Thompson v. Petit
Annotate this Case
FIFTH DIVISION
FILED: 2/27/98
No. 1-97-1714
BENNIE THOMPSON, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellee, ) COOK COUNTY
)
)
)
v. )
)
) HONORABLE
) HOWARD MILLER
EDWARD PETIT, ) and
) JACQUELINE COX
Defendant-Appellant. ) JUDGES PRESIDING.
PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:
The plaintiff, Bennie Thompson, filed the instant negligence
action seeking recovery for damages sustained when he was shot by
the defendant, Edward Petit. Although the defendant did not deny
shooting the plaintiff, he claimed that he acted in self-defense.
The matter was tried before a jury in the circuit court of Cook
County resulting in a verdict in favor of the plaintiff. After
reducing the plaintiff's total damages by the 25% attributable to
his own contributory negligence, the jury assessed the plaintiff's
recoverable damages at $2,249,070, and the trial judge entered
judgment on the verdict. The defendant filed a post-trial motion
seeking the entry of a judgment notwithstanding the verdict or, in
the alternative, a new trial. The defendant's post-trial motion
was heard and denied by a circuit judge to whom the matter was
assigned after the trial judge's retirement from judicial service.
Thereafter, the defendant filed a timely notice of appeal both from
the judgment entered on the verdict and the denial of his post-
trial motion. For the reasons which follow, we affirm.
This action arose from a traffic altercation which occurred on
the Stevenson Expressway in Chicago on July 3, 1986. The plaintiff
and his co-worker, Fred Quillin, were travelling eastbound in the
plaintiff's car when they encountered a station wagon driven by the
defendant. The events which followed culminated in the plaintiff
being shot twice by the defendant. There is no dispute that the
defendant shot the plaintiff. The evidence introduced by the
parties at trial, however, presented the jury with two conflicting
versions of the events leading up to the shooting.
According to the testimony of the plaintiff and Quillin, they
were travelling eastbound in the far left lane of the expressway
when they were passed by a station wagon being driven by the
defendant on the left shoulder of the roadway. After passing the
plaintiff's vehicle, the defendant entered the left lane immedi-
ately in front of the plaintiff's vehicle, slammed on his brakes,
and brought his vehicle to a complete stop. The plaintiff was able
to stop without hitting the defendant's vehicle. The plaintiff
exited his car and began walking toward the defendant's vehicle.
However, as he reached the rear of the defendant's vehicle, the
defendant drove forward a short distance and then stopped. The
plaintiff began walking back to his own car when the defendant
backed his vehicle toward the plaintiff at 15 to 20 m.p.h.,
stopping within about four feet of the front of the plaintiff's
car. The plaintiff again walked toward the defendant's vehicle,
but the defendant sped away.
The plaintiff returned to his car and followed the defendant.
When the plaintiff caught up with the defendant, he pulled his
vehicle in front of the defendant's and forced the defendant to
stop in the left lane of the expressway with the plaintiff's
vehicle positioned four to eight feet in front of the defendant's.
The plaintiff and Quillin exited the plaintiff's vehicle. At the
time they exited the car, the plaintiff was carrying a small bat
and Quillin was carrying a long key chain. The plaintiff walked
toward the defendant's vehicle. As he reached the rear of his own
car, the plaintiff saw that the defendant had a gun. According to
the plaintiff, the defendant shot him as he turned to run. After
the plaintiff fell to the ground, the defendant approached, stood
over him, and shot the plaintiff a second time.
Testifying both as an adverse witness in the plaintiff's case
and again in his own defense, the defendant related an entirely
different sequence of events. According to the defendant, he was
driving eastbound on the Stevenson Expressway in the left lane when
the plaintiff, who was driving eastbound in the center lane, struck
the passenger door of the defendant's vehicle and then pulled in
front of the defendant, compelling him to drive on the shoulder of
the roadway to avoid a collision. Thereafter, the defendant pulled
in front of the plaintiff's vehicle and stopped, also forcing the
plaintiff to stop. The defendant testified that the plaintiff,
armed with a bat, and Quillin, carrying a tire iron, exited the
plaintiff's car and ran toward the defendant yelling obscenities.
The defendant drove his vehicle forward a short distance as they
approached. Thereafter, he moved his vehicle in reverse, but
ultimately pulled away.
The defendant testified that as he drove eastbound the
plaintiff caught up with him, cut in front of his vehicle, slammed
on his brakes, and forced the defendant to stop in the left lane of
the expressway. According to the defendant, the plaintiff and
Quillin again exited the plaintiff's vehicle armed with a bat and
a tire iron, respectively. The plaintiff ran toward the
defendant's vehicle screaming obscenities. At this time, the
defendant stated that he exited his vehicle armed with a .25
caliber pistol that he kept under the front seat. The defendant
admitted that he shot the plaintiff, but testified that he did so
believing that the plaintiff was about to hit him with the bat he
was carrying. The defendant claimed that, after he fired, he saw
two men running toward him, so he ran in the direction of the
plaintiff. The plaintiff grabbed his leg and began striking him.
