author: JUSTICE LaPORTA

text:
    JAMES R. HALL, Plaintiff-Appellant, v. THE BOARD OF EDUCATION OF THE CITY OF CHICAGO et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—89—3295
    Opinion filed March 20, 1992.

      Grady, Terrell & Thrall, of Valparaiso, Indiana (Larry E. Thrall, of counsel), for appellant.

      Patricia J. Whitten, of Chicago Board of Education, of Chicago (Camille E. Willis, of counsel), for appellees.
   JUSTICE LaPORTA

delivered the opinion of the court:

This is an appeal from a final judgment of the circuit court in a suit for administrative review (Ill. Rev. Stat. 1987, ch. 110, par. 3— 101 et seq.) affirming the decision of the Illinois State Board of Education ordering plaintiff's dismissal.

Plaintiff raises three issues on appeal: (1) whether the decision of the hearing officer affirming the dismissal of plaintiff was against the. manifest weight of the evidence in the record; (2) whether plaintiff was denied due process and a full and fair hearing because of his inability to confront and effectively cross-examine witnesses; and (3) whether the trial court should have remanded the case to the hearing officer for consideration of newly discovered evidence.

Plaintiff began his employment with the board of education of the City of Chicago in 1968 as a full-time substitute teacher under a temporary certificate and subsequently was appointed on a regular certificate as a tenured teacher.

On January 28, 1987, the general superintendent of schools for the Chicago public schools preferred charges of unsatisfactory conduct and requested plaintiff’s dismissal as a teacher. By letter dated January 29, 1987, plaintiff was notified of the charges against him and of the request for his dismissal. Plaintiff was also served with a copy of the written charges and specifications of inappropriate and unprofessional physical conduct in March 1985 and in 1986 with a juvenile male student and with one of his juvenile teacher aides. Plaintiff was further advised that the board of education of the City of Chicago had adopted the request for dismissal pursuant to section 34 — 85 of the School Code of Illinois. Ill. Rev. Stat. 1987, ch. 122, par. 1 et seq.

Plaintiff was notified that effective immediately he was suspended without pay pursuant to section 34 — 85 of the Illinois School Code (Ill. Rev. Stat. 1987, ch. 122, par. 34 — 85) and pursuant to section 4 — 30 of the rules of the board of education of the City of Chicago. In addition, plaintiff was notified of his right to make a written request for a hearing on the charges within 10 days. Plaintiff requested a hearing on the charges against him.

The Illinois State Board of Education hearing officer conducted an administrative hearing on the charges on December 16 and 17, 1987, on February 5 and 6, 1988, and on March 5, 1988. On June 8, 1988, the hearing officer issued findings of fact and an opinion that plaintiff had engaged in improper sexual activity of a criminal nature with juveniles and students and denied plaintiff’s appeal of the board’s decision for dismissal.

Plaintiff filed a complaint for administrative review in the circuit court of Cook County. In his final judgment, the circuit court judge affirmed the administrative decision of the Illinois Board of Education hearing officer, specifically finding the decision was “not against the manifest weight of the evidence” and denied plaintiff’s request for remand. Plaintiff appealed.

The charges and specifications against plaintiff adopted by the board of education of the City of Chicago on January 28, 1987, and subsequently served on him on February 13, 1987, charged him with “conduct unbecoming a teacher in the Chicago Public School system” during the 1984-85 school year and in 1986. In particular, specifications 1 through 8 charged that during March 1985, plaintiff gave alcohol and marijuana to his male juvenile teaching aide, who consumed the alcohol and smoked the marijuana in plaintiff’s presence. Specifications 9 through 18 charged that shortly before April 1, 1985, while at his home, plaintiff and another adult male gave alcohol and marijuana to the juvenile teaching aide and to another male juvenile, who consumed the alcohol and smoked the marijuana, and that plaintiff engaged in sexual activity with the juvenile male and watched while the adult male engaged in sexual activity with plaintiff’s juvenile teaching aide. Specification 19 charged plaintiff with “inappropriate sexual interaction” with his juvenile teaching aide in April 1986.

