author: JUSTICE WELCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARLIN W. DAVIS, Defendant-Appellant.
    Fifth District
    No. 81-101
    Opinion filed January 29, 1982.
    Rehearing allowed March 1,1982.
    Gitchoff and Wallis, of Granite City (John Gitchoff, of counsel), for appellant.
    Donald Weber, State’s Attorney, of Edwardsville (Martin N. Ashley and Raymond F. Buckley, Jr., both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WELCH

delivered the opinion of the court:

On November 8, 1979, the defendant was issued three traffic citations by a police officer of the City of Collinsville. He was charged with driving while intoxicated, failure to reduce speed to avoid an accident and driving in violation of a restricted permit. The citations set an appearance date of November 29, 1979. The three citations were filed in the Circuit Court of Madison County on November 9,1979, along with a complaint which charged the defendant with the offense of driving while intoxicated.

The defendant appeared in court on November 29, 1979, entered a plea of not guilty and waived his right to a jury trial. The next docket entry in this case is an order dated January 10,1979, which stated that the three charges were to be consolidated with an unrelated felony charge pending against the defendant. The parties have assumed that this entry was made in 1980, and we shall so treat it. No further action was taken until November 17, 1980, when an order was entered directing the three offenses to be set for immediate jury [sic] trial, because they were never formally consolidated with the felony charge.

Continuances were requested by the defendant on November 24 and December 11,1980. The case was called for a bench trial on February 6, 1981. The defendant moved to dismiss the traffic charges, arguing that he had not been given a trial between 7 and 49 days of his appearance and plea of not guilty, as required by Supreme Court Rule 505 (111. Rev. Stat. 1979, ch. 110A, par. 505). The court denied the motion and proceeded to trial on the three traffic charges, as well as an offense of resisting a police officer, which is not involved in this appeal.

The principal evidence against the defendant on the traffic offenses was the testimony of civilian motorist Paul Halbert. On November 8, 1979, he was driving west at 50 miles per hour in a 55-mile-per-hour speed zone on Beltline Road in the City of Collinsville. He felt a jolt, and when he looked behind him, Halbert saw another car pushing him. The second car made continuous contact with Halbert’s auto for several hundred feet, forced Halbert to accelerate to 65 miles per hour and, at one point, to cross the center stripe. Halbert finally brought his car to the shoulder of the road and the second motorist stopped about 10 car lengths ahead of him. Halbert walked up to the other car and discovered the defendant sitting in the driver’s seat in a semiconscious state.

Halbert flagged down Collinsville Police Officer John Thiel. Thiel walked the defendant from his car to the squad car. Both Thiel and Halbert noticed that the defendant was having difficulty maintaining his balance during this walk. It was the opinion of Thiel and Halbert that the defendant was intoxicated at that time. Officer Thiel transported the defendant to the Collinsville police station, where he discovered that the defendant’s authorization to drive came from a permit which restricted his driving to employment-related matters and other necessities. The defendant told Officer Thiel that, before the accident occurred, he had been at the Last Straw Tavern in Collinsville.

The defendant was convicted of all charges, and was sentenced accordingly. He has appealed only from the three traffic convictions, and argues that those charges should have been dismissed under Supreme Court Rule 505. He notes that Supreme Court Rules 504 and 505 (Ill. Rev. Stat. 1979, ch. 110A, pars. 504, 505) have been read together to mean that “where the accused in a traffic case pleads not guilty at his first appearance, but does not demand a jury trial, he is entitled to a hearing on the merits within 7 to 49 days after appearance.” People v. Mears (1980), 84 Ill. App. 3d 265, 271, 405 N.E.2d 443, 447.

The above quotation is an accurate statement of the law pertaining to the setting of a trial date in traffic cases. But, relying upon the language of Rules 504 and 505, the courts of this State have also defined the situations under which the scheme of disposition established by those rules does not apply. The first of these situations occurred in People v. Claeys (1976), 44 Ill. App. 3d 83, 357 N.E.2d 886, where prosecution was by a criminal complaint signed by a civilian. No traffic citation was ever issued, and the arresting officer’s appearance was not necessary at trial. (See also People v. Novak (1979), 68 Ill. App. 3d 453, 386 N.E.2d 459.) Subsequently, this exception was expanded to include criminal complaints signed by a police officer. (People v. Bell (1979), 74 Ill. App. 3d 316, 392 N.E.2d 993). Although, in People v. Mears (1980), 84 Ill. App. 3d 265, 271, 405 N.E.2d 443, 447, the language of Claeys was repeated as the outer limit of this exception, the Mears court did not consider Bell. Consequently, it is the law in this State that if a criminal complaint has been signed by a policeman or a civilian against a motorist, and no traffic tickets have been issued, then the appearance schedule required by Rules 504 and 505 does not apply.

A second set of circumstances which would remove a traffic prosecution from Rules 504 and 505 was discussed in People v. Maher (1979), 77 Ill. App. 3d 488, 396 N.E.2d 77. In that case, the defendant was issued a traffic citation on November 12, 1977. Two days later, the defendant notified the court of his intention to plead not guilty and waive his right to a jury trial. A bench trial was scheduled for November 30, and the defendant appeared for trial on that date. The prosecutor moved for a continuance because he had not received the gold seal records from the Secretary of State, which would show if the defendant did not have a valid driver’s license, as was alleged. When that motion was denied, the State requested leave to dismiss the charges, which was granted. Attempts to reinstate the charges were finally denied by the court, and the State appealed.

The appellate court held that, even though Rule 504, as it then existed (compare City of Belleville v. Watts (1978), 61 Ill. App. 3d 538, 378 N.E.2d 213, with People v. Mears (1980), 84 Ill. App. 3d 265, 405 N.E.2d 443, and People v. Seaberry (1980), 86 Ill. App. 3d 369, 408 N.E.2d 51), entitled a traffic defendant to a hearing on the merits of his case on his first appearance, the rule “was clearly not meant to apply to situations like this case where factors beyond the immediate control of the prosecutor and arresting officer are the cause of the delay.” 77 Ill. App. 3d 488, 493, 396 N.E.2d 77, 81.

In this case, the State argues that both the “prosecution by complaint” exception and the “factors beyond the State’s control” exception apply. To invoke the first of these exceptions, it is noted that a complaint was signed against the defendant by a police officer, as it was in Bell. It must be conceded, though, that this case is slightly different from Bell because both a criminal complaint and a traffic ticket were issued to this defendant on the charge of driving while intoxicated.

We do not believe that this difference is significant enough to depart from the rule of Bell. The record shows that, although the defendant was issued a traffic ticket for driving while intoxicated on November 8,1979, a criminal complaint on that offense was filed, along with the ticket, the following day. Had the arresting officer written no ticket, there would be no doubt that Rules 504 and 505 would not apply. It seems anomalous to us to allow an accused who has been given a ticket and a complaint to rely upon those rules, while denying those protections to an accused who is charged only by complaint. Moreover, such an interpretation is not called for by the language of Rule 505, which refers to the issuance of a traffic ticket, “conservation ticket or Notice to Appear in lieu of either.” As was noted in People v. Mears, “ ‘the expression of one mode of action in an enactment excludes any other even though there be no negative words prohibiting it.’ ” (84 Ill. App. 3d 265, 270, 405 N.E.2d 443, 447.) If the use of a criminal complaint, even in conjunction with a traffic ticket, was not meant to remove a case from the operation of Rules 504 and 505, then prosecution by criminal complaint would have been listed as one of the alternatives in Rule 505.

By our discussion, we do not mean to say that the filing of a criminal complaint, at any time, will automatically render Rules 504 and 505 inapplicable. (See People v. Mears.) But, when a criminal complaint is filed with a traffic ticket the day after the alleged offense and issuance of the ticket, we see no reason to treat the case any differently from a traffic case which is prosecuted by a criminal complaint alone. Consequently, Rule 505 does not compel dismissal of the charge of driving while intoxicated.

The State next argues that the remaining charges of failure to reduce speed to avoid an accident and driving in violation of a restricted permit should be treated under the “factors beyond the State’s control” exception, in that it is claimed that defendant’s hospitalization prevented compliance with Rule 505. It should be remembered that no complaints were filed on these charges. We do not consider this argument, because we believe that the purpose of Rules 504 and 505 suggests a third exception to those rules.

According to the People, the two remaining offenses “were so closely related” to the offense of driving while intoxicated that the joinder of all offenses would be required. (Ill. Rev. Stat. 1979, ch. 38, par. 3 — 3(b).) And, since Rules 504 and 505 were enacted specifically to prevent multiple appearances in traffic cases (see People v. Mears), it is argued that to apply Rules 504 and 505 to two of the three charges in this case would set a precedent which would encourage, if not compel, multiple appearances in other cases like this.

We are persuaded by this argument. It is a necessary corollary to the “prosecution by complaint” exception that if multiple charges arising from the same incident or occurrence include a charge which is prosecuted by a criminal complaint, then Rules 504 and 505 do not apply to the entire case. Were this otherwise, the State could file a complaint on fewer than all of the traffic charges and request multiple trials to comply with the Rules. Ill. Rev. Stat. 1979, ch. 38, par. 3 — 3(c).

The disposition timetable established by Supreme Court Rules 504 and 505 does not govern this case. Therefore, we affirm the judgment of the Circuit Court of Madison County.

Affirmed.

JONES and KASSERMAN, JJ„ concur.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BYRON K. RAYFORD, Defendant-Appellant.
    Fifth District
    No. 80-476
    Opinion filed February 8, 1982.

      John H. Reid and Randy E. Blue, both of State Appellate Defender’s Office, of Mt. Vernon, and Rebecca Ann Whittington, research assistant, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Martin N. Ashley, of State’s Attorneys Appellate Service Commission, and Nancy G. Easum, research assistant, of counsel), for the People.
   PER CURIAM:

The defendant, Byron Rayford, was convicted by the Circuit Court of St. Clair County sitting without a jury of attempted murder, armed robbery, and armed violence. Defendant received concurrent sentences of 12 years on the attempted murder conviction and 10 years on the other convictions.

