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Thompson v. Petit

February 27, 1998

BENNIE THOMPSON, PLAINTIFF-APPELLEE,
v.
EDWARD PETIT, DEFENDANT-APPELLANT.



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 Judgement on the verdict. The defendant filed a post-trial motion seeking the entry of a Judgement 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 immediately 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 par- tially 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 Judgement entered in this case be reversed and the cause remanded for a new trial. Consequently, having failed to address the propriety of the trial court's denial of his motion for the entry of a Judgement notwithstanding 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 defendant's brief, however, whether he asserts that McCormick's testimony should have been excluded because it is wholly irrelevant, 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-- con- tributory negligence and self-defense. It is the defendant's claim of self-defense that ...


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