternatively motions for a new trial on plaintiff’s claim against Sears; and (4) in granting Sears’ motion for judgment n.o.v. against Otis. We affirm.

The following facts were undisputed at trial. Plaintiff’s injury occurred in June 1973, when she slipped and fell while stepping off a moving escalator located at the Sears store in Oak Brook. In July 1973, following her discharge from the hospital, she wrote a letter to Sears advising of her injuries and stating that she had slipped on a liquid substance. The place of her fall was described as the area known as the landing plate or headplate located at the top of the escalator. The letter did not mention that a worn landing plate was responsible or in any way contributed to her accident. On September 19, 1973, plaintiff and her attorney, Frank Koykar, visited the Sears store to observe the place of her fall.

Thereafter, on July 17, 1974, plaintiff filed suit against Sears. An amended complaint was filed on October 21, 1974. Both the complaint and amended complaint alleged negligence on the part of Sears in the operation and maintenance of the escalator by permitting a milky white substance to be placed upon the surface of the escalator, by permitting the slippery substance to remain, and by failing to warn of the said slippery substance. There was no specific allegation referring to any worn areas on the landing plate. In December 1974 depositions of plaintiff and her husband were taken. Neither plaintiff nor her husband testified about any defect in the landing plate. Plaintiff’s attorney participated in the depositions and did not tell Sears’ attorney that a landing plate was involved.

On September 20, 1978, two weeks before the close of discovery, plaintiff filed an amended notice to produce at trial pursuant to Supreme Court Rule 237 (73 Ill. 2d R. 237), which for the first time requested information concerning the installation, repair or replacement of the landing plate. On September 25, 1978, plaintiff was granted leave to amend her complaint by adding an allegation that Sears was negligent in that it “failed to replace the landing plate at the top of the escalator here involved when it became worn and slick in spots.”

Thereafter, on February 21,1979, Sears filed a third-party complaint against Otis alleging that if plaintiff was injured due to a worn landing plate as alleged in plaintiff’s amendment, those injuries were a result of Otis’ breach of its maintenance contract with Sears or, alternatively, were due solely to the negligence of Otis. Otis filed its answer on October 9, 1979, at the time of trial.

Trial Testimony

Plaintiff testified. Prior to the day of the accident she and her husband would shop occasionally at the Sears store in Oak Brook. She had used the escalator upon which she fell many times before June 24,1973. One week prior to the accident she had observed that the steel plate on the top of the escalator was “worn smooth” and was “very slick” on the right and left-hand sides. When she stepped off the escalator on the day of the accident, she looked where she was stepping but there was a man directly in front of her and she couldn’t see into what she was stepping. She stepped off onto the left side of the escalator where the grooves were worn and smooth and felt she had stepped into something very slippery and slimy. She did not see what she had stepped into nor where she stepped on the plate itself, but she knew where she had stepped because she could just “sense by the feel.” The worn spot upon which she stepped was about two inches in size. Plaintiff did not see the alleged slimy substance before or after the fall. Following her fall and after her husband had helped her to their car, she looked at her clothes and noticed a white, milky substance on the left leg of her pants suit, on the sole and heel of her left shoe, and on the sole of her right shoe. Plaintiff’s husband was unable to testify at trial due to illness.

Frank Koykar testified at trial over the objection of Sears and Otis. He was a member of the law firm initially retained by plaintiff and was familiar with her claim against Sears, which he earlier had personally handled. After plaintiff had retained his firm, he visited the Sears store on September 15,1973, and examined the landing plate on the escalator. He observed patches of wear on the left and right sides of the plate. On the left side the grooves were worn off almost entirely. Plaintiff had told him that she had been injured when she slipped on a slippery substance. His firm has an interest in the outcome of the suit, being entitled to 50% of any fees received by the attorneys at trial. He admitted that he had participated in the lawsuit before trial and in the discovery deposition; further, that his firm had never formally withdrawn as attorneys in the case but had turned over the file to another firm in 1975 for trial. His firm had an agreement with the plaintiff for attorney fees contingent upon the outcome of the trial, amounting to $35 an hour or one-third of the recovery, whichever was greater. His firm had already received some fees. It would receive additional fees if plaintiff was successful in the lawsuit, but it would not receive additional fees if she were not successful.

Max D. Adams testified on behalf of plaintiff over the objection of both Sears and Otis. He was presently employed as a chemist and had, among other degrees, a Ph.D. in chemistry from St. Louis University. For the six years preceding trial he worked in chemistry projects based on analysis of explosions, fires and failures of plastic materials. For the past 25 years he worked in conjunction with chemical engineering groups in design of electronic or mechanical gadgetry for use in chemical and nuclear reactors. He had some familiarity with mechanical design. This was the first case upon which he has been consulted which involved escalators. He had no experience in the design, manufacture, installation or maintenance of escalator equipment and had never consulted with anyone knowledgeable in those fields.

Mr. Adams testified that he examined the bottom of plaintiff’s slacks and shoes under a polarizing microscope. He determined that the material on the shoes was an organic one which he could not identify but suspected due to the morphology, that is the shape and surface characteristics of the particles, the material on the pants was at least like an ice cream or milk-shake type of food material.

Mr. Adams also testified that he visited the Sears store at Oak Brook on the day before he testified at trial to measure and photograph the escalator patterns for comparison with the markings on the toes of plaintiff’s shoes. He found that the markings were spaced on the shoe in such a manner as to make it quite consistent that they could have been formed by driving the shoe into this type of escalator tread. On cross-examination Mr. Adams admitted that he did not determine that there was anything wrong in the manner in which the escalator was manufactured, designed, installed or maintained, nor did he equate the damaged toe to any kind of malfunction of the equipment itself.

Witness Fenrow Cole testified on behalf of Sears. He has been employed at Sears’ Oak Brook store for 10 years. In 1973 he was a porter and presently is assistant foreman in maintenance. The maintenance department cleaned and maintained the escalators and turned them on in the morning, security turning them off at night. Maintenance did nothing other than clean the escalators once or twice a day, if necessary, and if there was anything wrong with the escalators mechanically or functionally, Sears would call Otis. Sears did not itself make any repairs to the escalators, and to his knowledge Otis’ representatives would visit the store once or twice a week to check the escalators for operating purposes. It was not part of his job in 1973 to watch what the Otis people did or to see how they did it.

Plaintiff’s treating physician and a radiologist testified regarding plaintiff’s injuries.

Plaintiff introduced into evidence over Otis’ and Sears’ objections several color photographs depicting the plaintiff’s injured leg taken shortly after surgery, and also showing injuries to her elbow. The photographs evidenced coloration around the injured areas caused by iodine and other materials used in surgery.