Defendant initially contends that his conviction for armed violence, which was based upon aggravated battery, should be vacated, because enhancement and prosecution under article 33A of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, art. 33A) are not permissible where the predicate felony contains its own enhancement provision. Alternatively, defendant contends that his conviction for attempted murder should be vacated because it is a lesser included offense of armed violence for which defendant was also convicted. The armed violence count of the indictment charged:

“COUNT III
That on the 1st day of January, 1980 in said County BYRON K. RAYFORD committed the offense of ARMED VIOLENCE in that THE SAID DEFENDANT, WHILE ARMED WITH A
DEADLY WEAPON, A PISTOL, A CATEGORY I WEAPON, PERFORMED ACTS PROHIBITED BY ILLINOIS LAW, TO WIT, AGGRAVATED BATTERY, IN VIOLATION OF CHAPTER 38, SECTION 12 — 4bl, ILLINOIS REVISED STATUTES, IN THAT HE, IN COMMITTING A BATTERY, IN VIOLATION OF CHAPTER 38, SECTION 12 — 3, ILLINOIS REVISED STATUTES, INTENTIONALLY WITHOUT LEGAL JUSTIFICATION CAUSED BODILY HARM TO ANTHONY NELSON, IN THAT HE SHOT ANTHONY NELSON WITH A GUN in violation of Paragraph 33 A — 2 Chapter 38, Illinois Revised Statutes.”

The evidence adduced at trial can be concisely stated. Defendant was the occupant of an automobile. The driver stopped to purchase gasoline and cigarettes. During the stop, defendant, while armed with a gun, entered the gas station building, demanded money, and after the attendant placed the money on a table shot the attendant in the area of his stomach.

Defendant cites People v. Cazares (1980), 86 Ill. App. 3d 612, 408 N.E.2d 258, for the proposition that attempted murder is a lesser included offense of armed violence. Our supreme court, however, has recently ruled that when the armed violence conviction, as in the case at bar, is based upon the underlying felony of aggravated battery, which does not require proof of intent to kill necessary for an attempted murder conviction, attempted murder is not a lesser included offense of armed violence. (People v. Myers (1981), 85 Ill. 2d 281, 422 N.E.2d 620.) The case at bar does present a question of whether defendant’s behavior, under the doctrine of People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, cert, denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273, can support convictions and concurrent sentences for attempted murder and armed violence based on aggravated battery. Prejudice results to the defendant in those instances where more than one offense is carved from the same act. (People v. King; People v. Myers.) In the case at bar, the record establishes that both convictions arose from the same act — the firing of one bullet into the body of the victim; therefore, one of the convictions must be vacated. Attempted murder and armed violence are Class X felonies. (Ill. Rev. Stat. 1979, ch. 38, pars. 8 — 4(c)(1) and 33A — 3(a).) The State, in exercising its prosecutorial discretion wishes to pursue the attempted murder conviction (see People v. Schultz (1979), 73 Ill. App. 3d 379, 392 N.E.2d 322); therefore, the conviction and sentence for armed violence are vacated.

Defendant’s final contention of error is that his sentences are so excessive that an abuse of discretion has occurred. When sentencing a defendant, the trial judge must balance the protection of society and the possible rehabilitation of the offender. (People v. Belcher (1980), 92 Ill. App. 3d 237, 415 N.E.2d 1120.) It is not the function of reviewing courts to serve as sentencing courts, and they cannot substitute their judgment for that of the trial judge merely because they would have balanced the appropriate factors differently. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) Absent an abuse of discretion, the trial court’s sentence will not be altered on review. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) The presentence report reveals that defendant is 21 years of age, was convicted of burglary in 1977, and has been employed by St. Mary’s Hospital, East St. Louis, Illinois, since September 11,1978, except for the period in which he was infected with hepatitis. At the sentencing hearing, a nurse and a unit supervisor of the psychiatric unit at St. Mary’s Hospital testified to defendant’s exemplary work habits. In sentencing defendant, the court specifically found that the defendant has a prior history of criminality, that defendant’s conduct inflicted serious harm upon another, and that a sentence is necessary to deter defendant and others from the commission of like offenses. The trial court specifically found that the victim did nothing to provoke the defendant; therefore, we cannot say, considering the nature and circumstances of the offense, that the court abused its discretion in sentencing, particularly because of the senseless shooting of the victim after he had complied with defendant’s demands for money. People v. Torres (1981), 100 Ill. App. 3d 931, 427 N.E.2d 329.

It is therefore ordered that the judgment of the Circuit Court of St. Clair County is affirmed in part and vacated in part.

Finding that oral argument would be of no assistance to the court in reaching its conclusion, we have taken the case under advisement without oral argument pursuant to Supreme Court Rule 352(a) (73 Ill. 2d R. 352(a)).

Affirmed in part; vacated in part.

KASSERMAN and HARRISON, JJ., took no part in the consideration or decision of this case.


author: JUSTICE JONES

text:
    FRANK PUTZ, Plaintiff-Appellant, v. WARREN J. SCHULTE et al., d/b/a McCandless-Schulte Development Company, Defendants-Appellees.
    Fifth District
    No. 80-519
    Opinion filed February 11, 1982.
    Gomric, Kurowski & Donovan, of Belleville (John J. Kurowski, of counsel), for appellant.
    James W. McRoberts, Jr., of McRoberts, Sheppard, McRoberts & Wimmer, P. C., of East St. Louis, for appellees.
   JUSTICE JONES

delivered the opinion of the court:

The sole issue presented in this appeal is whether the trial court had jurisdiction to enter a post-judgment order expunging from its judgment a provision that defendants were to refund to plaintiff a deposit of $3000 made upon a real estate purchase agreement. We are asked to re-examine the holding of this court in Stotlar v. Stotlar (1977), 50 Ill. App. 3d 790, 365 N.E.2d 1097, that a party who seeks post-judgment relief must file a post-trial motion within 30 days after entry of the judgment, or within a court-authorized extension thereof, and that the time for filing of the post-trial motion is not extended by the timely filing of a post-trial motion by another party.

The action was for specific performance of a contract for the sale of real estate. A trial was had before the court sitting without a jury. On April 12,1979, the court entered judgment for the defendants on plaintiff’s suit for specific performance but included in the judgment a proviso that defendants were to return to plaintiff his $3000 down payment. On May 11, 1979, 29 days following entry of judgment, the plaintiff filed a post-trial motion seeking relief from the judgment for defendants on the issue of specific performance. On May 25,1979, 43 days following entry of the judgment, the defendants filed a post-trial motion seeking relief from the judgment directing the return of the $3000 down payment. On May 31, 1979, the plaintiff filed a motion to strike defendants’ post-trial motion because it was not timely filed. On the same day the court denied plaintiff’s post-trial motion, reserved ruling on plaintiff’s motion to strike defendants’ post-trial motion and called for briefs. On August 31, 1979, the court denied plaintiff’s motion to strike defendants’ post-trial motion, relying upon City of DeKalb v. Anderson (1974), 22 Ill. App. 3d 40, 316 N.E.2d 653. On October 22,1980, the court granted defendants’ post-trial motion. Plaintiff now appeals the May 31, 1979, order of the trial court denying his motion to strike defendants’ post-trial motion and the October 22, 1980, order granting defendants’ post-trial motion. We find that the trial court had lost jurisdiction to consider defendants’ late-filed post-trial motion and, accordingly, reverse the two orders which are appealed.

Section 68.3(1) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 68.3(1)) states:

“In all cases tried without a jury, any party may, within 30 days after the entry of the judgment or within any further time the court may allow within the 30 days or any extensions thereof, file a motion for a rehearing, or a retrial, or modification of the judgment or to vacate the judgment or for other relief.”

In Stotlar v. Stotlar (1977), 50 Ill. App. 3d 790, 365 N.E.2d 1097, a divorce case, both the husband and the wife sought post-trial relief from the decree entered by the trial court. The wife’s post-trial motion was timely filed, that is, filed within 30 days after entry of the decree. The husband’s post-trial motion was not filed until 130 days following entry of the decree. The trial court granted the wife’s motion to strike the husband’s post-trial motion for the reason that it was not timely under section 68.3 of the Civil Practice Act. On appeal the husband contended that the trial court erred in striking his post-trial motion; he argued that the trial court had discretion and power, which it abused, to allow his post-trial motion by considering it as amendatory of or supplementary to the timely filed post-trial motion of his wife. The defendant husband relied on two cases, principally City of DeKalb v. Anderson. We held the action of the trial court in dismissing the husband’s late-filed post-trial motion proper, saying:

“Those cases do not suggest that a party may choose to ignore the time provision of section 68.3 and rely upon the diligence of his opposing party in complying with the rule to provide him with extra time to consider grounds for post-trial relief by filing a motion which is ‘amendatory’ or ‘supplementary’ to his adversary’s motion. In both of these cases, the party whose motion, made after the 30-day period, was considered as an amendment or supplement had filed a timely post-trial motion in the first instance, and the subsequent motion was considered as amending his own prior motion. This is certainly not the situation here. Consequently, we find that Dr. Stotlar’s post-trial motion was properly denied as not being timely filed.” Stotlar v. Stotlar (1977), 50 Ill. App. 3d 790, 794-95, 365 N.E.2d 1097, 1100-01.

Defendants now urge us to decline to follow Stotlar and instead to follow City of DeKalb by permitting the filing of a post-trial motion after the expiration of the 30 days prescribed by section 68.3 whenever another party to the action has timely filed a post-trial motion. They argue that “if a motion is filed within that 30-day period ‘for a rehearing, or a retrial, or modification of the judgment or to vacate the judgment or for other relief,’ the trial court retains jurisdiction of the judgment beyond the 30-day period until he rules on the motion.”