In the administrative proceedings on the charges before hearing officer Harry E. Graham of the Illinois State board of education, the following evidence was adduced.

Plaintiff testified first as an adverse witness for the board of education of the City of Chicago (Board) and later on his own behalf. Plaintiff stated that he had been a teacher since 1968, was certified by the Board in 1975, and had served at 10 or 11 schools. Although plaintiff originally testified that all of his ratings had been “excellent” or “satisfactory,” he subsequently stated that he had received one “excellent” rating, many “no ratings,” and the remainder were “satisfactory” ratings.

Plaintiff stated that he was assigned to Chicago Vocational School (CVS) from September 1984 to September 1986. He taught five classes per day in United States and modem world history. During that time, he had approximately six student aides, who received “service points” for performing such tasks as scoring papers.

Plaintiff testified that he met D.S. in January 1985, and soon thereafter D.S. asked to become one of plaintiff’s aides. D.S.’s duties included scoring papers and preparing lists of students who had unexcused absences from plaintiff’s classes.

He stated that D.S. went to plaintiff’s home on numerous occasions to score papers or to “do chores” such as cleaning and sorting record albums. D.S. was paid for the chores. Usually plaintiff asked D.S.’s mother for permission to have him come to plaintiff’s apartment, although sometimes D.S. told plaintiff that he already had his mother’s permission.

Plaintiff testified that on an evening in late February 1985, D.S. came to plaintiff’s apartment with L.P., a male juvenile. An adult male friend of plaintiff’s, Tony Johnson, was already at the apartment. D.S. came by without plaintiff’s permission to score papers. Plaintiff and D.S. graded papers while Johnson and L.P., the male juvenile, watched a movie on plaintiff’s television in the bedroom. Plaintiff testified that he could not see the bedroom from the kitchen where he and D.S. worked.

Plaintiff testified that he knew L.P., the male juvenile, and Johnson had previously had sexual relations because Johnson told him so in November 1984, when plaintiff first met L.P. Plaintiff was not aware that L.P. was a minor or that he had been a student at CVS.

Plaintiff testified that while Johnson sometimes smoked marijuana in his apartment, neither of the juveniles, D.S. or L.P., had done so. He also testified that he had never seen D.S. drink an alcoholic beverage in his apartment and that when all four were together, Johnson drank alcoholic beverages but D.S. and L.P. had not. Plaintiff also testified that he never engaged in sexual relations with D.S. or L.P. and never saw Johnson engage in sexual relations with D.S. or L.P.

Plaintiff testified that on several occasions in the spring of 1985 he gave both D.S. and L.P. money for car fare when they stopped by his apartment and asked for it.

Plaintiff also testified that in May 1985, he gave his keys to a student named W.B. to get a typewriter from his automobile. D.S. offered to show the other student where plaintiff’s automobile was. Plaintiff was subsequently informed that his automobile had been in an accident and was damaged. Plaintiff testified that he filed a complaint against D.S., but the complaint was not part of the record on appeal. The police reports indicated that both D.S. and the other student, W.B., had driven plaintiff’s automobile and caused an accident in the school parking lot. Subsequently, plaintiff told D.S. that D.S. could no longer be his aide. Plaintiff testified that D.S. became upset and threatened him.

D.S.’s mother testified that her son had been a good student before entering CVS but that his performance had deteriorated since that time. D.S. did not graduate from CVS because he dropped out of school in December 1986. At the time of the hearing, D.S. lived in Detroit, Michigan, and was studying for his GED. D.S.’s mother testified that she did not know why he left CVS. She confirmed that plaintiff had not been her son’s teacher.