According to the defendant, Quillin then threw the tire iron he was
holding, hitting the defendant in the right wrist. The blow from
the tire iron caused the defendant's gun to discharge resulting in
the plaintiff's second gunshot wound. Thereafter, the defendant
laid down his pistol after becoming aware of the presence of David
Kurtz, an off-duty Chicago police officer.
Officer Kurtz testified as a witness for the plaintiff. Kurtz
stated that he first noticed the parties as they were cutting each
other off while driving on the expressway. When they stopped on
the roadway, Kurtz also stopped. Kurtz observed the plaintiff and
Quillin exit the plaintiff's car. The plaintiff was carrying a
small bat and yelling obscenities as he walked toward the
defendant's station wagon. At this time, the defendant was still
in his vehicle with the driver's door partially open and his left
foot on the ground. When the plaintiff was about two feet in front
of the defendant's vehicle, Kurtz observed the defendant exit the
vehicle, crouch behind the driver's door, extend his arm through
the open window, and shoot the plaintiff. Kurtz identified himself
as a police officer and ordered the defendant to stop, but the
defendant did not respond. According to Kurtz, the defendant then
walked over to the plaintiff and shot him again as he was lying
motionless on the ground.
Over the defendant's objection, the trial judge allowed John
McCormick to testify as a witness for the plaintiff. McCormick
relayed the particulars of an event involving the defendant which
took place on July 5, 1980, six years prior to the occurrence in
issue. According to McCormick, he was driving eastbound on the
Stevenson Expressway in the far left lane when he was passed by the
defendant who was driving on the left shoulder of the roadway.
McCormick testified that the defendant cut in front of him and
slammed on his brakes several times before McCormick was forced to
stop on the left shoulder of the roadway immediately behind the
defendant's vehicle. McCormick exited his car and walked toward
the defendant's vehicle, but the defendant pulled forward each time
McCormick approached. When McCormick returned to his car, the
defendant backed his vehicle into the front of McCormick's car.
McCormick got out of his car and walked toward the defendant, but
the defendant again pulled forward each time McCormick approached.
The defendant then drove in reverse at a high rate of speed and
again caused his vehicle to strike the front of McCormick's car,
this time pushing McCormick's vehicle from the shoulder of the
roadway into the left lane of traffic. Thereafter, the defendant
pulled his vehicle up to the place where McCormick was standing and
displayed a gun.
The defendant's version of his 1980 encounter with McCormick
differed substantially. According to the defendant, McCormick
rear-ended his vehicle and thereafter collided with the defendant's
vehicle several more times. When their vehicles later stopped
along the shoulder of the road, the defendant testified that
McCormick began throwing objects at his car and ran up to the door
of his vehicle brandishing a knife.
At the close of all of the evidence, the jury received
instructions on the plaintiff's claims of negligence and the
defendant's affirmative defenses of contributory negligence and
self-defense. The jury returned a verdict in favor of the
plaintiff, but reduced his damages by 25% for contributory
negligence. The trial judge entered a $2,249,000 judgment against
the defendant on the verdict. This appeal followed the denial of
the defendant's post-trial motion seeking the entry of a judgment
notwithstanding the verdict or, in the alternative, a new trial.
As a preliminary matter, we note that the defendant's
appellate brief requests only that the judgment entered in this
case be reversed and the cause remanded for a new trial. Conse-
quently, having failed to address the propriety of the trial
court's denial of his motion for the entry of a judgment not-
withstanding the verdict, the defendant has waived the issue for
review. 134 Ill. 2d R. 341(e)(7).
The defendant's claimed entitlement to a new trial is based
solely upon the argument that the trial judge erred in admitting
the testimony of McCormick. We are a bit unclear from the defen-
dant's brief, however, whether he asserts that McCormick's
testimony should have been excluded because it is wholly irrele-
vant, or because its prejudicial effect substantially outweighed
its probative worth. We will address each possible contention
seriatim.
The law concerning the admissibility of a defendant's prior
acts of misconduct in a criminal prosecution is fairly well
established. Such evidence is inadmissible if introduced merely to
establish the defendant's propensity to commit crime. People v.
Thingvold, 145 Ill. 2d 441, 452, 584 N.E.2d 89 (1991); People v.
Wydra, 265 Ill. App. 3d 597, 615, 637 N.E.2d 741 (1994).
Propensity evidence is not rejected because it is irrelevant; "on
the contrary, it is said to weigh too much with the jury and to so
overpersuade them as to prejudice one with a bad general record and
deny him a fair opportunity to defend against a particular charge."