The City of DeKalb case can be of no avail to defendant because the court there made it plain that its result was premised upon the fact that both parties had timely filed a post-trial motion. “Under such circumstances,” the court said, “we are of the opinion that until the last timely filed post-trial motion has been passed upon, the court retains complete jurisdiction over the final order under attack to rectify any errors that may have been brought to its attention.” DeKalb was concerned with section 68.1(3) of the Civil Practice Act, applicable to cases tried by a jury. While our concern in the case at bar is with section 68.3, applicable to cases tried without a jury, the prescriptions of filing time for post-trial motions are the same. Court decisions interpreting applications of the parallel statutes are mutually supporting as authority.

We think the dissent in the DeKalb case points up the narrowness of the decision and shows it to be in accord with our holding in the case at bar.

“The majority opinion agrees that a successive post-trial motion filed beyond the 30 days does not continue the jurisdiction of the trial court (see Deckard v. Joiner (1970), 44 Ill. 2d 412; In re Estate of Schwarz (1965), 63 Ill. App. 2d 456; Weaver v. Bolton (1965), 61 Ill. App. 2d 98). But it apparently assumes that defendants may properly file or reinstate post-trial motions after 30 days from the July 10 judgment which could otherwise not be considered, due to the fortuitous circumstance that another party has a timely post-trial motion pending. Section 68.1(3) of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 68.1(3)), however, provides that post-trial motions must be filed within 30 days after entry of judgment or within any further time the court may allow within the 30 days or extensions thereof. There is no exception evident to this rule of procedure that because one party has timely filed his post-trial motion, others need not do so. (Pruitt v. Motor Cargo, Inc. (1961), 30 Ill. App. 2d 222; Rosenberg v. Stern (1898), 77 Ill. App. 248, affd, 177 Ill. 437.)” City of DeKalb v. Anderson (1974), 22 Ill. App. 3d 40, 44, 136 N.E.2d 653, 657 (dissent of Mr. Justice Seidenfeld).

Our interpretation of the DeKalb case was adopted in Jurgens v. Eads (1978), 67 Ill. App. 3d 52, 383 N.E.2d 1003.

In Pruitt v. Motor Cargo, Inc. (1961), 30 Ill. App. 2d 222, 173 N.E.2d 851, six plaintiffs sought to appeal from an adverse verdict in a personal injury action. Only one, Oda Harris, timely filed a post-trial motion. Other plaintiffs filed a post-trial motion nine days after the expiration of the prescribed 30-day period. By an order entered after the 30-day period, the trial court certified that the late-filing plaintiffs were included in the timely filed post-trial motion of Oda Harris. The arrangement was rejected:

“From the foregoing, it is clear that Oda Harris was the only one of the plaintiffs who filed his post trial motion and his notice of appeal within the time allowed by statute and the rules of court. The trial court in a generous effort to preserve the right of appeal of the other plaintiffs, entered the confusing orders referred to, but this was in violation of the provisions of the act as interpreted by the Supreme and Appellate courts as we later show.” Pruitt v. Motor Cargo, Inc. (1961), 30 Ill. App. 2d 222, 226-27, 173 N.E.2d 851, 853.

We do not believe our perception of the rule requiring each party to file his post-trial motion within 30 days (or such extension as may be allowed by the court upon motion filed within 30 days) after entry of the judgment sought to be attacked or appealed is unduly technical.

“It is true, as plaintiffs have urged, that the courts of this state are loath to deny an appeal on the basis of a failure to comply with technical requirements. But both legislature and courts have recognized that this policy should not be pursued to the point where the stability of judgments is impaired. In only a small percentage of cases are the processes of appeal invoked, and if terminal dates were not fixed and observed, all judgments would be subjected for an indefinite period to challenge by post trial procedures.” Pruitt v. Motor Cargo, Inc. (1961), 30 Ill. App. 2d 222, 227, 173 N.E.2d 851, 853.

The rationale for defendants’ position is that once any party files a post-trial motion in a timely manner the jurisdiction of the court over that case is preserved for all purposes, including the filing of a post-trial motion more than 30 days after entry of the judgment sought to be attacked or appealed. The rationale and the rule it fosters are not without attraction, especially in a two-party case. Nevertheless, the argument must be unavailing. The statute (Ill. Rev. Stat. 1979, ch. 110, par. 68.3) makes no exceptions to the 30-day requirement, and the orderly disposition of cases at the post-trial stage in the trial court, and at the appellate stage, compels strict adherence to the requirement of the statute.

The effect of permitting the late filing of defendants’ post-trial motion would be a stacking of 30-day periods for permissible filing. Such measures would lead to a host of problems and wreak havoc with post-trial procedure and the appellate process. To give but one instance, in cases involving multiple parties, or complex litigation, successive filings of post-trial motions, in effect, a stacking of permissible filing intervals, could bring about lengthy delay and uncertainty. Finality would be elusive and courts would all but lose control of their proceedings. Such a circumstance, a definite possibility under the rule advocated by the defendants, was neither the intent nor purpose of section 68.3.

Defendants call our attention to In re Marriage of Parello (1980), 87 Ill. App. 3d 926, 409 N.E.2d 461, and Welch v. Ro-Mark, Inc. (1979), 79 Ill. App. 3d 652, 398 N.E.2d 901, which arguably support their position. These cases seem to stand for the proposition that until a timely filed post-trial motion is disposed of, a trial court retains jurisdiction of the case to amend the judgment upon his own motion although the subject of his amendment was not presented in the post-trial motion. If we err in our assessment of these cases, then we can only observe that the facts presented in them did not engender full consideration of the problem we have considered in the case at bar. In any event, there is nothing in those cases that would dissuade us from adhering to the rule of Stotlar v. Stotlar.

For the foregoing reasons we reverse the orders of the trial court which denied plaintiff’s motion to strike defendants’ late-filed post-trial motion and which granted defendants’ post-trial motion.

Reversed.

KARNS, P. J., and KASSERMAN, J., concur.


author: JUSTICE JONES JUSTICE WELCH,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALROY J. GRACEY, JR., Defendant-Appellant.
    Fifth District
    No. 80-198
    Opinion filed February 19, 1982.
    John H. Reid and John W. McGuire, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Donald W. Weber, State’s Attorney, of Ed wards ville (Martin N. Ashley and Stephen E. Norris, both of State’s Attorneys Appellate Service Commission, and Robert C. Cook, research assistant, of counsel), for the People.
   JUSTICE JONES

delivered the opinion of the court:

Defendant, Alroy J. Gracey, Jr., appeals his conviction of the crime of murder entered by the circuit court of Madison County after a trial by jury. On appeal defendant raises several related issues, but in view of our disposition we need only determine whether defendant was deprived of fundamental fairness because of the restrictions placed upon his defense.

The events giving rise to the murder charge occurred during the late evening hours of November 1, .1979, and the early morning hours of November 2, 1979. It was undisputed that defendant and the decedent, Terry Stockman, had been together at the same tavern only a short time before decedent was found shot to death in his car outside the tavern, and that both men had been drinking heavily during the evening. It was also undisputed that a bullet lodged inside the passenger door of the car in which decedent was found matched test firings from a gun found in defendant’s home pursuant to a search warrant.

In view of the fact that both men had consumed substantial amounts of alcohol, and in view of evidence to suggest that decedent may have threatened both defendant and defendant’s son, the case presented several potential defense-related issues. Accordingly, very early in the proceedings, even prior to the time it furnished discovery to the defense, the prosecution requested a disclosure of any defenses which would be used at trial. Defense counsel’s written reply, filed only 24 days after the shooting, stated:

“The Defendant not being schooled in law, does not know what defenses will be made at the trial or hearing, but that whatever defense or defenses are determined upon by his attorney in the analyzing of the facts and reports as hereafter to be provided by the State will be utilized.”

Defense counsel never filed an additional written response concerning defenses that would be raised and his initial oral response during an early pretrial hearing was similarly ambiguous. At that time the following colloquy took place:

“PROSECUTOR: Additionally, Your Honor, I would ask * * * whether or not any affirmative defenses would be presented * * * [but] the burden of proof is not an affirmative defense.
DEFENSE COUNSEL: That is his defense that he didn’t shoot the man.
PROSECUTOR: You don’t have an alibi or anything like that?
DEFENSE COUNSEL: By alibi, that he was somewhere else?
PROSECUTOR: Yes.
DEFENSE COUNSEL: He was nowhere else.”

A month before trial defense counsel received an amended pathologist’s report which indicated that the path of the bullet through decedent’s head was from left to right rather than right to left as originally reported. Despite the fact that this information corroborated the State’s theory that defendant shot decedent while standing outside the driver’s side of decedent’s car, defense counsel failed to change his position that defendant’s only defense was the State’s inability to sustain its burden of proof. At a subsequent hearing occurring only two weeks before trial, the following exchange took place:

“PROSECUTOB: The only thing I have, Your Honor, is I don’t anticipate filing any other charges * 0 * because at this time I understand the defense is the State cannot prove beyond a reasonable doubt or something of that nature. If there were to be the defense of manslaughter or something like that, I may consider filing other charges. But as far as I know and I have no written confirmation but that the defense is that the State cannot prove it beyond a reasonable doubt. Is that correct?
DEFENSE COUNSEL: Yes.
PROSECUTOR: I don’t intend on filing any more Informations, Your Honor.”

The case proceeded to trial and, at the close of the State’s case, the prosecution filed a motion pursuant to Supreme Court Rule 415 (73 Ill. 2d R. 415) for an order precluding the defense from raising affirmative defenses at trial as a sanction for their failure to disclose such defenses during discovery.

Defense counsel argued that the State had been apprised of potential defenses by a transcript of defendant’s statement while under hypnosis, which indicated the possibility of intoxication and justification defenses. The court, however, granted the motion for sanctions and barred defendant from presenting evidence on any affirmative defense “except as allowed as to manslaughter and intoxication.” Defendant was subsequently allowed to present evidence on the issues of intoxication and justifiable use of force; however, in view of the sanctions imposed, the court refused to instruct the jury concerning the affirmative defenses of self-defense and intoxication.