The jury returned verdicts in favor of plaintiff and against Sears awarding damages of $22,500 and in favor of Otis, and against Sears on the third-party complaint. Sears’ and Otis’ motions for judgment n.o.v. or, alternatively, for a new trial on plaintiff’s complaint were denied. Sears’ motion for judgment n.o.v. against Otis and on the third-party complaint was granted, with judgment against Otis in the amount of $22,500. Sears and Otis appealed.

Sears states that an issue for review is whether the trial court abused its discretion and committed reversible error when it allowed plaintiff to amend her amended complaint four years after suit was filed to allege a new theory of liability, namely, that plaintiff’s fall was due to a worn landing plate. The record discloses that the accident occurred June 24, 1973, and that the pertinent pleadings were filed as follows; complaint, July 17, 1974; amended complaint, October 21, 1974; the instant amendment, September 20,1978; and Sears’ third-party complaint, February 23, 1979. Trial commenced October 3, 1979. However, Sears’ statement has not been pursued by argument or citation of pertinent authority. A mere statement of an issue without support of either citation or argument amounts to a waiver of the issue on appeal. (Flynn v. Vancil (1968), 41 Ill. 2d 236, 242 N.E.2d 237; Ray’s Liquors, Inc. v. Newland (1977), 52 Ill. App. 3d 680, 367 N.E.2d 982; see also Supreme Court Rule 341(e)(7) (73 Ill. 2d R. 341(e)(7).) Accordingly, the foregoing issue is deemed waived.

II

Both Sears and Otis maintain that Sears’ motion for judgment n.o.v. against plaintiff should have been granted by the trial court. In essence, they argue that under the Pedrick standard, the evidence when viewed in its aspect most favorable to plaintiff so overwhelmingly favors Sears that no contrary verdict could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.

Sears and Otis first maintain the plaintiff failed to make out a prima facie case against Sears in that the evidence consisted solely of plaintiff’s incredible testimony and the highly suspect testimony of her attorney.

Regarding plaintiff’s testimony, Otis argues that it is improbable and contrary to common experience that plaintiff would send a letter of complaint to Sears, and be deposed, persistently stating that her fall was caused by a slippery substance, yet wait five years and then tell Sears that the real and only basis for her complaint was the worn landing plate. We do not agree that plaintiff’s testimony is so unreasonable, physically impossible or inherently improbable that it should be rejected. Plaintiff’s testimony that she knew where she had stepped because she could just “sense by the feel” is not necessarily contrary to common experience of mankind nor physically impossible. Nor is her uncontradicted trial testimony that she observed worn and slick spots upon the landing plate one week before the accident inherently improbable. Further, the argument that we reject her entire testimony as unbelievable or unacceptable for the reason that she waited nearly five years after the accident to claim recovery because of a worn headplate is without merit. We do not believe that under the circumstances of her slip and fall she could be properly required to personally evaluate the evidence indicating the cause of her fall.

Regarding further the testimony of attorney Koykar concerning the landing plate, both Otis and Sears argue that as plaintiff’s attorney his testimony was entitled to little or no weight and was, therefore, completely insufficient to either independently prove or corroborate the cause of injury. We recognize that the practice of attorneys becoming witnesses for the parties they represent has been condemned in both civil and criminal trials (see Lavin v. Civil Service Com. (1974), 18 Ill. App. 3d 982, 310 N.E.2d 858; People v. Cain (1973), 14 Ill. App. 3d 1003, 3013 N.E.2d 756) and that the circumstances of an attorney so testifying may cast a cloud upon his testimony. (City of Chicago v. Nielsen (1976), 38 Ill. App. 3d 941, 349 N.E.2d 532.) The common fiber in the cases expounding the above principles is that the testifying attorney was also participating as trial counsel. However, the attorney is nonetheless a competent witness and his relationship goes to the weight, not to the competency of his testimony. (Gowdy v. Richter (1974), 20 Ill. App. 3d 514, 523-24, 314 N.E.2d 549, 556.) In the instant case attorney Koykar’s firm was retained by plaintiff in 1973, and he initially had handled her case. Yet, although his firm had not formally withdrawn its appearance, his firm had turned over the case for trial to another firm in 1975. Neither Koykar nor any other member of his firm participated as counsel for plaintiff during trial.

Furthermore, neither Sears nor Otis offered any evidence concerning the condition of the headplate. Under the circumstances, we find that the testimony was not so improbable or unbelievable as to constitute a failure to make a prima facie case against Sears.

III

Otis and Sears also contend that the trial court committed error in refusing to give Sears’ instruction which read: “The testimony of an attorney on behalf of his own client is to be given little weight by you.” This instruction is not contained in the Illinois Pattern Jury Instructions, Civil (2d ed. 1971) (hereinafter cited as IPI Civil), nor do we find any cases in Illinois where such instruction was previously considered. However, to the contrary, IPI Civil No. 2.09 expressly recommends that no instructions be given on the credibility of special categories of witnesses “such as employees, experts and lawyers.” The pertinent comment states that “[t]hese seem to be simply matters of fact for the jury and do not involve legal rules. Unless we are to allow the judge to comment in detail on each witness, it seems wiser to leave these matters to be argued to the jury by counsel.” (IPI Civil No. 2.09, Comment.) Here, counsel for Otis and Sears were permitted to freely cross-examine Koykar and to argue to the jury his fee interest and develop any bias he may have in the outcome of the trial. In addition, IPI Civil No. 2.01 as to credibility of witnesses in general and the weight to be given to their testimony was given and provided a sufficient guide for the jury in this respect. The court properly refused the tendered instruction.

IV

Sears and Otis next contend tht even if her testimony is to be believed, the plaintiff was guilty of contributory negligence as a matter of law in failing (1) to see the worn spot, and (2) to exercise due care in avoiding it. They therefore urge that the denial of Sears’ motions for directed verdict and for judgment n.o.v. against plaintiff must be reversed. We note that the recent decision in Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, has no effect on the decision here because this trial commenced prior to June 8, 1981, the date on which Alvis v. Ribar became effective.

It is recognized that a person may not knowingly expose herself to danger for an injury which she might have avoided by the exercise of ordinary care (McInturff v. Chicago Title & Trust Co. (1968), 102 Ill. App. 2d 39, 243 N.E.2d 657) and that a plaintiff is not excused from looking when she should look and from seeing that which is in the range of vision, and that her duty is amplified by the evidence that the plaintiff had prior knowledge of the hazard. (Clark v. Quincy Housing Authority (1967), 86 Ill. App. 2d 458, 229 N.E.2d 780.) However, the use of defective or damaged premises by a person who has knowledge of the defect is not contributory negligence per se, and if, while using those premises, such person is in the exercise of ordinary care for her safety, there may be a recovery in case of injury. (See Ryan v. City of Chicago (1975), 28 Ill. App. 3d 743, 329 N.E.2d 305, and cases cited therein; see also McCarthy v. River Forest Golf Club (1978), 62 Ill. App. 3d 483, 379 N.E.2d 19.) Ordinarily, the question of plaintiff’s contributory negligence is one of fact for the jury; nonetheless, when the facts rest solely upon plaintiff’s own testimony and the attendant circumstances are not in dispute, the court then has the duty of determining whether she in fact used ordinary care for her own safety. Rhoades v. W. E. O’Neill Construction Co. (1980), 80 Ill. App. 3d 1117, 400 N.E.2d 1035; Podraza v. H. H. Hall Construction Co. (1977), 50 Ill. App. 3d 643, 365 N.E.2d 944.