Michelson v. United States, 335 U.S. 469, 475-76, 69 S. Ct. 213,
218, 93 L. Ed. 168, 174 (1948). Evidence of the commission of prior
crimes or acts of misconduct may be admissible, however, if
relevant to prove modus operandi, intent, identity, motive, absence
of mistake, or any material question other than the propensity to
commit crime. Thingvold, 145 Ill. 2d at 452; People v. Stewart,
105 Ill. 2d 22, 61, 473 N.E.2d 840 (1984). "The rule is one of
Inclusion. It authorizes the admission of a party's conduct that
is extrinsic to the matter on trial for any relevant reason other
than to prove the party's propensity to do the thing at issue." T.
Mauet & W. Wolfson, Trial Evidence at 103 (1997). Although not
expressed in exactly the same terms, Illinois has long subscribed
to a similar rule in civil cases. The admission of evidence of
prior similar tortious or wrongful conduct to establish purpose,
intent, motive, knowledge or other mental state of a party to a
civil action, forms an exception to the general rule which
prohibits proof of one wrongful act by evidence of the commission
of another such act. Joseph Taylor Coal Co. v. Dawes, 220 Ill. 145, 77 N.E. 131 (1906); see also Wernowsky v. Economy Fire &
Casualty Co., 106 Ill. 2d 49, 477 N.E.2d 231 (1985).
In this case, the defendant filed two affirmative defenses--
contributory negligence and self-defense. It is the defendant's
claim of self-defense that impacts upon our resolution of this
appeal.
Illinois recognizes the doctrine of self-defense as a defense
both in criminal and civil cases. First Midwest Bank v. Denson,
205 Ill. App. 3d 124, 129, 562 N.E.2d 1256 (1990). A defendant who
raises a claim of self-defense must offer evidence in support of
each of the following propositions: (1) force had been threatened
against him; (2) he was not the aggressor; (3) the danger of harm
was imminent; (4) the force threatened against him was unlawful;
(5) he had an actual belief that (a) a danger existed, (b) force
was necessary to avert the danger, and (c) the amount of force used
was necessary; and (6) his belief was reasonable. People v. Myles,
257 Ill. App. 3d 872, 882, 629 N.E.2d 648 (1994). A person cannot
claim self-defense, however, when the perilous situation he
encounters arises out of his own aggressive conduct. People v.
Tillman, 383 Ill. 560, 50 N.E.2d 751 (1943); People v. Barnes, 117
Ill. App. 3d 965, 453 N.E.2d 1371 (1983); People v. Echoles, 36
Ill. App. 3d 845, 344 N.E.2d 620 (1976). Although the vast
majority of reported cases dealing with self-defense are criminal
cases, they stand as persuasive authority in civil cases in which
this affirmative defense is raised. First Midwest Bank, 205 Ill.
App. 3d at 130; see also Ewurs v. Pakenham, 8 Ill. App. 3d 733, 290 N.E.2d 319 (1972).
By bringing his cause of action grounded in allegations of
negligence, the plaintiff in this case obviated the need to plead
or prove the defendant's motive or intent as he would have been
obliged to do had he chosen to seek recovery for a battery. See
Aetna Casualty & Surety Co. v. Freyer, 89 Ill. App. 3d 617, 411 N.E.2d 1157 (1980); Cowan v. Insurance Company of North America, 22
Ill. App. 3d 883, 318 N.E.2d 315 (1974). However, by pleading
self-defense as an affirmative defense to the plaintiff's action,
the defendant introduced his mental state as an issue in contro-
versy, as self-defense necessarily involves the question of the
defendant's subjective belief and intent at the time of the
incident. We believe that McCormick's testimony of a prior
incident involving the defendant, which was strikingly similar to
the plaintiff's rendition of the events giving rise to this action,
is relevant both to the issue of the defendant's state of mind and
intent at the time that he shot the plaintiff, and to the question
of whether the defendant introduced a gun into the confrontation as
an instrument of self-defense or as an instrument of aggression.
People v. Tucker, 176 Ill. App. 3d 209, 222, 530 N.E.2d 1079
(1988). The relevance of such evidence derives from the logic that
it is far less likely that the defendant in this case was an
innocent victim acting out of a belief that his safety was
endangered if he was the aggressor in a prior incident under
peculiarly similar circumstances. People v. Charles, 238 Ill. App.
3d 752, 763, 606 N.E.2d 603 (1992).
The fact that evidence of prior acts of misconduct may be
relevant to prove something other than propensity does not mean
that such evidence should be admitted as a matter of course. Trial
judges must still determine whether the danger of "unfair
prejudice" to the defendant "substantially" outweighs the probative
value of the prior-act evidence. People v. Illgen, 145 Ill. 2d 353, 375-76, 583 N.E.2d 515 (1991); see also Charles, 238 Ill. App.
3d at 760-61. Such a determination is a matter committed to the
sound discretion of the trial judge, and we will not reverse the
court's resolution of the question absent a clear abuse of that
discretion. Illgen, 145 Ill. 2d at 375.