We agree with the trial court that, although the State may have been made aware of potential issues by the discovery process, defense counsel failed to satisfy his duty to inform the State that those issues would in fact be raised. (See 73 Ill. 2d R. 413(d).) It cannot be seriously contended that the hypnosis transcript provided to the State constituted the type of notice contemplated by Rule 413(d), and we therefore find no fault with the actions taken at trial by either the trial court or the prosecution. As a result we are faced with the unenviable task of determining whether there was such a strong indication that affirmative defenses were warranted in this case that conducting a trial without affording the defendant the benefit of those defenses was a per se denial of fundamental fairness.

The record demonstrates that the prosecutor went out of his way to afford defense counsel every opportunity to give notice of affirmative defenses as required by Supreme Court Rule 413(d) (73 Ill. 2d R. 413(d)) in order that defendant’s right to raise these claims at trial might be preserved. The pretrial discovery process undeniably alerted the prosecutor to the fact that defendant had consumed a large quantity of alcohol on the night in question and to the fact that the victim had a reputation for and a history of violence, which included the stabbing of a police officer only a few months previously. It cannot be seriously questioned that the prosecutor was aware of the possibility that intoxication and self-defense might become issues in the case, but even so, once defense counsel had declined every opportunity to raise these issues, the prosecutor could do nothing more than prepare his trial strategy accordingly. While defense counsel’s neglect to raise certain defenses may prevent defendant from asserting any defense at all, and could in the process deny him fundamental fairness, it is not the duty of the prosecutor to raise and refute defenses which he believes should be made by the attorney for the defendant.

Similarly, it would be difficult to criticize the trial judge for imposing sanctions pursuant to Supreme Court Rule 415 when the State had gone to trial without notice that affirmative defenses were an issue in the case. If, at the end of the State’s case, the prosecutor were all but forced to reopen its case, or to amend the pleadings to include a lesser included offense, the State would be made to appear as though it were admitting to the jury that it believed its case was weak. That would certainly be the type of “trial by ambush” that the trial court correctly sought to avoid. In light of defense counsel’s repeated statements prior to trial indicating that no affirmative defenses would be raised, we do not believe the trial court erred in finding a “flagrant” violation of discovery rules which warranted the preclusion of affirmative defenses in this case. See People v. Rayford (1976), 43 Ill. App. 3d 283, 356 N.E.2d 1274. Cf. People v. Short (1978), 60 Ill. App. 3d 640, 377 N.E.2d 389, where the exclusion of defendant’s alibi witness due to defendant’s failure to inform the State of the alibi defense prior to trial was held to be a proper sanction. See also People v. Braxton (1980), 81 Ill. App. 3d 808, 401 N.E.2d 1062.

Defense counsel in the case at bar acknowledged to the court that his failure to disclose the affirmative defenses to the State was the result of his own misunderstanding. It is apparent that counsel’s mistake greatly prejudiced defendant, as it effectively precluded defendant from presenting the defenses available to him. Information disclosed during the discovery process and at trial raised serious questions concerning defendant’s sobriety and the decedent’s reputation for and history of violent behavior. Several witnesses testified as to defendant’s drinking prior to the shooting, and defendant himself stated that he had had between 18 and 21 drinks in the previous 8-hour period. There was also considerable evidence that the decedent had threatened to “do in” defendant and his son the night of the shooting and that defendant believed the decedent had a gun with him in his car that night. The importance ascribed to these potential issues by the trial court is evidenced by the care with which it made its sanctions ruling. While the court ruled that the jury would not be instructed on intoxication or self-defense in view of defense counsel’s failure to notify the State of these affirmative defenses, the court did allow evidence on these issues to go before the jury without their attendant instructions. The court gave its reasoning for this somewhat asymmetrical ruling by stating that “both the amount that [defendant] may have consumed in the way of alcoholic beverages and what his state of mind was, with regard to the victim, are both very much a part of this case, and I feel that if I deny him the right to [present evidence] on those matters I would deprive him of any adequate defense.”

We agree with the trial court that denying defendant an opportunity to present these issues would be tantamount to denying him any defense at all. However, simply presenting evidence on these points was not sufficient to give defendant an adequate defense because the jury was not instructed as to the legal significance of any findings it might make based on this evidence. (See People v. Peeler (1973), 12 Ill. App. 3d 940, 299 N.E.2d 382.) The tension in the trial court’s ruling which arose as it saw omissions in the presentation of defendant’s case is apparent from a reading of the transcript. The court made every effort to uphold the integrity of the discovery statute while affording defendant an opportunity to develop his case fully. Nevertheless, the charge against defendant is a serious one, with large stakes for defendant and therefore for society at large. Thus, we cannot disregard the effect of these omissions in making our decision.

Our review of the record convinces us that defense counsel’s failure to comply with the discovery provisions of Rule 413(d) resulted in the imposition of sanctions which effectively deprived defendant of his right to a fair trial. Because of the extensive evidence indicating possible intoxication and justification defenses, we feel that exclusion of these defenses produced substantial prejudice to the defendant and that his conviction, without the opportunity to present an adequate defense, represents a possible miscarriage of justice. Accordingly, we find that defendant is entitled to a new trial at which the jury will be allowed to determine the merits of his affirmative defenses.

Reversed and remanded.

KASSERMAN, J., concurs.

JUSTICE WELCH,

specially concurring:

I am not convinced that the defendant was prejudiced by the failure of the trial court to instruct the jury on the affirmative defenses of voluntary intoxication and self-defense. There was little evidence to suggest that the defendant was so intoxicated as to negate the intent to commit murder (People v. Proper (1979), 68 Ill. App. 3d 250, 385 N.E.2d 882), and certainly not enough evidence was presented to render the refusal to instruct on that defense reversible error. (People v. Jones (1972), 5 Ill. App. 3d 926, 284 N.E.2d 404.) Moreover, the affirmative defense of self-defense was not available to the defendant because he did not admit that he shot the deceased. (People v. Joyner (1972), 50 Ill. 2d 302, 278 N.E.2d 756; People v. Lahori (1973), 13 Ill. App. 3d 572, 300 N.E.2d 761.) However, the discovery sanctions imposed by the trial court denied the defendant a fair trial in another way.

The defendant requested that the jury be instructed that he could be found guilty of voluntary manslaughter if he acted in the belief that force was necessary to protect himself, but that belief was unreasonable. (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 2(a).) Although the trial court instructed the jury on the “provocation” form of voluntary manslaughter (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 2(b)), it refused the defendant’s instructions pertaining to the unreasonable belief that force was necessary. The court stated that these instructions were intended to be coupled with those on the affirmative defense of self-defense, which had been excluded as a discovery sanction.

In taking this action, the trial court imposed a discovery sanction which did not relate to the defendant’s failure to disclose his affirmative defenses. Because the case law in this State requires that these voluntary manslaughter instructions be given when even minimal evidence is introduced on the defendant’s belief that the use of force was necessary (People v. Lockett (1980), 82 Ill. 2d 546, 413 N.E.2d 378; People v. Joyner), the defendant was denied a fair trial when the jury was not instructed on this issue. For these reasons, I concur in the result reached by the majority.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE HARRELL, JR., Defendant-Appellant.
    Fifth District
    No. 80-454
    Opinion filed February 19, 1982.

      John H. Reid and John W. McGuire, both of State Appellate Defender’s Office, of Mt. Vernon, and Arthur P. Brock, law student, for appellant.

      John Baricevic, State’s Attorney, of Belleville (Martin N. Ashley and Stephen E. Norris, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WELCH

delivered the opinion of the court:

In the evening of April 15, 1980, Sandra Antoff went shopping at the K-Mart Store in Cahokia, Illinois. She left the store at about 8:45 p.m. and walked to her car, which was located in the K-Mart parking lot, about three parking spaces from the store. It was dark outside, but the lot was illuminated by several streetlights, one of which was located one or two parking spaces away from Ms. Antoff’s automobile.

She placed her packages in the back seat of the car, and, after she had inserted the keys into the ignition, but before she was able to enter the car completely, she heard a man call “Hey ma’am?” Ms. Antoff glanced around the parking lot and discovered that the man was addressing her. He walked up to her and stood within two feet of her, positioned so that she could not shut the driver’s door of her car.

The man asked Ms. Antoff if she had seen his car, and he gave her a description of the vehicle. She told him that she had not seen it, and he replied that it must have been stolen, and requested that she give him a ride. She did not oblige and suggested that he report the incident to the police. Ms. Antoff repeatedly informed the man that she was in a hurry to pick up her daughter, but he refused to leave and instead motioned for another man to come to the car from a nearby fried chicken restaurant. The first man asked the second man if the keys had been left in his car, and when the second man replied in the affirmative, the first man said, “No wonder it is stolen then.”

The second man, who was standing on the passenger side of Ms. Antoff’s car, told the first that it would be “okay” if Ms. Antoff wanted to give the first man a ride, but he would wait for him at the chicken restaurant. The second man returned to the restaurant, and the first bent down, rubbed his stomach, told Ms. Antoff that he had just had surgery, and then drew a pistol. He told her not to say anything, and to move into the passenger’s seat.

Ms. Antoff stalled until she saw a K-Mart employee, Tim Jones, walk across the lot. She called out to Jones that the man had a gun and intended to kill her. Jones, who was approximately 30 feet away, saw the man point a pistol at him, so he put his hands up and kept walking. Ms. Antoff then pushed her assailant and ran toward a group of youths on a nearby sidewalk. The man drove off in her car.

At this time, Ms. Antoff reported the incident to the police and a radio dispatch was sent out. Cahokia police officer Richard Watson picked up the dispatch and upon seeing the vehicle go past him gave pursuit. The driver pulled over to the side of the road, got out of the car and started to run. Watson turned his spotlight on the individual when he was about 100 yards from him, then gave chase on foot but was unable to catch him. The vehicle was dusted for prints, towed and processed. No fingerprints were found and no gun was recovered.