Sears and Otis argue that plaintiff had used the escalator involved many times before the accident; that one week before she saw that the steel plate on the escalator was “worn smooth and it was very slick”; and that she was aware on the day of the accident of the worn areas in the landing plate but took no action when stepping off the escalator to avoid them. However, the evidence shows that the escalator was crowded and a man’s foot blocked plaintiff’s view of the surface of the landing plate. It would be most unusual for a person alighting from a crowded ascending escalator to keep her eyes constantly averted to the landing plate. Furthermore, although plaintiff had ascended the same escalator the week before, she did not slip, nor did any other person walking before her slip or fall. While there are areas in which the court may find conduct to be contributory negligence as a matter of law, we cannot so conclude on the testimony herein. In the instant case, reasonable persons might well differ on the question of contributory negligence based on the testimony and attendant circumstances which were not undisputed. Therefore, the determination of whether plaintiff was guilty of contributory negligence rested with the jury. (Lewis v. Hull House Association (1975), 25 Ill. App. 3d 617, 323 N.E.2d 600.) Consistent with the foregoing, we conclude that the evidence when viewed in its aspect most favorable to plaintiff did not so overwhelmingly favor Sears that no contrary verdict could ever stand (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504) and that the issue of contributory negligence was properly submitted to the jury. Accordingly, the trial court did not err in refusing to grant Sears’ motion for directed verdict in its favor and its motion for judgment n.o.v. against plaintiff.

V

Sears and Otis next contend that even if Sears’ motion for judgment n.o.v. was properly denied, the trial court committed reversible error in not granting Sears’ motion for a new trial because the jury’s verdict was contrary to the manifest weight of the evidence and a direct result of errors on the part of the trial court. The ultimate question to be considered on appeal, however, is not whether the proceedings below were error free, but whether error was committed which operated to prejudice the appellant or unduly affect the outcome of the case. Kwak v. St. Anthony De Padua Hospital (1977), 54 Ill. App. 3d 719, 369 N.E.2d 1346.

Otis argues that the trial court’s denial of Otis’ motion in limine to preclude plaintiff from making any reference to any defective condition of the landing plate as being related to her fall and to bar testimony with respect to any allegations that the landing plate was involved in the fall, was error. Otis maintains that the evidence of a worn landing plate was irrelevant considering the number of years that had passed before the allegations were made in September of 1978, some five years after the alleged occurrence and four years after suit had been filed. Further, Otis maintains that the evidence of the worn spot was irrelevant because it did not tend to prove the presence or absence of the slippery, slimy substance, plaintiff’s primary allegation of negligence against Sears, and instead tended to confuse the jury with a new and different theory of negligence by enabling plaintiff to introduce evidence as to both theories. However, evidence is relevant if it tends to prove a fact in controversy or renders a matter in issue more or less probable. (Intrater v. Thomas (1977), 54 Ill. App. 3d 709, 369 N.E.2d 1339.) In light of the plaintiff’s amendment to the amended complaint and the responsive pleadings filed, including the third-party proceedings, the condition of the landing plate on the day of the injury was clearly an issue in controversy and the mere passage of time did not render such evidence any less relevant to the issues of liability at the time of trial. Otis urges, however, that even otherwise relevant and useful evidence should be excluded whenever the evil or confusion of issues is present, citing Fullerton v. Robson (1978), 61 Ill. App. 3d 93, 377 N.E.2d 1044. Unlike Fullerton, where the evidence concerned reference to an unrelated antitrust suit against defendants which was relevant to attack the defendants’ credibility, and of such a nature as to confuse the jury and divert its attention from the issues presented at trial, the evidence here sought to be excluded was relevant and material as to the issue of Sears’ negligence as alleged, in the plaintiff’s amendment to the complaint. We therefore conclude the denial of Otis’ motion in limine was not error.

VI

Next Sears and Otis argue that the trial court erred by allowing the testimony of Dr. Adams whom they deem unqualified as an expert witness. They maintain that Dr. Adams, as a chemist, could only testify as to what the substance on the plaintiff’s clothes “appeared” to be and that his testimony concerning the toe of plaintiff’s shoe and the pattern of the escalator headplate was beyond his alleged field of expertise and therefore no more than a mere observation. Thus, they urge, his testimony was confusing and should have been barred.

Generally, a witness will not be permitted to testify as an expert unless he has knowledge or experience beyond the knowledge of the average person. Community Consolidated School District No. 169 v. Meneley Construction Co. (1980), 86 Ill. App. 3d 1101, 409 N.E.2d 66.

However, the record adequately established Dr. Adams’ qualifications as an expert chemist. He testified that he had examined plaintiff’s pants suit and shoes. He compared the pattern of the escalator tread with the markings on the shoes and determined that the pattern and measurements were consistent. The witness testified that the material on plaintiff’s pants suit was of an ice cream or milk-shake type of material which he submitted to a laboratory for analysis as to the chemical composition. However, he was not permitted to render an opinion as to the chemical composition because it was in part based on data and test results given to him by another laboratory. Parenthetically, we note that expert testimony is often based, at least partly, on hearsay evidence and where such evidence is commonly relied upon by experts in the field, such opinion is admissible. (Montefusco v. Cecon Construction Co. (1979), 74 Ill. App. 3d 319, 392 N.E.2d 1103.) Dr. Adams’ testimony comparing the toe of plaintiff’s shoes to the grooves of the escalator tread did not show a malfunction or defect in the escalator but served to establish the location and relationship of plaintiff’s fall on the particular escalator. He was only permitted to testify concerning his observations and measurements but not to express an opinion as to the substance on the plaintiff’s clothing. Counsel for Otis and Sears had adequate opportunity to cross-examine Dr. Adams regarding his measurements and observations and to elicit an admission that there was nothing in his opinion which suggested that the shoe damage was caused by any malfunction of the escalator. The testimony of Dr. Adams as to his personal observations was not error and at most was cumulative. Inasmuch as he was precluded from rendering an opinion as an expert, Sears and Otis cannot be heard to claim that they were prejudiced because of the witness’ alleged lack of qualifications as an expert in such field. Accordingly, the trial court did not err in permitting Dr. Adams’ testimony at trial.