Relevant evidence is excludable only if it is unfairly
prejudicial. The question is one of "unfair" prejudice, not of
prejudice alone, as virtually all evidence is prejudicial to the
opposing party or it would not be material. "Unfair prejudice" is
the capacity of relevant evidence to lead the factfinder to a
decision on an improper basis such as "generalizing a defendant's
earlier bad act into bad character and taking that as raising the
odds that he did the later bad act now charged ***." Old Chief v.
United States, 519 U.S. ___, 117 S. Ct. 644, 650, 136 L. Ed. 2d 574
(1997). There is little doubt that evidence of prior acts of
misconduct carries with it a risk of unfair prejudice, but this
unfortunate consequence does not necessarily render such evidence
inadmissible. Illgen, 145 Ill. 2d at 375. The evidence must still
be evaluated to determine whether the risk of unfair prejudice
substantially outweighs its probative worth. The task is one of
balancing which cannot be resolved by resort to a mechanical
process.
When otherwise relevant evidence is objected to on the grounds
of unfair prejudice, the incremental probative value of the
proffered evidence should be considered in light of the
availability of other means of proof having the same or greater
probative worth but a lower danger of unfair prejudice, along with
other factors appropriate to such a determination in light of the
type and character of the proffered evidence. See Old Chief, 117 S. Ct. at 652. In the case of evidence of prior acts of misconduct,
consideration should be given to the remoteness in time of the
prior act and its resemblance to the incident in issue. United
States v. Fields, 871 F.2d 188 (1st Cir. 1989).
The trial judge in this case was aware from the very outset of
the trial that the defendant's mental state and intent was an issue
in controversy by reason of the defendant's having pled self-
defense. At the time that the trial judge was called upon to rule
on the defendant's motion to exclude McCormick's testimony, the
jury had already heard the plaintiff and the defendant testify to
conflicting versions of the events leading up to the shooting. In
judging the credibility and weight to be given to the testimony of
the parties, the jury was entitled to take into consideration their
obvious interest in the outcome of the litigation. The plaintiff
was able to bolster his case with the testimony of Kurtz who
corroborated the essentials of the plaintiff's version of the
events which transpired at the scene of the shooting. However,
Kurtz did not witness the initial confrontation between the parties
and could not, therefore, shed any light on the question of who was
the initial aggressor. McCormick's proffered testimony, although
not immune from a charge of bias, enabled the jury to evaluate the
testimony of the parties and, if believed, was highly probative of
the defendant's state of mind and intent. Further, nothing in the
record before us indicates that the plaintiff had at his disposal
any alternate means of disproving the defendant's claim that he was
merely defending himself from an unprovoked attack by the
plaintiff, which carried the same or greater probative worth than
McCormick's prior-act testimony. In arriving at this conclusion,
we are not unmindful that Quillin subsequently corroborated the
plaintiff's testimony; but, by reason of his friendship with the
plaintiff, Quillin's testimony was subject to a legitimate
credibility attack on the grounds of bias.
The defendant also argues that McCormick's testimony lacked
probative value because the incident which he recounted was too
remote in time from the events in issue. No doubt, if prior acts
are too remote, their probative value is weakened, especially in
cases in which such evidence goes to the issue of intent. Fields,
871 F.2d at 198. Nevertheless, the admissibility of prior-acts
evidence cannot be controlled solely by the number of years that
have elapsed between the prior-act and the events in issue. The
question of whether to exclude such evidence on the grounds of
remoteness must be made on a case-by-case basis. Illgen, 145 Ill. 2d at 370. The degree to which the passage of time diminishes the
probative value of prior-acts evidence cannot be calculated without
reference to the purpose for which the evidence is proffered and
the similarity between the prior act and the event in issue.
When, as in this case, evidence of prior misconduct is
relevant to the issue of a defendant's state of mind or intent, the
prior conduct must be similar to the conduct in issue. People v.
Bartall, 98 Ill. 2d 294, 456 N.E.2d 59 (1983). It follows then
that the greater the similarity, the greater the probative worth.
McCormick's testimony relating to his encounter with the defendant
was not only similar to the plaintiff's version of the defendant's
actions in this case, it was virtually identical save for the end
result--the defendant only displayed a gun after menacing McCormick
with his vehicle, whereas in this case, the defendant shot the
plaintiff. Because the defendant's behavior as testified to by the
plaintiff and McCormick's rendition of the events which transpired
during his encounter with the defendant were so similar, we do not
believe that the passage of six years between these two
idiosyncratic incidents appreciably diminished the probative value
of McCormick's testimony.
Trial judges rule on the admissibility of evidence based upon
what is then before the court. On review, our function is to place
ourselves in the position of the trial judge at the time of such a
ruling to determine if the judge abused his discretion. From that
perspective, we find no abuse of discretion in this case. However,
even from the position of hindsight, we believe that the relevance
of McCormick's proffered testimony was readily apparent, and that
the risk of unfair prejudice to the defendant was minimal in
comparison to its probative worth.
Affirmed.