The following day, upon learning that he was wanted by the police, the defendant reported to the Centreville Police Department, where he was taken into custody by the Cahokia Police Department around 3:30 p.m. and arrested for armed robbery. Later that day, a group of nine photographs, including one of the defendant, was shown separately to Sandra Antoff and Officer Watson. Cahokia detective Charles Sharp told Ms. Antoff before she viewed the photographs that they had a suspect in the case and that his photograph was one of the nine. According to his later testimony, he may have told her that they had two suspects. She examined the first five pictures and stopped, stating that the suspect depicted in that photograph was her assailant. The defendant’s picture was the fifth in the array. Detective Sharp did not remember whether she was informed that she had chosen their suspect. Ms. Antoff later testified that she did not know whether the suspect in the group had been picked up.

When Detective Sharp showed Officer Watson the array, he told him that a suspect’s photograph was included in the array. From this group Watson selected photograph 5, which was the defendant’s, and photograph 9 as looking most like the man he saw flee the car on the previous evening. Photographs 5 and 9 differed from the other pictures in that all four edges were straight, while three of the remaining seven pictures had one serrated edge, and the last four had two serrated edges. When Officer Watson stated that he was not definite about which picture belonged to the man he had seen, Detective Sharp told him that the suspect was featured in photograph 5.

On the morning of April 17, Detective Sharp informed the defendant, who had remained at the Cahokia police station overnight, that a lineup was going to be conducted. Sharp suggested that the defendant contact an attorney, and, as the defendant later testified, he called his attorney, Gary Apoian. According to the defendant, he was unable to speak to Apoian because he was said to have been on vacation. But, Sharp testified that after the defendant placed the phone call, he said that his attorney advised him to participate in the lineup. At a motion to suppress the defendant’s pretrial identification, attorney Apoian was never called to verify or contradict the defendant’s statement.

The defendant was then taken to the St. Clair County jail, where Sharp again stated that he could not refuse to be in the lineup, but that he could have an attorney present during that procedure. The defendant responded that he understood. A lineup was conducted in the mid-afternoon at the St. Clair County jail, as suggested to Sharp by a St. Clair County assistant State’s Attorney earlier that day when Sharp had gone to the St. Clair County courthouse in an unsuccessful attempt to obtain an arrest warrant. Both Ms. Antoff and Officer Watson selected the defendant from the six men in the lineup.

Also on April 17, a criminal complaint was filed charging the defendant with armed robbery, and an arrest warrant was issued. It is not obvious from the record at what precise hour these documents were filed. The defendant moved to suppress all evidence pertaining to his pretrial identification, and following an evidentiary hearing, this motion was denied on July 1, 1980. After a jury trial on July 28, the defendant was found guilty of armed robbery and sentenced to 12 years’ imprisonment. He appeals only from his conviction and argues that (1) he was denied his right to counsel at the lineup, (2) the pretrial identification procedures resulted in a denial of due process, and (3) the evidence introduced at trial was insufficient to prove him guilty of armed robbery rather than theft.

In support of his first argument, the defendant claims that he was entitled to counsel at the lineup under the authority of Kirby v. Illinois (1972), 406 U.S. 682, 32 L. Ed. 2d 411, 92 S. Ct. 1877, and People v. Burbank (1972), 53 Ill. 2d 261, 291 N.E.2d 161, cert, denied (1973), 412 U.S. 951, 37 L. Ed. 2d 1004, 93 S. Ct. 3017. The defendant interprets Kirby and Burbank as giving rise to a right of counsel at any time that “the adverse positions of government and defendant have solidified.” (406 U.S. 682, 689, 32 L. Ed. 2d 411, 418, 92 S. Ct. 1877, 1882.) In this case, according to the defendant, such a “solidification” of positions took place when an assistant State’s Attorney became involved in the case on the morning of April 17 by suggesting that a lineup be held.

To this argument the People rely, and we believe correctly, that the reference in Kirby to “solidification” of adversarial positions was intended only as an explanation of the specific rule that the right to counsel at a lineup attaches when adversary judicial criminal proceedings have been initiated against the defendant, “by way of formal charge, preliminary hearing, indictment, information, or arraignment” (406 U.S. 682, 689, 32 L. Ed. 2d 411, 417, 92 S. Ct. 1877, 1882), or, as the Illinois Supreme Court has stated, “by whatever means.” (53 Ill. 2d 261, 272, 291 N.E.2d 161, 167.) This last phrase, used in Burbank, was employed to show that the list of proceedings in Kirby is not exclusive. It does not dispense with the need for judicial proceedings as a prerequisite to the right to counsel, and in absence of any authority granting a defendant the right to counsel at a lineup conducted at an earlier stage than that mentioned in Kirby and Burbank, we decline to expand those cases. People v. Shorter (1978), 59 Ill. App. 3d 468, 375 N.E.2d 513.

At the hearing on the motion to suppress pretrial identification, Detective Sharp stated that on April 17, he first spoke to the defendant at about 9 a.m. They then went to the State’s Attorney’s office, where no warrant was obtained, and they returned to the Cahokia police station. Finally, Sharp took the defendant from the station to the St. Clair County jail and the defendant participated in two lineups, at 2 p.m. and 3 p.m. Sharp swore out a criminal complaint against the defendant, dated April 17, and an arrest warrant also issued that day. Based upon this testimony, uncontradicted by the defendant, it is not apparent whether the two judicially approved documents were obtained before or after the lineups. Since we cannot presume the existence of error which is not affirmatively shown of record (People v. Thorpe (1977), 52 Ill. App. 3d 576, 367 N.E.2d 960), we must resolve the silence of the record against the appellant. (People v. Hamilton (1978), 64 Ill. App. 3d 276, 381 N.E.2d 74.) The filing of a complaint and issuance of an arrest warrant against the defendant must therefore be treated as having occurred after the lineups. Thus, no adversary judicial proceedings had been instituted, and no right to counsel at the lineups had attached. For these reasons, the defendant’s sixth amendment rights were not violated, and we need not discuss whether he acted to waive those rights.

Next, the defendant attacks the photographic and lineup identification procedures as unnecessarily suggestive and conducive to mistaken identification. The People concede that, given his limited opportunity to view the driver of Ms. Antoff’s car and his possible familiarity with the Cahokia Police Department’s photographic equipment, Officer Watson’s identification of the defendant could have been unnecessarily influenced by the use of newer photographs 5 and 9 in the array and by the remark of Detective Sharp, after Watson could not decide between those pictures, that the suspect was shown in photograph 5. Under the parties’ view of the reliability of Officer Watson’s identification, then, we will disregard his testimony and focus on the remaining identification evidence presented at trial to determine whether the defendant was denied a fair trial by the introduction of that evidence.

In order to demonstrate a violation of due process, a criminal defendant against whom evidence of pretrial identification procedures is presented at trial must show (1) that the procedures used were unnecessarily suggestive, and (2) that those procedures contributed to a substantial likelihood of misidentification. (Neil v. Biggers (1972), 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375; Manson v. Brathwaite (1977), 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243; People v. Hamilton (1977), 54 Ill. App. 3d 215, 369 N.E.2d 377.) In this case, it is claimed that the procedures through which Sandra Antoff identified the defendant before trial were defective on both of these grounds.

The defendant first asserts that the use of a photographic array was improper because he was in custody when the array was presented to Ms. Antoff, as well as to Officer Watson. He is correct in noting that the Illinois Supreme Court has expressed disfavor with the use of a photographic method of identification when a suspect is in custody and available for a lineup. (People v. Williams (1975), 60 Ill. 2d 1, 322 N.E.2d 819; People v. Holiday (1970), 47 Ill. 2d 300, 265 N.E.2d 634.) However, these statements of disapproval do not mean either that evidence of a photographic array is inadmissible if the defendant is in custody when the array is shown or that the propriety of a photographic array must be judged by different standards, depending on whether the defendant is in custody at the time the photographs are shown. Even when the defendant is in custody, it must still be demonstrated that the array was unnecessarily suggestive and that it led to a substantial likelihood of misidentification. People v. Duarte (1979), 79 Ill. App. 3d 110, 398 N.E.2d 332; People v. Mikel (1979), 73 Ill. App. 3d 21, 391 N.E.2d 550; People v. Meredith (1976), 37 Ill. App. 3d 895, 347 N.E.2d 55.

Turning to the details of the photographic array, the defendant points to the following features which, he states, created a suggestive identification procedure: (1) As discussed earlier, seven of the nine photographs were older, and had different edges, than the other two. (2) The seven older photographs were taken against different backgrounds than those used in the new photographs. (3) The defendant’s facial features and his longer hair distinguished him from the other eight subjects in the array, and, (4) the date on the defendant’s photograph was visible, intimating that, since his picture was taken very recently, he was a suspect for the offense in question. To this last observation the People reply that all of the photographs were in plastic sleeves which were covered by a strip of masking tape to obscure the date, and the effectiveness of the tape in covering the date depended upon the position of the picture in the sleeve, which could be easily changed. We cannot find any evidence in the record to suggest that the date of the defendant’s photograph, or any other in the array, was displayed to any witness, and without such testimony, we cannot presume that that irregularity occurred.