L.P. testified that he had been at CVS for two semesters but not for the entire 1984-85 school year. L.P. testified that he met plaintiff through D.S. and through another person identified only as “George.” On a date which he could not recall but he thought was before Christmas 1985, L.P., D.S. and Johnson were at plaintiff’s apartment. L.P. testified that all four “got high” on rum and marijuana, including D.S. and L.P., and plaintiff and Johnson “went down” on D.S. and L.P.

When asked why he did not report the incident, L.P. answered “I never accused James Hall of nothing. I don’t know how this come about.” However, he testified he did answer questions when police officers came to interview him while he was in the Audy Home. L.P. affirmed that he never accused plaintiff of having sexual relations. L.P. stated that he had never been offered any “deal” for his testimony and that he had not been coerced into testifying. He stated that he had a juvenile charge pending when he was interviewed in the Audy Home, and has since been convicted of criminal sexual assault, his first and only conviction as an adult.

Johnson testified primarily by invoking his fifth amendment right against self-incrimination. Johnson did testify that he met D.S. and L.P. at plaintiff’s apartment on a date in April 1985. During that visit, Johnson had sexual relations with D.S. and L.P. and saw plaintiff having sexual relations with D.S. and L.P.

Johnson testified that he subsequently was charged with criminal sexual assault because of that incident, to which he pled guilty. He testified he was not coerced into answering the police officer’s questions regarding plaintiff’s involvement nor did he receive any promises of leniency. Johnson refused to answer questions regarding his relationship with plaintiff or with L.P. or regarding his use of marijuana.

Officer William O’Neil testified that he was a youth officer who arrested plaintiff and Johnson on a warrant based upon information he and others gathered from the victims and that he had signed the complaint. He had first interviewed D.S. in June 1986, then interviewed L.P.; both were at the Audy Home at the time of the interviews. O’Neil also interviewed Johnson while he was in custody. O’Neil testified that nothing was offered to L.P., D.S. or Johnson in exchange for their testimony, and that all three made their statements of their own free will.

Officer O’Neil stated that the investigation began with an anonymous letter which had been sent to the principal of CVS, and that he had been “directed” to D.S. both because D.S. had been plaintiff’s student aide and because he had been involved with an automobile accident involving plaintiff’s vehicle. D.S., the juvenile aide, did not testify.

Several witnesses testified on plaintiff’s behalf, including his brother William Spencer Hall, a friend and former student of plaintiff’s, Joseph Martin, Arieulas White, the teacher with whom plaintiff shared an office at CVS, Ray Williams, another teacher at CVS, and a more recent student of plaintiff’s, Louis Jolicoeur.

William Spencer Hall testified that he frequently visited his brother and often when he did there were students and others in plaintiff’s apartment. Hall saw D.S. in the apartment, cleaning and grading papers, and testified that he never saw D.S. smoke marijuana or drink alcoholic beverages. Hall knew of the accident D.S. had with plaintiff’s automobile. On cross-examination, Hall testified that while he loves his brother, he loves the truth more and would not lie for his brother.

Martin stated that he had known plaintiff since 1970 and helped plaintiff purchase his VCR. Martin testified that he might recognize D.S. but did not specifically recall him, and that he did not know L.P. He also testified that he never saw anybody smoking marijuana at plaintiff’s apartment.

White testified that he had known plaintiff for lVz to 2 years and thought he was a good teacher. His only basis for this judgment was his 19 years’ experience as a teacher, during which he had rated teachers for the Board and on his observations of plaintiff. White testified about an incident which occurred in May or June of 1985, when first plaintiff, then D.S., entered the social studies office. According to White, D.S. clearly “wanted to fight,” and plaintiff took him to the hallway.

Williams testified that he knew plaintiff as a colleague and thought plaintiff was a good teacher because Williams had observed him in the classroom. Williams had been to plaintiff’s apartment and had seen Johnson there but had not seen any students there. Williams testified that his opinion of plaintiff had not changed due to the charges because, in his opinion, the charges were not true.