HARTMAN and THEIS, JJ., concur.
FILED: 2/27/98
No. 1-97-1714
BENNIE THOMPSON, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellee, ) COOK COUNTY
)
)
)
v. )
)
) HONORABLE
) HOWARD MILLER
EDWARD PETIT, ) and
) JACQUELINE COX
Defendant-Appellant. ) JUDGES PRESIDING.
PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:
The plaintiff, Bennie Thompson, filed the instant negligence
action seeking recovery for damages sustained when he was shot by
the defendant, Edward Petit. Although the defendant did not deny
shooting the plaintiff, he claimed that he acted in self-defense.
The matter was tried before a jury in the circuit court of Cook
County resulting in a verdict in favor of the plaintiff. After
reducing the plaintiff's total damages by the 25% attributable to
his own contributory negligence, the jury assessed the plaintiff's
recoverable damages at $2,249,070, and the trial judge entered
judgment on the verdict. The defendant filed a post-trial motion
seeking the entry of a judgment notwithstanding the verdict or, in
the alternative, a new trial. The defendant's post-trial motion
was heard and denied by a circuit judge to whom the matter was
assigned after the trial judge's retirement from judicial service.
Thereafter, the defendant filed a timely notice of appeal both from
the judgment entered on the verdict and the denial of his post-
trial motion. For the reasons which follow, we affirm.
This action arose from a traffic altercation which occurred on
the Stevenson Expressway in Chicago on July 3, 1986. The plaintiff
and his co-worker, Fred Quillin, were travelling eastbound in the
plaintiff's car when they encountered a station wagon driven by the
defendant. The events which followed culminated in the plaintiff
being shot twice by the defendant. There is no dispute that the
defendant shot the plaintiff. The evidence introduced by the
parties at trial, however, presented the jury with two conflicting
versions of the events leading up to the shooting.
According to the testimony of the plaintiff and Quillin, they
were travelling eastbound in the far left lane of the expressway
when they were passed by a station wagon being driven by the
defendant on the left shoulder of the roadway. After passing the
plaintiff's vehicle, the defendant entered the left lane immedi-
ately in front of the plaintiff's vehicle, slammed on his brakes,
and brought his vehicle to a complete stop. The plaintiff was able
to stop without hitting the defendant's vehicle. The plaintiff
exited his car and began walking toward the defendant's vehicle.
However, as he reached the rear of the defendant's vehicle, the
defendant drove forward a short distance and then stopped. The
plaintiff began walking back to his own car when the defendant
backed his vehicle toward the plaintiff at 15 to 20 m.p.h.,
stopping within about four feet of the front of the plaintiff's
car. The plaintiff again walked toward the defendant's vehicle,
but the defendant sped away.
The plaintiff returned to his car and followed the defendant.
When the plaintiff caught up with the defendant, he pulled his
vehicle in front of the defendant's and forced the defendant to
stop in the left lane of the expressway with the plaintiff's
vehicle positioned four to eight feet in front of the defendant's.
The plaintiff and Quillin exited the plaintiff's vehicle. At the
time they exited the car, the plaintiff was carrying a small bat
and Quillin was carrying a long key chain. The plaintiff walked
toward the defendant's vehicle. As he reached the rear of his own
car, the plaintiff saw that the defendant had a gun. According to
the plaintiff, the defendant shot him as he turned to run. After
the plaintiff fell to the ground, the defendant approached, stood
over him, and shot the plaintiff a second time.
Testifying both as an adverse witness in the plaintiff's case
and again in his own defense, the defendant related an entirely
different sequence of events. According to the defendant, he was
driving eastbound on the Stevenson Expressway in the left lane when
the plaintiff, who was driving eastbound in the center lane, struck
the passenger door of the defendant's vehicle and then pulled in
front of the defendant, compelling him to drive on the shoulder of
the roadway to avoid a collision. Thereafter, the defendant pulled
in front of the plaintiff's vehicle and stopped, also forcing the
plaintiff to stop. The defendant testified that the plaintiff,
armed with a bat, and Quillin, carrying a tire iron, exited the
plaintiff's car and ran toward the defendant yelling obscenities.
The defendant drove his vehicle forward a short distance as they
approached. Thereafter, he moved his vehicle in reverse, but
ultimately pulled away.
The defendant testified that as he drove eastbound the
plaintiff caught up with him, cut in front of his vehicle, slammed
on his brakes, and forced the defendant to stop in the left lane of
the expressway. According to the defendant, the plaintiff and
Quillin again exited the plaintiff's vehicle armed with a bat and
a tire iron, respectively. The plaintiff ran toward the
defendant's vehicle screaming obscenities. At this time, the
defendant stated that he exited his vehicle armed with a .25
caliber pistol that he kept under the front seat. The defendant
admitted that he shot the plaintiff, but testified that he did so
believing that the plaintiff was about to hit him with the bat he
was carrying. The defendant claimed that, after he fired, he saw
two men running toward him, so he ran in the direction of the
plaintiff. The plaintiff grabbed his leg and began striking him.