VII

Next, Sears and Otis argue that it was error to permit plaintiff’s after-surgery photographs to be entered into evidence and to be given to the jury. Plaintiff was allowed to introduce two photographs of her elbow as it appeared after her fall and one photograph showing her leg following surgery. Sears and Otis argue that the photographs show injuries not claimed by plaintiff and that the photograph of plaintiff’s leg was highly inflammatory because it showed iodine coloration as well as other materials which are used in surgery.

Photographs of injuries are permitted in evidence when they might be helpful to an understanding of the facts, or are material, accurate and correctly portray what they purport to show. (Eckley v. St. Therese Hospital (1978), 62 Ill. App. 3d 299, 379 N.E.2d 306.) Otis urges that where detailed medical testimony describes the injury received and the photograph is likely to inflame and prejudice the jury, the photograph is properly excluded. (Hulsebus v. Russian (1969), 118 Ill. App. 2d 174, 254 N.E.2d 184.) Our examination of the photographs indicates that they are neither hideous nor gory as those sought to be introduced in Hulsebus. The fact that they portray an after-surgery scar, alone, does not make them inflammatory or prejudicial. We do not find that the alleged presence of coloration due to iodine rendered the photograph of plaintiff’s leg inflammatory. We note that neither Sears nor Otis made any attempt to cross-examine plaintiff or her physician as to the leg photograph regarding the presence of iodine or other surgical material nor cross-examine as to the photographs of plaintiff’s elbow. Therefore, we find that the trial court did not err by admitting these photographs into evidence.

VIII

We now turn to Otis’ contention that the trial court committed reversible error in refusing to submit to the jury Otis’ special interrogatory tendered during the conference on instructions. The special interrogatory stated: “Was a proximate cause of the injury to Rose Stach the presence of a worn spot on the escalator landing plate? Yes:_No:--”

Section 65 of the Civil Practice Act provides that the jury must be required on request of any party to find specially upon any material question or question of fact stated to them in writing; if the answer to such special interrogatory is inconsistent with the general verdict, the former controls the latter. (Ill. Rev. Stat. 1979, ch. 110, par. 65.) A special interrogatory must be given if it is upon an ultimate question of fact and is in proper form. (Estate of Constas v. Constas (1976), 42 Ill. App. 3d 223, 355 N.E.2d 683.) It is only when the form of the special interrogatory is objectionable that the trial court has discretion in submitting it to the jury. (Larson v. Thomashow (1974), 17 Ill. App. 3d 208, 307 N.E.2d 707; Scully v. Otis Elevator Co. (1971), 2 Ill. App. 3d 185, 275 N.E.2d 905.) To be in proper form, they must relate to one of the ultimate facts upon which the rights of the parties depend, and must be such that an answer responsive thereto must be inconsistent with some general verdict that might be returned. Gasbarra v. St. James Hospital (1979), 85 Ill. App. 3d 32, 406 N.E.2d 544.

Plaintiff contends that this question, posed by Otis to test the general verdict against Sears, was not in proper form because at the time it was tendered there were two allegations against Sears at issue; the first relating to a slippery substance and the second relating to a worn landing plate. Plaintiff argues, therefore, that an answer to this question, when tendered, could not be inconsistent with a general verdict against Sears based upon the two alternate theories of negligence. We agree. The state of the record at the time this special interrogatory was tendered was such that the answer to the special interrogatory would not necessarily be inconsistent with the general verdict. We note that later during the conference on instructions, Sears withdrew its objection to plaintiff’s instruction No. 13. This instruction stated only the worn landing plate theory of Sears’ negligence. Thereafter, Otis did not again tender the instant special interrogatory, and the jury was subsequently instructed only with respect to the landing plate theory. However, it was not reversible error for the trial court to refuse to submit this interrogatory to the jury at the time it was tendered in this case.

IX

Finally, we address Otis’ contention that the trial court erred in granting Sears’ motion for judgment n.o.v. against Otis. Otis argues that the court when granting Sears’ motion for judgment n.o.v. did so on the improper standard of “very contrary to the law and the manifest weight of the evidence.”

The proper standard for the granting of judgments n.o.v. was stated in Pedrick v. Peoria & Eastern R.R. Co.:

“In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.

We agree that the trial court did not apply the proper standard in entering the judgment n.o.v. against Otis. However, the court below will be affirmed if it is justified in the law for any reason or ground appearing in the record regardless of whether the particular reasons given by the trial judge, or his specific findings, are correct or sound. (Continental Grain Co. v. FMC Corp. (1975), 27 Ill. App. 3d 819, 327 N.E.2d 371.) The Pedrick standard may be applied upon review to determine whether the evidence, when viewed in the light most favorable to Otis, so overwhelmingly favors Sears that no contrary verdict could ever stand. (See Jardine v. Rubloff (1978), 73 Ill. 2d 31, 382 N.E.2d 232; Oberman v. Dun & Bradstreet, Inc. (7th Cir. 1974), 507 F.2d 349.) Thus, we turn now to the question of whether Sears is entitled to a judgment n.o.v. against Otis.

Otis argues that the jury verdict for Otis and against Sears on Sears’ third-party complaint is supported by the evidence in that the jury must have found either: (1) that Sears, as owner and operator of the escalator, was not in the exercise of ordinary care in its ownership and operation; (2) that Sears was actively negligent in maintaining the escalator; (3) that both Sears and Otis were guilty of the same fault thereby precluding indemnity; or (4) that Otis was not at fault.

Otis relies principally on Jardine v. Rubloff (1978), 73 Ill. 2d 31, 382 N.E.2d 232, to support its position that a finding that Sears was negligent in maintaining the escalator does not require a similar finding against Otis since it had a different relationship with and different duties than Sears did with regard to the escalator. Otis’ reliance on Jardine is misplaced. Jardine dealt with an injury caused by a malfunctioning elevator. That court held that owners of a building with elevators are viewed as common carriers who owe their passengers the highest degree of care, while the duty owed by those who undertake to inspect and maintain elevators is only to exercise due care. In Jardine the court reasoned that the difference in the standard of care explains the seemingly inconsistent findings that the elevator owner could be found guilty of negligence while the individual who undertook to maintain the elevator was not.

In the instant case Otis assumes that these two distinct levels of duties also apply to the operation and maintenance of escalators but cites no cases in support of this assumption. This is not the law in Illinois. In Tolman v. Weiboldt Stores, Inc. (1967), 38 Ill. 2d 519, 233 N.E.2d 33, our supreme court stated that the. rule applying to elevators need not necessarily apply to escalators and held that the owner of an escalator owed the plaintiff the same duty to use reasonable care and caution under all the circumstances to keep the premises reasonably safe.