Jolicoeur testified that he had been plaintiff’s aide for IV2 years. He also worked cleaning plaintiff’s apartment, for which he was paid in cash. This employment ended in approximately January 1986. Jolicoeur testified that he liked plaintiff and that, in general, plaintiff “is a nice human being.” Jolicoeur was not certain he would recognize either D.S. or L.P.

Over plaintiff’s objection, the Board offered, and the hearing officer permitted, Dr. Howard B. Levy to testify as an expert witness in child sexual abuse. Dr. Levy defined child sexual abuse and described the specific behaviors of victims and offenders. When given a hypothetical situation of facts very similar to those alleged to have occurred in the instant case, Dr. Levy gave his opinion that the youth would be abused, that the teacher had misused his authority, and that the student had been victimized. The addition of other factors, Dr. Levy testified, would only exacerbate the detrimental effects of the underlying actions.

At the end of the testimony, plaintiff’s counsel offered into evidence the contract between the Chicago Teacher’s Union and the Board. The hearing officer noted that contract had expired in the fall, but plaintiff’s counsel pointed out the contract was still in effect until the new one was adopted. Plaintiff’s counsel read into the record, without objection, section 34 — 1 of the contract, which states:

“No anonymous letter or material shall be placed in the teacher’s or other bargaining unit member’s file or be used in any proceeding or given any credibility anywhere in the Board of Education.”

Also admitted into evidence were plaintiff’s “Teacher Efficiency Record Card,” police reports for a March 23, 1985, “theft” of plaintiff’s automobile by one Laurence Stepney, a copy of the relevant sections of title 23 of the Illinois Administrative Code (23 Ill. Adm. Code §52.30 (1986)), a copy of the anonymous letter sent to the principal of CVS, reports of an accident involving plaintiff’s automobile in the CVS parking lot on May 9, 1985, listing both D.S. and W.B. as drivers of plaintiff’s car, plaintiff’s teaching service record, D.S.’s school records, plaintiff’s notice of termination from the Dallas Independent School District for administrative reasons, and plaintiff’s teaching certificate.

The hearing officer issued his 19-page opinion on June 8, 1988, in which he thoroughly analyzed the evidence and drew certain conclusions. We summarize his opinion as follows.

At the commencement of the hearing on the charges against plaintiff, the parties agreed that the issue in dispute between them was whether or not plaintiff engaged in inappropriate relations with students and juveniles under the age of 16 and whether or not such conduct was irremediable.

In the 1984-85 school year plaintiff was employed by the Chicago School District as a teacher assigned to Chicago Vocational High School and in approximately January 1985, D.S. became his student aide.

D.S.’s first visit to plaintiff’s apartment occurred in approximately January 1985. Subsequently in February 1985, D.S. again visited plaintiff’s apartment at which time L.P., a juvenile male, and Johnson were also present. All four “got high” on rum and marijuana.

Both plaintiff and Johnson had sexual relations with D.S. and L.P. In spring 1985, perhaps April, the same activities occurred. In spring 1986, a similar incident occurred involving plaintiff and D.S.

Subsequently the CVS administrative office received an anonymous letter which stated that plaintiff was involved in improper sexual activities with students. The letter was forwarded to the police for investigation. Officer O’Neil of the special investigations unit of the youth division investigated, interviewing both D.S. and L.P. Subsequently plaintiff and Johnson were arrested on criminal charges for the sexual activity. Johnson was convicted for his role in this incident. L.P. was subsequently convicted of an unrelated sexual assault.

In January 1987, the Chicago board of education adopted the charge of conduct unbecoming a teacher against plaintiff, and the school district sought his dismissal for sexual misconduct. The hearing officer found that if such activity occurred, dismissal was the proper penalty. The standard of proof is preponderance of the evidence. The Board contends it has met the standard. Plaintiff contends the Board has not met its burden.