According to the defendant, Quillin then threw the tire iron he was
holding, hitting the defendant in the right wrist. The blow from
the tire iron caused the defendant's gun to discharge resulting in
the plaintiff's second gunshot wound. Thereafter, the defendant
laid down his pistol after becoming aware of the presence of David
Kurtz, an off-duty Chicago police officer.
Officer Kurtz testified as a witness for the plaintiff. Kurtz
stated that he first noticed the parties as they were cutting each
other off while driving on the expressway. When they stopped on
the roadway, Kurtz also stopped. Kurtz observed the plaintiff and
Quillin exit the plaintiff's car. The plaintiff was carrying a
small bat and yelling obscenities as he walked toward the
defendant's station wagon. At this time, the defendant was still
in his vehicle with the driver's door partially open and his left
foot on the ground. When the plaintiff was about two feet in front
of the defendant's vehicle, Kurtz observed the defendant exit the
vehicle, crouch behind the driver's door, extend his arm through
the open window, and shoot the plaintiff. Kurtz identified himself
as a police officer and ordered the defendant to stop, but the
defendant did not respond. According to Kurtz, the defendant then
walked over to the plaintiff and shot him again as he was lying
motionless on the ground.
Over the defendant's objection, the trial judge allowed John
McCormick to testify as a witness for the plaintiff. McCormick
relayed the particulars of an event involving the defendant which
took place on July 5, 1980, six years prior to the occurrence in
issue. According to McCormick, he was driving eastbound on the
Stevenson Expressway in the far left lane when he was passed by the
defendant who was driving on the left shoulder of the roadway.
McCormick testified that the defendant cut in front of him and
slammed on his brakes several times before McCormick was forced to
stop on the left shoulder of the roadway immediately behind the
defendant's vehicle. McCormick exited his car and walked toward
the defendant's vehicle, but the defendant pulled forward each time
McCormick approached. When McCormick returned to his car, the
defendant backed his vehicle into the front of McCormick's car.
McCormick got out of his car and walked toward the defendant, but
the defendant again pulled forward each time McCormick approached.
The defendant then drove in reverse at a high rate of speed and
again caused his vehicle to strike the front of McCormick's car,
this time pushing McCormick's vehicle from the shoulder of the
roadway into the left lane of traffic. Thereafter, the defendant
pulled his vehicle up to the place where McCormick was standing and
displayed a gun.
The defendant's version of his 1980 encounter with McCormick
differed substantially. According to the defendant, McCormick
rear-ended his vehicle and thereafter collided with the defendant's
vehicle several more times. When their vehicles later stopped
along the shoulder of the road, the defendant testified that
McCormick began throwing objects at his car and ran up to the door
of his vehicle brandishing a knife.
At the close of all of the evidence, the jury received
instructions on the plaintiff's claims of negligence and the
defendant's affirmative defenses of contributory negligence and
self-defense. The jury returned a verdict in favor of the
plaintiff, but reduced his damages by 25% for contributory
negligence. The trial judge entered a $2,249,000 judgment against
the defendant on the verdict. This appeal followed the denial of
the defendant's post-trial motion seeking the entry of a judgment
notwithstanding the verdict or, in the alternative, a new trial.
As a preliminary matter, we note that the defendant's
appellate brief requests only that the judgment entered in this
case be reversed and the cause remanded for a new trial. Conse-
quently, having failed to address the propriety of the trial
court's denial of his motion for the entry of a judgment not-
withstanding the verdict, the defendant has waived the issue for
review. 134 Ill. 2d R. 341(e)(7).
The defendant's claimed entitlement to a new trial is based
solely upon the argument that the trial judge erred in admitting
the testimony of McCormick. We are a bit unclear from the defen-
dant's brief, however, whether he asserts that McCormick's
testimony should have been excluded because it is wholly irrele-
vant, or because its prejudicial effect substantially outweighed
its probative worth. We will address each possible contention
seriatim.
The law concerning the admissibility of a defendant's prior
acts of misconduct in a criminal prosecution is fairly well
established. Such evidence is inadmissible if introduced merely to
establish the defendant's propensity to commit crime. People v.
Thingvold, 145 Ill. 2d 441, 452, 584 N.E.2d 89 (1991); People v.
Wydra, 265 Ill. App. 3d 597, 615, 637 N.E.2d 741 (1994).
Propensity evidence is not rejected because it is irrelevant; "on
the contrary, it is said to weigh too much with the jury and to so
overpersuade them as to prejudice one with a bad general record and
deny him a fair opportunity to defend against a particular charge."