Sears argues that the judgment n.o.v. against Otis should be upheld because, as a matter of law, Sears was entitled to indemnity from Otis. Although Illinois law has not allowed contribution among joint tortfeasors, it does permit recovery between third parties on the theory of implied indemnification. (Marchi v. Indiana Harbor Belt R.R. Co. (1980), 83 Ill. App. 3d 1005, 404 N.E.2d 938.) Generally, to justify recovery on the remedy of implied indemnity, the record must show either a pre-existing legal relationship between the third-party plaintiff and the third-party defendant or a qualitative difference between the negligence of the two third parties. Muhlbauer v. Kruzel (1968), 39 Ill. 2d 226, 234 N.E.2d 790; Burgdorff v. International Business Machines (1975), 35 Ill. App. 3d 192, 341 N.E.2d 122.

In the instant case Sears’ liability was predicated solely upon Sears’ negligent failure “to replace the landing plate at the top of the escalator here involved when it became worn and slick in spots.” Otis had a maintenance contract with Sears under which it undertook to examine, adjust, repair and/or replace, among other things, the comb plate and the landing plate. Otis also undertook to inspect the escalator biweekly. There is no indication that the worn landing plate developed instantaneously. The only maintenance duties Sears retained relative to the escalators was to clean the surface area and to turn them on and off daily. Sears did not have any superior knowledge in the operation or maintenance of said escalator. Nor does it appear that they had knowledge of the point in which a worn landing plate would become dangerous and need replacement.

Under these circumstances Sears’ liability was, in essence, derivative in nature, arising only from its ownership and control of the escalator and its duty to maintain a safe place for its customers. We need not, however, speculate as to whether under active-passive negligence theory their negligence was qualitatively different because we find that Otis’ assumption of the contractual obligation to examine and replace the escalator landing plate raises a right to indemnification by operation of law. Compare J. C. Penney Co. v. Westinghouse Electric Corp. (7th Cir. 1965), 351 F.2d 561, and Westinghouse Electric Corp. v. J. C. Penney Co. (Fla. App. 1964), 166 So.2d 211, for factually similar cases that held the maintenance contractor liable.

From our examination of the record, and in view of the above, we find that the jury’s verdict for Otis was predicated solely upon the failure of Sears to replace the worn landing plate. The jury, having found that Sears was negligent, there was no legal alternative to the judgment n.o.v. in favor of Sears and against Otis. Accordingly, applying the Pedrick standard, we- hold that the judgment n.o.v. was proper since all the evidence, when viewed in its aspect most favorable to Otis, so overwhelmingly favors Sears that no contrary verdict based on the evidence could ever stand.

X

For the above-stated reasons, we affirm the judgment in favor of plaintiff and against Sears, and further affirm the judgment n.o.v. in favor of Sears and against Otis.

Affirmed.

SULLIVAN, P. J., and LORENZ, J., concur.

       But see Alvis v. Ribar (1981), 85 Ill. 2d 1, 28, 421 N.E.2d 886, 898.


author: PRESIDING JUSTICE SULLIVAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LAWRENCE CLARK, Defendant-Appellant.
    First District (5th Division)
    No. 80-435
    Opinion filed November 30, 1981.

      Steven Clark, of Chicago (Karen Michaels, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Dean C. Morask, and Paula Carstensen, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

After a bench trial, defendant was convicted of deviate sexual assault and two counts of armed robbery and concurrently sentenced to an extended term of 50 years. On appeal, he contends that: (1) he was not proved sane beyond a reasonable doubt; (2) the extended term sentencing statute is unconstitutionally vague; and (3) the trial court abused its discretion in imposing the sentences.

A married couple were the victims of the offenses, and the wife testified that she and her husband were awakened at about 3 a.m. by a light being turned on; that she saw a man, whom she later identified in a lineup as defendant, wearing a knee-length military coat, dark blue ski mask with red trim, and brown gloves; that he was standing at the foot of their bed holding a gun to the head of their infant son; that defendant told them to “do what I say or else;” that he gave her some rope and told her to tie her husband’s hands and feet behind his back; that defendant then pointed a gun at her and told her to go into the dining room where he said “Kneel, Bitch” and pushed her down in front of him while holding a gun to her head; that defendant forced his penis into her mouth and, when he had an orgasm, ordered her to “swallow it;” that defendant took her back to the bedroom, where he tied her in the same manner as her husband; and that defendant then took their watches and other belongings.

The husband testified in substance to the same facts and, in addition, that defendant also took their wallets containing a sum of money; that the police recovered his wife’s fur coat, some books and magazines, and a mixer but that his camera equipment was never found; and that as he was viewing a lineup, defendant stepped forward, threw up his hands and said, “you can stop. What’s the use? I did it.” The husband’s testimony regarding defendant’s admission was corroborated by assistant State’s Attorney David Weiner and Investigator John Battistella, both of whom witnessed the lineup.

The victims further testified that they were Ph.D. candidates at the time in question and were trained in the observation of personality disorders; that having observed defendant at close range during the incident, they concluded his behavior was normal. On cross-examination, the wife testified that as she had not previously seen defendant, she could not say whether his eyes, voice and mannerisms were any different than on other occasions. The husband admitted that he and his wife were told defendant would probably assert an insanity defense.

Since no reasonable doubt argument is made on appeal, a detailed statement of the facts will not be necessary and that evidence will be discussed only as relating to the contentions raised.

The trial court found that at the time of the offense, defendant was able to appreciate the criminality of his conduct and to conform it to the requirements of the law and that he was guilty of deviate sexual assault and armed robbery as charged.

Opinion

We first consider the question of the insanity defense. Section 6 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 6 — 2) provides:

“(a) A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.
(b) The terms ‘mental disease or mental defect’ do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.”

The law has long expressed the deep commitment of society to avoid the injustice of convicting a person who is insane. To that end, the criminal law is made to apply only to those who can be held responsible for their conduct. (See G. Fletcher, Rethinking Criminal Law 835-36 (1978).) Thus, the insanity defense reflects the fundamental principle that a person is not criminally responsible for an involuntary act. People v. Grant (1978), 71 Ill. 2d 551, 377 N.E.2d 4.