Thus, we are left with the discrepancies in age, shape and background of the photographs, and the difference in hair length and facial features between the defendant and the other individuals in the array. Parenthetically, we observe that the difference in backgrounds between the two newer pictures and the seven older ones is that the suspect’s height is indicated in inches as well as in feet on the newer backgrounds. The People invite comparison of all of these distinguishing factors to those in other cases where the array was held to be not suggestive. For example, the defendant’s photograph was noticeably darker than the rest of the array in People v. Summers (1977), 49 Ill. App. 3d 70, 362 N.E.2d 1347, and in People v. Hudson (1972), 7 Ill. App. 3d 333, 287 N.E.2d 297, only the defendant’s picture was in color. In People v. Witted (1979), 79 Ill. App. 3d 156, 398 N.E.2d 68, the defendant’s photograph was the only one in the array without any writing on it and without two views of its subject. The defendant’s picture was larger than the rest in both People v. Hart (1973), 10 Ill. App. 3d 857, 295 N.E.2d 63, and People v. Schmitt (1981), 99 Ill. App. 3d 184, 424 N.E.2d 1267, and only the defendant’s picture was dated in Hart, while the defendant’s picture in Schmitt showed more of his torso than did the other snapshots. To this list of authority might be added People v. Johnson (1976), 43 Ill. App. 3d 649, 357 N.E.2d 151, where the defendant was the only individual depicted without a shirt, and People v. Perkins (1977), 47 Ill. App. 3d 548, 362 N.E.2d 109, in which the photographs of the co-defendants were not entirely dry when they were viewed by the victim, and were the only photographs with “irregular edges” in the group.

We agree with the People that the photographic discrepancies between pictures 5 and 9 and the rest of the array are considerably less than the discrepancies mentioned in the cases in the preceding paragraph, and thus, according to the case law in Illinois, do not render the array suggestive to Ms. Antoff, who was not shown to have been familiar with the Cahokia Police Department’s photographic equipment. Nor can we accept the defendant’s claim that the array was unfair because his hair length and facial features differed from those of the other eight subjects. It is a truism that individual facial features and hair styles and lengths differ, and this makes precise correspondence of all subjects in a photo array a practical impossibility. Complete exactitude of features is not required in a photographic identification (People v. Whitley (1977), 49 Ill. App. 3d 493, 364 N.E.2d 511), and, upon examination of the nine photographs used in this case, we cannot say that the differences between the appearance of the defendant and those of the other eight men were so significant as to demonstrate that the array was suggestive.

The defendant’s sole challenge to the corporeal lineup procedure is that, while he was 27 years old at the time of the lineup, the other five participants ranged from 17 to 19 years in age. This distinguishing factor in a lineup might be considered suggestive under other circumstances, but we do not believe that this is so in this case. As the People note, an examination of defendant’s lineup and array of photographs shows that in neither representation does he look any older than 20, and, as Ms. Antoff described her assailant as looking about 20 years old, this lineup was appropriate, if not demanded, in this case. To have placed the defendant alongside other individuals in their late twenties would have singled him out by virtue of his youthful appearance. As in the photographic array, the defendant’s appearance is not so dissimilar from the other participants to prove that the lineup could be considered suggestive,

But, argues the defendant, even if the characteristics of both the lineup and the photo array did not make either procedure suggestive, the cumulative effect of all pretrial identification was so. This is especially true, he states, given that Detective Sharp told Ms. Antoff that a suspect (or two suspects) was represented in the photo array. Although there is no impropriety in informing a witness that suspects are in custody (People v. Harrison (1978), 57 Ill. App. 3d 9, 372 N.E.2d 915; People v. Carlton (1979), 78 Ill. App. 3d 1098, 398 N.E.2d 107), it is preferable that the witness not be told that a suspect is included in a particular photo array or lineup. Nonetheless, we do not feel that Detective Sharp’s comments introduced any impermissible element of suggestion into an otherwise fair identification procedure.

However, even if we assume that the procedures employed to obtain Ms. Antoff’s identification of her assailant were impermissibly and unnecessarily suggestive, this does not necessarily mean that evidence of those procedures cannot be used at trial. If, under the well-known criteria in Neil v. Biggers (1972), 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375, a witness’ identification is “reliable,” then the use of evidence of that identification does not violate due process. (Manson v. Brathwaite (1977), 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243; People v. Levine (1981), 99 Ill. App. 3d 141, 426 N.E.2d 215.) The burden of proving reliability is upon the State. (People v. Carlton (1979), 78 Ill. App. 3d 1098, 398 N.E.2d 107.) Under the Neil v. Biggers factors, the State has discharged that burden in this case.

At the time of the robbery, Ms. Antoff was able to observe her assailant at extremely close range, and, although it was night, her observation was aided by a nearby streetlight and the dome light of her car. Her assailant remained nearby long enough to engage her in a conversation which was more involved than a simple exchange of greetings. Ms. Antoff, being the focus of the stranger’s inquiries, had a strong motive to remember the man, despite the fact that she was not a trained observer such as a police officer. Her description of this individual to the police, while confined to the characteristics of height, weight and age, was reasonably accurate. Ms. Antoff thought that the defendant was 5'7" tall and weighed 140 pounds, which is quite close to his actual height of 5'8" and weight of 145 pounds. For reasons discussed above, her reference to the defendant’s age as 20 is not an improper estimate of his appearance, and the lack of any testimony concerning her recollection of defendant’s facial features does not seem to cast serious doubt on the reliability of her identification. As has been stated on other occasions, the process of identification is one in which the observer typically notices a general impression of a person rather than specific features (People v. Dandridge (1981), 98 Ill. App. 3d 1021, 424 N.E.2d 1262; People v. Mason (1978), 61 Ill. App. 3d 918, 378 N.E.2d 384), and a lack of detail in a witness’ description is particularly insignificant where, as here, the defendant has no abnormal or distinguishing features such as facial hair, scars or other marks. People v. Hemphill (1978), 62 Ill. App. 3d 977, 379 N.E.2d 1284.

During the pretrial identification, Ms. Antoff readily selected the defendant from the nine photographs and from the six men in the lineup. Indeed, so certain was her choice of the defendant’s photograph that she felt it unnecessary to examine the rest of the array. And, finally, it should be recalled that Ms. Antoff was presented with the photographic array the day after the offense and viewed the lineup on the following day.

All of these circumstances provide ample indication of the reliability of Ms. Antoff’s identification, so that even if the lineup and photo array are considered to have been “suggestive,” the defendant cannot complain of her testimony. In combination with the testimony of Tim Jones, which, for all its weaknesses, was unaffected by the pretrial identification procedures, Ms. Antoff’s identification of the defendant is more than sufficient to support defendant’s conviction, and thus the testimony of Officer Watson constituted, at most, harmless error. The pretrial identification procedures did not, then, act to deny the defendant due process. See People v. Canity (1981), 100 Ill. App. 3d 135, 426 N.E.2d 591.

Finally, the defendant asserts that the evidence introduced at trial was insufficient to prove him guilty of robbery, as opposed to theft. He does not dispute that a threat of force was applied to Ms. Antoff, but, it is stated, there must be a causal connection between that threat of force and the acquisition of property from the victim. To provide a factual illustration of this principle, the defendant directs our attention to People v. Pack (1976), 34 Ill. App. 3d 894, 341 N.E.2d 4, and People v. King (1979), 67 Ill. App. 3d 754, 384 N.E.2d 1013.

The brief statement of facts in Pack shows that the defendant entered the house of the victim, choked her until he thought she was dead, then took money from a purse on a nearby chair and fled. In King, the victim testified that she was awakened, in her bedroom, by a man who proceeded to rape her. That man then pulled the cord on the telephone in the victim’s bedroom and told the victim not to move. After the victim called the police from another telephone, she discovered that her purse had been taken from the kitchen, which was between 15 and 30 feet away from the bedroom.

In both Pack and King, although force was used against the victims and property was taken from them, there was held to be no connection between the force and the taking of the property, and thus the evidence in neither case would support a conviction for robbery. (Compare People v. Minor (1944), 388 Ill. 436, 58 N.E.2d 21.) The defendant claims that the evidentiary flaw present in Pack and King also exists in this case, because if the threat of force had been for the purpose of stealing the car, it would have succeeded when Ms. Antoff offered the car in return for her being released unharmed. The discussion of the facts of this case, above, indicated that the defendant refused this offer. From this refusal, it is contended that the defendant had an original intent to do something involving Ms. Antoff, and, when this plan was frustrated by her flight, the defendant, as an afterthought, took the car. Therefore, the defendant concludes, the threat of force applied to Ms. Antoff was not causally connected with the subsequent taking of the car.

The defendant’s argument is clever, but its logic is unsound. The fact that the defendant abandoned his plans concerning Ms. Antoff does not imply, as the defendant suggests, that the taking of the car arose only as a later alternative to those frustrated plans. Indeed, the evidence is forceful to the contrary, that whatever the defendant’s goals were with respect to Ms. Antoff, he also intended to take her car at the time he threatened her with the use of force. As noted above, the defendant’s conversation with Ms. Antoff was, from its inception, primarily concerned with the defendant’s allegedly stolen car and with his request for a “ride.” His remarks about the presence of keys in the ignition of his car, as they were in Ms. Antoff’s car during the conversation, do not appear to have been merely coincidental. Moreover, as the People observe, there is no testimony to show that the defendant would have been satisfied solely with the abduction of Ms. Antoff. In fact, the defendant’s insistence that she “move over” to the passenger’s side of the car is additional proof that the defendant did not take the car merely as an afterthought.

The evidence introduced at trial establishes that the threat of force applied to Ms. Antoff was causally connected with the acquisition of her car by the defendant. For that reason, this case is factually distinguishable from Pack and King, and, accordingly, we affirm the judgment of the Circuit Court of St. Clair County.

Affirmed.

JONES and KASSERMAN, JJ., concur.


author: JUSTICE KASSERMAN

text:
    SHAWANA VOLKMAR, Assignee of Vernon E. Schulte, Adm’r of the Estate of Otis (Lawan) John Burns, Deceased, Plaintiff-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant.
    Fifth District
    No. 80-596
    Opinion filed February 19, 1982.
    Robert D. Francis, of Dunham, Roman & Leskera, of East St. Louis, for appellant.
    H. Carl Runge, Jr., of Runge & Gumbel, P. C., of Collinsville, for appellee.
   JUSTICE KASSERMAN

delivered the opinion of the court:

This interlocutory appeal is from the denial by the circuit court of Madison County of defendant’s motion to dismiss plaintiff’s complaint. Following the denial, this court granted defendant’s application for leave to appeal under Supreme Court Rule 308 (73 Ill. 2d R. 308). We reverse.