Michelson v. United States, 335 U.S. 469, 475-76, 69 S. Ct. 213,
218, 93 L. Ed. 168, 174 (1948). Evidence of the commission of prior
crimes or acts of misconduct may be admissible, however, if
relevant to prove modus operandi, intent, identity, motive, absence
of mistake, or any material question other than the propensity to
commit crime. Thingvold, 145 Ill. 2d at 452; People v. Stewart,
105 Ill. 2d 22, 61, 473 N.E.2d 840 (1984). "The rule is one of
Inclusion. It authorizes the admission of a party's conduct that
is extrinsic to the matter on trial for any relevant reason other
than to prove the party's propensity to do the thing at issue." T.
Mauet & W. Wolfson, Trial Evidence at 103 (1997). Although not
expressed in exactly the same terms, Illinois has long subscribed
to a similar rule in civil cases. The admission of evidence of
prior similar tortious or wrongful conduct to establish purpose,
intent, motive, knowledge or other mental state of a party to a
civil action, forms an exception to the general rule which
prohibits proof of one wrongful act by evidence of the commission
of another such act. Joseph Taylor Coal Co. v. Dawes, 220 Ill. 145, 77 N.E. 131 (1906); see also Wernowsky v. Economy Fire &
Casualty Co., 106 Ill. 2d 49, 477 N.E.2d 231 (1985).
In this case, the defendant filed two affirmative defenses--
contributory negligence and self-defense. It is the defendant's
claim of self-defense that impacts upon our resolution of this
appeal.
Illinois recognizes the doctrine of self-defense as a defense
both in criminal and civil cases. First Midwest Bank v. Denson,
205 Ill. App. 3d 124, 129, 562 N.E.2d 1256 (1990). A defendant who
raises a claim of self-defense must offer evidence in support of
each of the following propositions: (1) force had been threatened
against him; (2) he was not the aggressor; (3) the danger of harm
was imminent; (4) the force threatened against him was unlawful;
(5) he had an actual belief that (a) a danger existed, (b) force
was necessary to avert the danger, and (c) the amount of force used
was necessary; and (6) his belief was reasonable. People v. Myles,
257 Ill. App. 3d 872, 882, 629 N.E.2d 648 (1994). A person cannot
claim self-defense, however, when the perilous situation he
encounters arises out of his own aggressive conduct. People v.
Tillman, 383 Ill. 560, 50 N.E.2d 751 (1943); People v. Barnes, 117
Ill. App. 3d 965, 453 N.E.2d 1371 (1983); People v. Echoles, 36
Ill. App. 3d 845, 344 N.E.2d 620 (1976). Although the vast
majority of reported cases dealing with self-defense are criminal
cases, they stand as persuasive authority in civil cases in which
this affirmative defense is raised. First Midwest Bank, 205 Ill.
App. 3d at 130; see also Ewurs v. Pakenham, 8 Ill. App. 3d 733, 290 N.E.2d 319 (1972).
By bringing his cause of action grounded in allegations of
negligence, the plaintiff in this case obviated the need to plead
or prove the defendant's motive or intent as he would have been
obliged to do had he chosen to seek recovery for a battery. See
Aetna Casualty & Surety Co. v. Freyer, 89 Ill. App. 3d 617, 411 N.E.2d 1157 (1980); Cowan v. Insurance Company of North America, 22
Ill. App. 3d 883, 318 N.E.2d 315 (1974). However, by pleading
self-defense as an affirmative defense to the plaintiff's action,
the defendant introduced his mental state as an issue in contro-
versy, as self-defense necessarily involves the question of the
defendant's subjective belief and intent at the time of the
incident. We believe that McCormick's testimony of a prior
incident involving the defendant, which was strikingly similar to
the plaintiff's rendition of the events giving rise to this action,
is relevant both to the issue of the defendant's state of mind and
intent at the time that he shot the plaintiff, and to the question
of whether the defendant introduced a gun into the confrontation as
an instrument of self-defense or as an instrument of aggression.
People v. Tucker, 176 Ill. App. 3d 209, 222, 530 N.E.2d 1079
(1988). The relevance of such evidence derives from the logic that
it is far less likely that the defendant in this case was an
innocent victim acting out of a belief that his safety was
endangered if he was the aggressor in a prior incident under
peculiarly similar circumstances. People v. Charles, 238 Ill. App.
3d 752, 763, 606 N.E.2d 603 (1992).
The fact that evidence of prior acts of misconduct may be
relevant to prove something other than propensity does not mean
that such evidence should be admitted as a matter of course. Trial
judges must still determine whether the danger of "unfair
prejudice" to the defendant "substantially" outweighs the probative
value of the prior-act evidence. People v. Illgen, 145 Ill. 2d 353, 375-76, 583 N.E.2d 515 (1991); see also Charles, 238 Ill. App.
3d at 760-61. Such a determination is a matter committed to the
sound discretion of the trial judge, and we will not reverse the
court's resolution of the question absent a clear abuse of that
discretion. Illgen, 145 Ill. 2d at 375.