The law presumes all people sane (People v. Martin (1980), 87 Ill. App. 3d 77, 409 N.E.2d 114), but when evidence is introduced sufficient to raise a reasonable doubt of sanity, it is incumbent upon the State to establish beyond a reasonable doubt that the accused had capacity to commit the offense at the requisite time (Ill. Rev. Stat. 1977, ch. 38, par. 3—2; People v. Sutton (1976), 43 Ill. App. 3d 1008, 357 N.E.2d 1209), or as otherwise expressed, that he was sane beyond a reasonable doubt (People v. Arndt (1980), 86 Ill. App. 3d 744, 408 N.E.2d 757). As stated in People v. Spears (1978), 63 Ill. App. 3d 510, 516, 380 N.E.2d 423, 428:

“[Ejither an impairment of cognition or an impairment of volitional capacity may prevent an individual from conforming his actions to the requirements of the law and therefore give rise to a defense of insanity. * * * Thus, although an accused understood the nature of his conduct and appreciated its wrongfulness, he will be excused from criminal liability if his ability to consciously refrain from the conduct was substantially impaired by a mental defect.”

Furthermore, to determine whether the accused was sane at the time of the offense requires not simply that he is able to distinguish right from wrong, but rather that he is able to exercise power to choose between them. (People v. Meeker (1980), 86 Ill. App. 3d 162, 407 N.E.2d 1058.) Whether the State has met its burden is a question of fact (People v. Jackson (1976), 42 Ill. App. 3d 919, 356 N.E.2d 979), and the fact-finder’s decision will not be reversed unless so improbable or unsatisfactory as to create a reasonable doubt of defendant’s sanity (People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233) or is so palpably erroneous as to suggest its basis in passion or prejudice (People v. Kuhn (1979), 68 Ill. App. 3d 59, 385 N.E.2d 388). We conclude on the basis of the record presented herein that the State has met its burden of proving defendant legally responsible at the time of the incident.

Defendant’s mother testified as to his family background and solitary childhood and as to his psychiatric history which dated to 1970 when he was first hospitalized while in the army. She also stated that defendant received psychiatric treatment at various times; that when she had last seen him in December of 1977, he was nervous but was not otherwise behaving unusually; and that at the time of his arrest he was not receiving treatment.

Defendant testified that as a child he was often lonely, depressed, very nervous and active; that in the army he began drinking heavily, smoking opium, using various drugs and became depressed, forgot things, felt people were against him and “started missing time”; that because he wasn’t eating or sleeping and because he was becoming violent and tried to hurt people, he was hospitalized and treated by army psychiatrists in Germany; that he was honorably discharged in 1970 for medical conditions; that he had difficulty recalling the time he spent at Fitzsimmons Hospital in Denver, Colorado in 1970 or seeing his mother while there; that after next being treated at the Hines Veterans'Administration Hospital, he was released as an out-patient and was not treated for about six months but took medication; that he returned to Hines when he was “missing time” and was given medication for ábout a yeár; that in 1973 he was readmitted to Hines for the same problems and was hospitalized in 1975 and 1976 because people complained of his violence and because of his having sex with animals and children; that in June of 1977 he had bad feelings about himself but did not want to return to the hospital until after his girlfriend had her baby in January 1978; that the last thing he remembered before his arrest was being with Van Fitzpatrick and Raymond Meyers, but he could not recall where he had been after leaving them or of seeing the victims before trial; and that he spent two weeks at the Illinois State Psychiatric Institute (ISPI) but did not remember why.

Dr. Jerome Katz, a psychiatrist, testified that he interviewed defendant on February 7, 1979, and used police, army and hospital records for his diagnosis; that the records described a variety of sexual perversions, aggression, and defendant’s forcing unknown women to perform sexual acts at knifepoint or gunpoint; that defendant had been diagnosed as schizophrenic in partial remission and as having pedophilia and an attraction to young girls; that defendant complained of blackouts and felt he might lose control and become violent; and that in response to a hypothetical question, Katz found that based on the seven- to eight-year medical history of the hypothetical subject, he was suffering from schizophrenia on January 17, 1978, the date of the incident, as a result of which he could not conform his conduct to the requirements of the law.

On cross-examination Katz testified that in making his initial diagnosis he had not considered a psychologist’s report that defendant was malingering to avoid trial, but he would not change his opinion; that defendant was a “reactor” who responded to external authority but could not exercise internal control; that the greater the time lapse between the crime and the psychiatric examination, the more difficult it is to make an accurate diagnosis; and that at the 50 or 60 trials at which he had testified on the issue of insanity, he had always found the defendants to be legally insane.

In the State’s rebuttal it was stipulated that defendant understood his rights and told Investigator Battistella that he had been drinking with two friends at the time of the incident; that when told his alibi would not stand, defendant stated he had been a psychiatric patient and had frequent “mental blackouts;” that he recalled being in a large apartment; that he turned on the light in a room where a man and woman were and made them lie on the floor; that he thought he had a gun; that the woman looked young, was naked and on her knees; that he forced a woman to suck his penis and had a sexual climax; that he walked around the apartment putting items into a shopping cart and said, “Thanks for the hospitality” as he was leaving; and that upon seeing police cars and wondering why he had the shopping cart, he dumped it, discarded his coat and walked away. Additionally, Battistella testified that defendant appeared normal at his (defendant’s) apartment and at the police station, and assistant State’s Attorney Weiner testified that defendant was sane at the time of the lineup. Assistant State’s Attorney Obbish testified that Katz stated defendant’s “face was almost a mask and there was a great deal of lying, as I recall.”

Finally, Dr. Gerson Kaplan, a psychiatrist, testified that he interviewed defendant on February 14,1978, and after reviewing defendant’s social services report and the report of a psychologist, he initially diagnosed defendant as paranoid schizophrenic in partial remission but fit to stand trial; that defendant was uncooperative and could not be interviewed on July 24, 1978, and was possibly acutely psychotic or malingering; that after being observed for 10 days at ISPI, no evidence of psychosis was found; that he interviewed defendant again on November 14,1978, and based on defendant’s medical reports from 1975, 1976 and 1977, he was diagnosed as a sociopath who sought psychiatric care when in trouble with the law and entered mental hospitals complaining of serious mental disturbances but exhibited no such symptoms while hospitalized; that defendant had been malingering for some time; that the subject of a hypothetical question had an immature personality with antisocial features and was able to appreciate the criminality of his conduct and conform it to the requirements of the law.

On cross-examination Kaplan admitted that there were no charges pending against defendant between May and October 1976 when defendant was treated for mental disturbance; that he was unaware defendant had been hospitalized and was on medication between the first and second interviews; that while his initial diagnosis of defendant was incorrect, he could not eliminate the possibility defendant was schizophrenic on February 14,1978.

Defendant contends that because of a mental disease, schizophrenia, he was incapable of controlling his conduct at the time of the offense. In substance, he maintains that he was not proved sane beyond a reasonable doubt because four medical reports dating from 1970 to 1977 diagnosed his illness and that the trial court’s determination to the contrary was against the manifest weight of the evidence.