The record on appeal establishes the following: On February 29, 1980, plaintiff filed the complaint in the instant case in which she alleged that after she was injured in an automobile collision on June 17, 1973, she filed a prior suit against the operator of the vehicle that struck her, Otis (Lawan) John Burns, a/k/a Lawan O. Burns. Plaintiff further alleges in the case at bar that Burns’ insurer, defendant, entered into settlement negotiations with plaintiff and that plaintiff’s offer to settle within the policy limits of $25,000 was not accepted by the defendant. Plaintiff also alleges in her instant complaint that judgment was had on a Madison County jury verdict of $51,000 in plaintiff’s favor and against Burns; that $25,006.78 was paid by the instant defendant and accepted by plaintiff as partial satisfaction of such judgment; and that defendant’s failure to settle was negligent and in bad faith. Plaintiff’s complaint further avers that subsequent to entry of the judgment in her personal injury suit, plaintiff learned that Burns had died on April 28, 1974; that letters of office were issued to the Public Administrator, as administrator of Burns’ estate, by the clerk of the circuit court of Madison County; that the Public Administrator assigned to plaintiff the instant cause of action for the amount of the personal injury judgment in excess of the policy limit; and that plaintiff was bringing the instant action as assignee of the Public Administrator for $26,000 plus costs.

In lieu of answer, defendant moved to dismiss the complaint on the grounds that the trial court in the original action lacked jurisdiction over the personal injury suit. In this regard, defendant’s motion to dismiss asserts, and plaintiff does not dispute, that Burns was dead at the time the original suit was filed and when the judgment was entered. Parenthetically, service of process on Burns was purported to have been accomplished by service on him as a nonresident under section 10 — 301 of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95}í, par. 10 — 301).

The trial court, in a written order denying the motion to dismiss, stated that there were substantial grounds for difference of opinion as to: (1) the effect of a judgment entered against a deceased person; (2) the effect of the Public Administrator’s purported assignment of the estate’s cause of action without court approval; and (3) the effect on the alleged assignment of section 18 — 12(b) of the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. llOM, par. 18 — 12(b)), which specifies that certain claims against an estate are barred unless letters of office are issued upon the estate of the decedent within three years after his death. We conclude that it is necessary that we consider only the first of these issues.

Defendant has moved to supplement the record on appeal with affidavits of defendant’s claims superintendent and the attorney who defended on Burns’ behalf in the personal injury action. This motion was ordered to be considered with the case, and we now determine that the motion need not be decided. Both affiants aver that they were not aware of Burns’ death during the personal injury suit. However, this cause must be reversed regardless of whether affiants were aware of Burns’ death at that time.

It is axiomatic that in a civil suit in tort, there must be a plaintiff and a defendant. They may be either natural or artificial persons; however, the capacity to be sued exists only for persons in being and not those who are dead or as yet unborn. Bavel v. Cavaness (1973), 12 Ill. App. 3d 633, 299 N.E.2d 435.

Plaintiff now concedes the jurisdictional infirmity in the personal injury judgment in the original suit, but she argues that defendant is now estopped, by its conduct of Burns’ defense, to assert that the circuit court was without jurisdiction of the personal injury action.

Jurisdiction is of two types, jurisdiction of the subject matter and jurisdiction of the person. Defects in jurisdiction of the person may be waived. (Mullaney, Wells & Co. v. Savage (1975), 31 Ill. App. 3d 343,334 N.E.2d 795.) However, a contention that a court does not have jurisdiction over the subject matter is essentially a claim that the court is without power or authority to consider or to act on a case before it other than to enter an order dismissing it. (Glasco Electric Co. v. Department of Revenue (1981), 86 Ill. 2d 346, 427 N.E.2d 90.) Jurisdiction over the subject matter cannot be waived (Glasco Electric Co. v. Department of Revenue; Toman v. Park Castles Apartment Building Corp. (1940), 375 Ill. 293, 31 N.E.2d 299; Mullaney, Wells & Co. v. Savage), nor may a party be deemed estopped to raise lack of subject matter jurisdiction. (Toman; Paulik v. Village of Caseyville (1981), 100 Ill. App. 3d 573, 427 N.E.2d 213; 21 C.J.S. Courts §108 (1940).) Additionally, a dead person is a nonexistent entity and cannot be a party to a suit. Therefore, proceedings instituted against an individual who is deceased at the time of the filing of suit are a nullity. Such proceedings are void ab initio and do not invoke the jurisdiction of the trial court. (Wells v. Lueber (1976), 43 Ill. App. 3d 973, 358 N.E.2d 293; Reed v. Long (1970), 122 Ill. App. 2d 295, 259 N.E.2d 411.) Consequently, the original personal injury judgment rendered against Burns is void and of no force or effect.

Plaintiff urges for comparison Iovino v. Waterson (2d Cir. 1959), 274 F.2d 41, cert, denied sub nom. Carlin v. Iovino (1960), 362 U.S. 949, 4 L. Ed. 2d 867, 80 S. Ct. 860. However, this reliance is misplaced because Iovino was a suit instituted against a living defendant, and defendant’s subsequent death was discovered and substitution sought prior to judgment. Thus, the issue in Iovino was whether plaintiff’s motion for substitution was properly granted. Defendant in Iovino was held estopped to assert, not the death of the defendant, but rather the limitation period of Fed. R. Civ. Proc. 25(a)(1) (28 U.S.C. R. 25(a)(1)).

For the reason that plaintiff’s personal injury suit against Burns was void ab initio and therefore a nullity, we conclude that defendant’s motion to dismiss the complaint should have been granted.

Therefore, the judgment of the circuit court of Madison County is reversed. Pursuant to our authority under Supreme Court Rule 366(a)(5) (73 Ill. 2d R. 366(a)(5)), defendant’s motion to dismiss plaintiff’s complaint is granted.

Reversed.

KARNS, P. J„ and JONES, J., concur.


text:
    DENNIS TODD LOOFT, Plaintiff-Appellee, v. MISSOURI PACIFIC RAILROAD COMPANY, Defendant-Appellant.
    Fifth District
    No. 80-615
    Opinion filed February 19, 1982.

      Walker and Williams, of Belleville (John B. Gunn and James C. Cook, of counsel), for appellant.
    Randolph E. Schum, of Paul L. Pratt, P. C., of East Alton, for appellee.
   JUSTICE KASSERMAN

delivered the opinion of the court:

The basic issue presented by this appeal is whether plaintiff’s motion for a new trial on the issue of damages only was properly granted by the circuit court of Madison County. Plaintiff’s suit was under the Federal Employers’ Liability Act (45 U.S.C. §51 et seq. (1976)) for injuries he allegedly suffered during his employment by defendant. A jury returned a general verdict of $37,500 for plaintiff, and the trial court subsequently granted plaintiff’s motion for a new trial on the issue of damages only. This court granted defendant’s petition for leave to appeal under Supreme Court Rule 306 (73 Ill. 2d R. 306).

The incident giving rise to plaintiff’s suit took place on October 25, 1977, shortly after plaintiff’s 22d birthday and one month after plaintiff went to work on one of defendant’s maintenance of way crews. Among the machines used by the crew was a “spike puller,” which removed spikes from the track. It had a motor and a hydraulic system but was not self-propelled. At the end of each day’s work, plaintiff and other crew members removed the spike puller from the track. This operation was also performed whenever a train passed through. Removal was accomplished as follows: Two rubber-tired wheels located on one side of the machine were let down and locked in place. Crew members would then lift the other side of the machine and roll it off the track in wheelbarrow fashion. Plaintiff testified that he hurt his back during such a lift. It is uncontradicted that he promptly reported the injury and helped prepare an accident report.

Donald Wyatt, then a maintenance crew foreman, testified that the spike puller probably weighed 700 to 800 pounds, but could have been nearly 1200 pounds. Other witnesses gave estimates between these extremes. There was testimony that moving the machine off the track was commonly considered a job for four or five men; however, two witnesses testified that two men could perform the task and another professed to have done it alone. Plaintiff testified that two other men were lifting with him at the time of his injury.

Testimony at trial was contradictory with respect to several significant facts. It would serve no purpose to set forth all of the testimony relating to disputed facts. It will suffice to note that there was substantial disagreement on the following points: (1) whether one of the rubber-tired wheels was defective and could not be placed in proper position for ease of removal of the spike puller from the track; (2) whether the spike puller was equipped with pull-out handles for ease of such removal; (3) whether, at the time of hiring, plaintiff received a railroad safety rule pamphlet; (4) whether plaintiff’s crew foreman followed the practice of reading to the crew each morning a safety rule for the day, there being uncontradicted testimony that this was an industry-wide practice; and (5) whether a small crane used in plaintiff’s crew, known as a tie handler, could have been used to remove the spike puller from the track.

It was shown that the above mentioned safety manual included instructions for lifting heavy machinery, requiring that the men be placed according to size, strength, and experience and that one person give the command for all to lift at once. Plaintiff’s testimony that no one instructed him as to how to lift the spike puller is uncontradicted.

According to plaintiff, immediately after the injury, his lower back was both sore and numb and his right leg was sore from his hip to his knee. He related that he was treated 13 times by a chiropractor, the first time on the day after the injury. He first consulted Dr. George Schoedinger, an orthopedic surgeon, in early 1978. Plaintiff was admitted to a hospital in August 1978 for extensive tests. According to Dr. Schoedinger, plaintiff ultimately stated that he could not live with the problems in his back and legs, and Dr. Schoedinger performed a laminectomy in September 1978, disclosing a bulging disk in the lumbar spine. Dr. Schoedinger testified that while post-operative recovery had been excellent, plaintiff had suffered permanent disability. Dr. Schoedinger related that he had instructed plaintiff to avoid heavy lifting, bending, pushing, pulling, twisting, and tortional motion of the back, but had imposed no specific weight lifting limitation. On cross-examination by defendant, Dr. Schoedinger noted that some other post-laminectomy patients of his had returned to railroad maintenance of way work.