Relevant evidence is excludable only if it is unfairly
prejudicial. The question is one of "unfair" prejudice, not of
prejudice alone, as virtually all evidence is prejudicial to the
opposing party or it would not be material. "Unfair prejudice" is
the capacity of relevant evidence to lead the factfinder to a
decision on an improper basis such as "generalizing a defendant's
earlier bad act into bad character and taking that as raising the
odds that he did the later bad act now charged ***." Old Chief v.
United States, 519 U.S. ___, 117 S. Ct. 644, 650, 136 L. Ed. 2d 574
(1997). There is little doubt that evidence of prior acts of
misconduct carries with it a risk of unfair prejudice, but this
unfortunate consequence does not necessarily render such evidence
inadmissible. Illgen, 145 Ill. 2d at 375. The evidence must still
be evaluated to determine whether the risk of unfair prejudice
substantially outweighs its probative worth. The task is one of
balancing which cannot be resolved by resort to a mechanical
process.
When otherwise relevant evidence is objected to on the grounds
of unfair prejudice, the incremental probative value of the
proffered evidence should be considered in light of the
availability of other means of proof having the same or greater
probative worth but a lower danger of unfair prejudice, along with
other factors appropriate to such a determination in light of the
type and character of the proffered evidence. See Old Chief, 117 S. Ct. at 652. In the case of evidence of prior acts of misconduct,
consideration should be given to the remoteness in time of the
prior act and its resemblance to the incident in issue. United
States v. Fields, 871 F.2d 188 (1st Cir. 1989).
The trial judge in this case was aware from the very outset of
the trial that the defendant's mental state and intent was an issue
in controversy by reason of the defendant's having pled self-
defense. At the time that the trial judge was called upon to rule
on the defendant's motion to exclude McCormick's testimony, the
jury had already heard the plaintiff and the defendant testify to
conflicting versions of the events leading up to the shooting. In
judging the credibility and weight to be given to the testimony of
the parties, the jury was entitled to take into consideration their
obvious interest in the outcome of the litigation. The plaintiff
was able to bolster his case with the testimony of Kurtz who
corroborated the essentials of the plaintiff's version of the
events which transpired at the scene of the shooting. However,
Kurtz did not witness the initial confrontation between the parties
and could not, therefore, shed any light on the question of who was
the initial aggressor. McCormick's proffered testimony, although
not immune from a charge of bias, enabled the jury to evaluate the
testimony of the parties and, if believed, was highly probative of
the defendant's state of mind and intent. Further, nothing in the
record before us indicates that the plaintiff had at his disposal
any alternate means of disproving the defendant's claim that he was
merely defending himself from an unprovoked attack by the
plaintiff, which carried the same or greater probative worth than
McCormick's prior-act testimony. In arriving at this conclusion,
we are not unmindful that Quillin subsequently corroborated the
plaintiff's testimony; but, by reason of his friendship with the
plaintiff, Quillin's testimony was subject to a legitimate
credibility attack on the grounds of bias.
The defendant also argues that McCormick's testimony lacked
probative value because the incident which he recounted was too
remote in time from the events in issue. No doubt, if prior acts
are too remote, their probative value is weakened, especially in
cases in which such evidence goes to the issue of intent. Fields,
871 F.2d at 198. Nevertheless, the admissibility of prior-acts
evidence cannot be controlled solely by the number of years that
have elapsed between the prior-act and the events in issue. The
question of whether to exclude such evidence on the grounds of
remoteness must be made on a case-by-case basis. Illgen, 145 Ill. 2d at 370. The degree to which the passage of time diminishes the
probative value of prior-acts evidence cannot be calculated without
reference to the purpose for which the evidence is proffered and
the similarity between the prior act and the event in issue.
When, as in this case, evidence of prior misconduct is
relevant to the issue of a defendant's state of mind or intent, the
prior conduct must be similar to the conduct in issue. People v.
Bartall, 98 Ill. 2d 294, 456 N.E.2d 59 (1983). It follows then
that the greater the similarity, the greater the probative worth.
McCormick's testimony relating to his encounter with the defendant
was not only similar to the plaintiff's version of the defendant's
actions in this case, it was virtually identical save for the end
result--the defendant only displayed a gun after menacing McCormick
with his vehicle, whereas in this case, the defendant shot the
plaintiff. Because the defendant's behavior as testified to by the
plaintiff and McCormick's rendition of the events which transpired
during his encounter with the defendant were so similar, we do not
believe that the passage of six years between these two
idiosyncratic incidents appreciably diminished the probative value
of McCormick's testimony.
Trial judges rule on the admissibility of evidence based upon
what is then before the court. On review, our function is to place
ourselves in the position of the trial judge at the time of such a
ruling to determine if the judge abused his discretion. From that
perspective, we find no abuse of discretion in this case. However,
even from the position of hindsight, we believe that the relevance
of McCormick's proffered testimony was readily apparent, and that
the risk of unfair prejudice to the defendant was minimal in
comparison to its probative worth.
Affirmed.
HARTMAN and THEIS, JJ., concur.
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