In our view, however, the evidence established defendant’s sanity beyond a reasonable doubt. Although Katz was of the opinion that the hypothetical man was suffering from schizophrenia and as a result was unable to conform his conduct to the requirements of the law, he apparently based that conclusion in part on a one-hour interview held more than one year after the incident, and in this regard he stated that the reliability of a diagnosis decreases with time. Furthermore, Katz admitted that he had not considered certain records in making the diagnosis and that of the 50 or 60 times he had testified, he always found the defendants to be legally insane. In contrast, Kaplan concluded that the hypothetical man exhibited antisocial behavior and could appreciate the criminality of his conduct and conform it to the requirements of the law. That opinion was based on four interviews of defendant, and although he initially diagnosed defendant as schizophrenic, he changed his opinion after reviewing defendant’s medical records, which in his view established a pattern of malingering in order to avoid trial. That view was supported by the report of a staff psychologist at ISPI. Kaplan further noted that defendant’s complaints of mental disturbance prior to hospitalization were not borne out by symptoms during such times. Although Kaplan testified that defendant sought psychiatric care when in trouble with the law, he admitted that no charges were pending against defendant between May and October 1976 when he was being treated.

Lay testimony also was elicited from the victims to the effect that defendant appeared normal during the incident. Defendant asserts that their testimony lacked credibility because at the time his face was concealed and they were not wearing their glasses and because no basis existed for comparing his previous behavior. Against this is the fact that both were Ph.D. candidates who had had extensive training in recognizing personality disorders, and their testimony was further supported by that of Battistella and Weiner who concluded that defendant acted normally and was sane at the time of the arrest and during the lineup and questioning at police headquarters. Defendant’s mother also stated that his behavior was not unusual when she saw him in December of 1977, and significantly defendant said nothing about mental illness until told his alibi would not stand. Finally, the various reports and medical records concerning defendant were admitted into evidence.

In deciding whether the State has proved the defendant sane beyond a reasonable doubt, the trier of fact must consider the totality of the evidence, weighing testimony and determining credibility of witnesses, both expert and lay, without being required by law to accept the opinions of psychiatrists regarding sanity. (People v. Martin (1980), 87 Ill. App. 3d 77, 409 N.E.2d 114.) Rather, the weight given to a psychiatrist’s opinion is to be measured by the reasons and factual details supporting such conclusion (People v. Martinez (1980), 86 Ill. App. 3d 486, 408 N.E.2d 358), and it is within the discretion of the trier of fact to accept one expert’s opinion over another on the question of insanity so as to resolve contradictions (People v. Meeker (1980), 86 Ill. App. 3d 162, 407 N.E.2d 1058). Furthermore, lay witnesses may express their opinions as to sanity if such is based on personal observation of the accused (People v. Mahon (1979), 77 Ill. App. 3d 413, 395 N.E.2d 950), including conversations with him (People v. Banks (1974), 17 Ill. App. 3d 746, 308 N.E.2d 261). the trier of fact also may consider defendant’s statements as well as physical evidence and other facts in evidence on the question of sanity. 86 Ill. App. 3d 162, 168, 407 N.E.2d 1058, 1063.

The record further indicates that during the commission of the offense, defendant either brought rope with him or searched for rope in the victims’ apartment, which he then used to tie the victims; that he instructed the wife how to tie her husband; that upon finishing the deviate sexual assault, defendant led the wife back into the bedroom where he instructed her to lie down opposite her husband with her head to his feet and his feet to her head and tied her in the same fashion; that he asked where the jewelry was and upon being told immediately it was in a jewelry box, he took her watch and then took her husband’s watch from his person, but did not take the inexpensive enamel jewelry in the jewelry box; that he ransacked the apartment apparently searching it, at one point asking where the mixer top was; and that during this time he heard the victims’ infant crying and brought it water in a baby bottle.

The existence of a plan or design for the perpetration of the crime is one fact having particular relevance on the question of sanity. (86 Ill. App. 3d 162, 168, 407 N.E.2d 1058, 1064; People v. Spears (1978), 63 Ill. App. 3d 510, 380 N.E.2d 423.) The evidence presented herein suggests a deliberate, rational approach to the offense, and it appears that defendant was capable of directing his actions in conformity with such plan, which thereby tends to dispel any reasonable doubt that at the time of the offense, defendant’s mental disease or defect substantially impaired his capacity to control his conduct or conform it to the requirements of the law. Furthermore, while certain evidence was presented as to the existence of such mental disease or defect, we find nothing in the record to suggest how it deprived him of the ability to appreciate the criminality of his conduct or conform it to the requirements of the law. We believe the trial court thoroughly assessed all relevant factors. The finding of insanity was not, therefore, so improbable or unsatisfactory as to create a reasonable doubt of guilt or so palpably erroneous as to suggest a basis in passion or prejudice.

Defendant next challenges the extended term statute as unconstitutionally vague in its use of the phrase “exceptionally brutal or heinous behavior indicative of wanton cruelty.” He contends that as the phrase is undefined, it fails to provide adequate guidelines by which to impose an extended sentence and results in disparate sentences for crimes of approximately equal gravity.

Section 5 — 5—3.2(b)(2) of the Unified Code of Corrections (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 — 5—3.2(b)(2)) provides:

“[T]he following factors may be considered by the court as reasons to impose an extended term sentence under Section 5 — 8—2 [par. 1005 — 8—2] upon any offender who was at least 17 years old on the date the crime was committed:
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(2) When a defendant is convicted of any felony and the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.”

We note that defendant failed to preserve the constitutional challenge to the present statute either at sentencing or by post-trial motion and therefore has waived it on review. The issue of the constitutionality of a statute cannot be raised for the first time on appeal but must have been presented and ruled upon at trial, and proper exceptions to such ruling must be preserved. (People v. Amerman (1971), 50 Ill. 2d 196, 279 N.E.2d 353; People v. Smith (1981), 93 Ill. App. 3d 1133, 418 N.E.2d 172.) In any event, we find that contention to be without merit.

Sentencing statutes attacked on constitutional grounds are presumptively valid (Gregg v. Georgia (1976), 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909), and the nature and extent of the penalties prescribed for criminal offenses are legislative matters (People v. Smith (1958), 14 Ill. 2d 95, 150 N.E.2d 815), so that consideration is given to the objective sought by the legislature through the medium of the statute (People v. Merchel (1980) , 91 Ill. App. 3d 285, 414 N.E.2d 804). A statute violates due process of law under the Federal Constitution (U.S. Const., amend. XIV) and the Illinois Constitution (111. Const. 1970, art. I, §2) on the grounds of vagueness “if the terms are so ill-defined that the ultimate decision as to its meaning rests on the opinions and whims of the trier of fact rather than any objective criteria or facts.” (People v. Pembrock (1976), 62 Ill. 2d 317, 322, 342 N.E.2d 28, 30.) Stated otherwise, a criminal statute need not particularize every prohibited act but may be framed in general terms (see People v. Witzkowski (1972), 53 Ill. 2d 216, 290 N.E.2d 236), and as stated in People v. Schwartz (1976), 64 Ill. 2d 275, 280, 356 N.E.2d 8, 10, cert. denied (1977), 429 U.S. 1098, 51 L. Ed. 2d 545, 97 S. Ct. 1116: “When called upon to decide a vagueness question, a court will assume, absent contrary legislative intent, that the words of the statute have their ordinary and popularly understood meanings.”