Plaintiff testified that after the injury he was placed on “light duty.” Plaintiff related that he was fired within six months of the day he was hired. In this regard, various witnesses testified that during the first six months, new employees were on “probation” and could be fired without reason. According to plaintiff, a house-painting job he held prior to consulting Dr. Schoedinger aggravated his back condition. He stated that after surgery, he could not find work until June 1980, but that in May 1980 an employer offered him work, then reconsidered, apparently because of his injury. Plaintiff then found work with a municipal utility service. He testified that he had problems on that job with bending, standing, and sitting on the truck. Also, he had experienced much difficulty on the sole occasion he had tried hunting and found it necessary to give up bowling and football altogether.

On cross-examination of plaintiff, defendant elicited that plaintiff had had numerous brief jobs after high school and prior to working for defendant. He had also been unemployed for periods of months during that time.

A neurologist testified for defendant that he had examined plaintiff three months prior to trial. While this witness noted the laminectomy scar, he found no objective evidence of disability. In his experience, postlaminectomy patients were frequently instructed to limit their lifting, e.g., to 35 pounds or less.

Plaintiff’s complaint originally sought $300,000 damages, an amount later amended to $500,000. Proof of damages was as follows: Plaintiff itemized out-of-pocket medical expenses, which totaled $4,700.72. Dr. Louis Grossman, professor of economics at St. Louis University, testified for plaintiff, estimating that plaintiff’s lost wages to date as a result of the injury were $37,209 and that the present value of plaintiff’s future lost wages was between $267,801 and $424,707, all figures after taxes. In such estimate, Dr. Grossman assumed that plaintiff would work the rest of his life at the minimum wage, that if not for the injury plaintiff would have continued in his maintenance of way job for defendant until retirement, that plaintiff would retire at an age between 59.62 and 65 years, and that wages would rise at a rate of between six and eight percent over that period of time. A claims agent for defendant testified that of 100 to 125 maintenance of way employees presently working for defendant, 10 to 12 were over age 40 and only one was over age 50. He estimated that the turnover rate on those crews was 50%. Donald Wyatt, one of plaintiff’s foremen at the time of the injury, testified that that crew was laid off in December of 1977, at which time employees with seniority “bumped in” on other jobs and younger workers were out of work.

Following the jury’s return of a general verdict of $37,500, plaintiff moved for a new trial as to damages only or, in the alternative, a new trial on all issues. In allowing the motion for new trial as to damages only, the trial court, in a written order, cited “the manifest inadequacy of the jury award in view of the plaintiff’s injuries. In addition the jury may have been confused by the giving of defendant’s instruction No. 7, particularly in view of the fact that the plaintiff proved net rather than gross income. O # # ”

Defendant’s instruction No. 7, a non-pattern instruction, read as follows:

“In reaching your verdict, you will not increase the amount of your verdict by reason of federal or state income taxes, since the amount awarded to plaintiff is not taxable income to plaintiff within the meaning of these tax laws.”

On appeal, defendant contends that: (1) the trial court could not order a new trial without expressly finding that the verdict was unreasonable, arbitrary, and unsupported by the evidence; (2) the verdict was supported by the evidence; and (3) a trial restricted to the issue of damages would be unfair to defendant. The view we take of this case requires that we consider only the second issue raised.

This court will not reverse an order granting a new trial absent an affirmative showing of a clear abuse of discretion on the part of the trial court. Further, when the evidence supports the jury’s verdict and there is no showing that a party was denied a fair trial, it is an abuse of discretion for the trial court to substitute its judgment for that of the jury. (Bradley v. Caterpillar Tractor Co. (1979), 75 Ill. App. 3d 890, 394 N.E.2d 825; see Kolakowski v. Voris (1981), 94 Ill. App. 3d 404, 418 N.E.2d 1003.) This court has often recognized that the jury’s verdict should not be disturbed by the trial court unless it is “unreasonable, arbitrary, and unsupported by the evidence.” (Stringer v. McHugh (1975), 31 Ill. App. 3d 720, 722, 334 N.E.2d 311, 312; Brendel v. Hustava (1981), 97 Ill. App. 3d 792, 799-800, 423 N.E.2d 503, 509.) As stated by this court in Brendel v. Hustava:

“Although a trial court has broad discretion in the granting of new trials, ‘[n]either the trial court nor the appellate court should sit as a second jury * * * [and] [granting a new trial merely because the trial court would have reached a different result, where there is evidence which if believed would support the jury’s verdict, is an abuse of discretion.’ [Citations.]” 97 Ill. App. 3d 792, 800, 423 N.E.2d 503, 509.

In the case at bar, we find the verdict of the jury amply supported by the evidence. Contributory negligence was at issue in this case. (45 U.S.C. §53 (1976).) As defendant has aptly argued here, the jury could have determined that plaintiff’s damages were $300,000 but that plaintiff was about 90% contributorily negligent. Further, there was substantial ground for disagreement with plaintiff’s expert’s estimates of present and future lost wages. Plaintiff was a probationary employee who could have been, and was, fired while on probation. His work record prior to the injury was not steady. It was shown that maintenance crews were subject to layoffs and high turnover and that few older employees worked on these crews. There was also room for disagreement as to the extent of plaintiff’s injury, since defendant’s medical expert found no objective evidence of disability and plaintiff’s attending surgeon acknowledged that some postlaminectomy patients returned to maintenance of way work. We conclude that the instant verdict was neither unreasonable, nor arbitrary, nor unsupported by the evidence adduced.

Nevertheless, we must consider whether the trial court could properly have determined that the trial was not fair to plaintiff. (Bradley v. Caterpillar Tractor Co.) Plaintiff calls our attention to three alleged improprieties which we now consider.

First, the trial court found that the jury “may have” been confused by defendant’s instruction No. 7, above quoted. This was the only trial error referred to by the trial court in its order setting aside the verdict. However, the giving of this instruction in FELA cases has expressly been approved in Oltersdorf v. Chesapeake & Ohio R.R. Co. (1980), 83 Ill. App. 3d 457, 404 N.E.2d 320, cert, denied (1981), 450 U.S. 920, 67 L. Ed. 2d 347, 101 S. Ct. 1367, and Norfolk & Western Ry. Co. v. Liepelt (1980), 444 U.S. 490, 62 L. Ed. 2d 689, 100 S. Ct. 755. Further, we disagree with plaintiff’s contention that this instruction served no purpose in view of Dr. Grossman’s estimates of lost wages in after-tax dollars. Absent the instruction complained of, Dr. Grossman’s references to income taxes may have confused the jury because they had no way of knowing whether their award would be taxable or not. As stated by the United States Supreme Court in Liepelt, this instruction “would not be prejudicial to either party, but would merely eliminate an area of doubt or speculation that might have an improper impact on the computation of the amount of damages.” (444 U.S. 490, 498, 62 L. Ed. 2d 689, 696, 100 S. Ct. 755, 760.) This was a neutral instruction and could not have adversely affected the fairness of the trial.

Second, we consider whether the following comment by attorney Gunn, counsel for defendant, was grounds for a new trial:

“MR. GUNN: Your honor, at this point, the Missouri Pacific would be glad to transport this jury to the point where any of these spike pullers are—
MR. SCHUM: Your honor, I’m going to object—
MR. GUNN: — so they can have a view of the spike pullers if that is the problem in the case.
THE COURT: Well—
MR. SCHUM: I would object to that, your Honor, and ask the— THE COURT: That objection is sustained.
MR. SCHUM: — jury be instructed—
THE COURT: The jury is instructed to disregard it.

Except in condemnation cases, facts gained in a viewing cannot be considered in evidence (Lancer Industries, Inc. v. City of Aurora (1975), 30 Ill. App. 3d 962, 333 N.E.2d 653; Chicago, B. & Q. R. R. Co. v. Burton (1892), 53 Ill. App. 69), and defendant’s attorney should not have insinuated that a viewing could be had. Whether such conduct was grounds for a new trial was largely within the discretion of the trial court. (Paul v. Garman (1941), 310 Ill. App. 447, 34 N.E.2d 884.) However, improper conduct of counsel may be harmless (Park District of Highland Park v. Becker (1965), 60 Ill. App. 2d 463, 208 N.E.2d 621), particularly where, as here, objection was promptly made and sustained. (People v. Sawyer (1969), 42 Ill. 2d 294, 251 N.E.2d 230, cert, denied (1969), 396 U.S. 928, 24 L. Ed. 2d 225, 90 S. Ct. 262.) We are not requested to overrule the trial court’s determination that this comment was not harmless. To the contrary, the trial court’s written order granting plaintiff’s post-trial motion makes no reference to this comment, this despite plaintiff having conspicuously mentioned it twice in his post-trial motion. It is apparent that the trial court, as we do, believed that comment to have been without significant effect.

Finally, plaintiff contends on appeal that the trial court’s order granting a new trial as to damages only should be affirmed because of defense counsel’s several references to the spike puller having a lift-weight specification of 180 pounds, an assertion not supported by proof. Since the statements were not based on the evidence, they should not have been made. We find the matter inconsequential and note not only that the trial court failed to refer to the matter in its written order granting the post-trial motion, but also that plaintiff recognized its lack of significance and did not mention it in his post-trial motion.

In conclusion, we find no errors or misconduct at trial such as would affect the fairness of the trial. Since we have also concluded that the verdict was supported by the evidence, we determine that the trial court’s granting of a new trial was an abuse of discretion; therefore, that order is vacated. This cause is reversed and, pursuant to our authority under Supreme Court Rule 366(a)(5) (73 Ill. 2d R. 366(a)(5)), judgment is entered on the verdict of the jury in favor of plaintiff and against defendant for $37,500, plus costs.

Reversed.

KARNS, P. J., and JONES, J., concur.