Decisional law is instructive on this question. In People v. Turner (1981) , 93 Ill. App. 3d 61, 69, 416 N.E.2d 1149, 1155, the court, considering the same question as presented here, construed the term “ ‘heinous’ ” in the dictionary sense of “ ‘grossly wicked or reprehensible; abominable; odious, vile.’ ” Furthermore, in defining the word “wanton,” the court in People v. Jones (1979), 73 Ill. App. 3d 99, 103, 391 N.E.2d 767, 769-70, quoting Bartolucci v. Falleti (1943), 382 Ill. 168, 174, 46 N.E.2d 980, 983, stated:

“ ‘111 will is not a necessary element of a wanton act. To constitute an act wanton, the party doing the act or failing to act must be conscious of his conduct, and, though having no intent to injure, must be conscious, from his knowledge of surrounding circumstances and existing conditions, that his conduct will naturally and probably result in injury.’ ”

The Jones court also defined “cruelty” in its dictionary meaning as a “ ‘disposition to inflict pain or suffering or to enjoy its being inflicted.’ ” 73 Ill. App. 3d 99, 103, 391 N.E.2d 767, 769.

It is apparent to us that the criteria of the instant statute are not so ill-defined as to depend upon the opinion or whim of the trier of fact for its meaning. Neither do we discern a legislative intent that the words of the statute be given any other than their ordinary and popular meaning. We believe the statute provides objective criteria to assist a sentencing court in assessing whether an individual’s conduct poses so great a threat to society as to warrant extended incarceration. Although formulated in general terms, the language focuses attention upon the exceptionally violent aspects of certain crimes, not otherwise inherent in the prohibited conduct. Accordingly, we find no constitutional infirmity in the extended term statute on the grounds asserted.

Defendant finally contends that the sentence was improperly imposed, since through subsequent interpretation the extended term statute requires that physical injury be inflicted beyond that which constitutes the crimes and that such injury was absent here.

While a reviewing court is empowered to reduce sentences (Ill. Rev. Stat. 1979, ch. 110A, par. 615(b)(4)), the imposition thereof rests within the discretion of the trial court placed as it is in a superior position to weigh the factors which bear upon the sentence, and its determination will be not altered on review absent abuse of discretion. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541; People v. Adams (1980), 91 Ill. App. 3d 1059, 415 N.E.2d 610.) We do not think, however, that the trial court abused its discretion here.

Contrary to defendant’s position, the cases upon which he relies do not in so many words create a requirement of physical injury for purposes of imposing an extended sentence. In People v. Warfel (1979), 67 Ill. App. 3d 620, 385 N.E.2d 175, the victim was attacked without provocation, grabbed by the throat and thrown to the ground, and her face was slapped and beaten against the sidewalk. Although she suffered cuts, bruises and hemorrhaging near the eye, the court did not hold that those or similar injuries were required by the extended term statute. In People v. Jones (1979), 73 Ill. App. 3d 99, 391 N.E.2d 767, defendant robbed a bar and fired four shots into the air, frightening the patrons and causing powder burns to a deputy’s right hand and face and bleeding to his right hand. In imposing an extended sentence, the court specifically noted that the possibility of injury and the mental anguish of the victims who feared for their lives, as well as the physical injuries inflicted, were factors which amounted to “wanton cruelty.” Finally, in People v. Turner (1981), 93 Ill. App. 3d 61, 416 N.E.2d 1149, the victim was struck in the head five times, threatened repeatedly with death, and forced into three acts of sexual intercourse, two of fellatio and one of sodomy. Finding that the victim sustained physical injuries due to defendant’s actions, the court did not state that such were required in order to amount to heinous and cruel behavior. Rather, the court focused upon cruelty as “ ‘something that causes pain or suffering’ and as a ‘disposition to inflict pain or suffering or to enjoy its being inflicted’ ” (93 Ill. App. 3d 61, 69, 416 N.E.2d 1149, 1155, quoting People v. Jones (1979), 73 Ill. App. 3d 99, 103, 391 N.E.2d 767, 769) and considered the threat of death, with its concomitant mental anguish, as a significant factor. Accordingly, the court held that defendant’s conduct went “beyond what is necessary to show ‘exceptionally brutal and heinous behavior indicative of wanton cruelty’ as interpreted in Jones." 93 Ill. App. 3d 61, 69, 416 N.E.2d 1149, 1155.

We read these cases as permitting the courts to consider either actual physical injury, mental suffering or both in deciding whether to impose an extended sentence. Common experience teaches that the subjective pain of mental injury often exceeds that of physical injury, and the intangible scars may be as lasting. Whether the wound is to the mind or to the body, those with close emotional ties to the victim may be affected. (See People v. Schlemm (1980), 82 Ill. App. 3d 639, 402 N.E.2d 810, wherein the court stated that the concealment of a corpse could be done so as to inflict such suffering on the bereaved sufficient to warrant an extended sentence.) To say, therefore, that physical injury is the sole criterion that courts may consider under the extended-term statute is to ignore an obvious class of injuries and to invite unreasonable results.

In light of the case law, the facts presented here justify the imposition of the extended sentence. The victims’ home was invaded, and a gun was held to the head of the one-year-old son while defendant threatened to kill him if the parents failed to do as he ordered. The husband’s hands and feet were tied, and his wife was then told to disrobe, thrown to the floor and forced to commit a deviate sexual act while husband and son watched, after which she was told to “swallow it.” The victims were then left tied on the floor while defendant ransacked their home for 40 minutes carrying a gun, several times demanding to know where certain of their possessions were kept. Finally, as he departed with their belongings, he said “Thanks for the hospitality.” At sentencing, the trial court stated:

“The nature and circumstances of this act that the Court finds are — particularly, the gun to the baby’s head, the actions of the defendant toward the husband and wife portrays a circumstance in which this Court does find the offense was accompanied by exceptional brutal or heinous behavior indicative of wanton cruelty.”

We think it clear that the wife suffered physical harm and that both victims suffered mental anguish during defendant’s armed invasion of their home. Such conduct was, in our view, “exceptionally brutal behavior indicative of wanton cruelty,” and therefore, the trial court did not abuse its discretion in imposing sentence.

The convictions and the sentences are affirmed.

Affirmed.

LORENZ and MEJDA, JJ., concur.