While D.S. did not testify before the hearing officer and his whereabouts were unknown, both Johnson and L.P. did testify to the events and improper sexual behavior charged against plaintiff and to their participation in it. The hearing officer found their testimony consistent and credible. He found that L.P. confirmed the version of events described by D.S. in a statement made to the police. L.P. was promised no benefit for his statement, and L.P. did not accuse plaintiff on his own initiative but rather responded to police inquiries. The hearing officer noted that L.P.’s statement had not changed from his first police interview to his testimony before the hearing officer.

Johnson was convicted of sexual assault for his participation in this incident. The hearing officer noted that his testimony was the same as his prior statement to the police.

The hearing officer discredited plaintiff’s attempt to argue that D.S. had a motive to lie about these events because of his dispute with plaintiff over D.S.’s alleged theft of plaintiff’s car.

The hearing officer found the several character witnesses produced by plaintiff were unaware of the circumstances of this incident, and therefore, the testimony added no useful information to the proceeding. He found the testimony of D.S.’s mother unrealistic and not useful in his consideration of the pending charges.

The hearing officer concluded that “[plaintiff’s] conduct [was] criminal in nature. He committed criminal sexual abuse, violated the Illinois Liquor Control Act by giving liquor to persons under 21 years of age and also violated the Cannabis Control Act. As criminal conduct occurred, no warning [was] required and the conduct should be considered to be irremediable. [Plaintiff’s] conduct was of such nature as to preclude possibility of remediation.” The hearing officer also found that damage had been done to students (D.S.’s academic performance deteriorated, and L.P. was subsequently convicted of sexual assault), and the school and community had been damaged by the notoriety resulting from the incident.

The hearing officer stated that plaintiff contends the charge of “conduct unbecoming a teacher” cannot by itself serve as a basis for discharge, since it must be accompanied by specifications supported by proof sufficient to meet the preponderance standard. Plaintiff denied the charges of improper conduct with D.S., and since D.S. did not testify, plaintiff’s denial is undisputed. Plaintiff challenged the credibility of the testimony of Johnson and L.P. and their “hazy recollection” of the specific dates on which these incidents occurred.

Plaintiff contended that charges were brought 18 months after the incidents allegedly occurred. He received no notice of the investigation for the Chicago board of education or of the charges until he was removed from his duties, nor was he given an opportunity to remedy his conduct.

The hearing officer found that this was a credibility controversy and that the conflicting testimony must be viewed based on probabilities. He noted the consistent testimony (unwavering from their statements to the police) from two persons, Johnson and L.P., who were present when the incidents occurred. He found no history of any animosity between plaintiff and either witness and concluded that no motive was shown why they would have wanted to harm plaintiff by false testimony. The hearing officer found, therefore, that their testimony was credible and unbiased against plaintiff. He stated he gave great weight to the fact of Johnson’s conviction for the same event. While not bound by the determination of guilt in the criminal proceedings, the hearing officer stated he considered Johnson’s conviction as “yet another strand in the fabric woven against [plaintiff].”

The hearing officer found that because he had a great stake in the outcome, plaintiff’s unsupported denial of the events was found suspect when measured against the consistent testimony of Johnson and L.P. to the police and at the hearing. He gave little weight to D.S.’s involvement in the occurrences because D.S. did not testify.

The hearing officer found this proceeding was not brought under the union grievance procedures of the current labor agreement based on a contractual prohibition against placement of anonymous letters of complaint in the personnel file. Because the labor agreement did not prescribe the outcome of the controversy, it was given no weight. The hearing officer found that these occurrences were not a minor flouting of the conventions of society and that plaintiff’s behavior was misconduct of an extraordinarily serious nature. He concluded that improper sexual activity of a criminal nature did occur and that its damage to victims, school and community could not be remedied by a warning to plaintiff. The hearing officer made the following determination:

“Based upon the preceding discussion the conclusion is inescapable that [plaintiff] engaged in inappropriate conduct with students and juveniles and that his conduct is not remediable. Accordingly, his appeal [of the Board’s actions] must be denied.”

On administrative review, the circuit court judge considered the record, the findings and conclusions of the hearing officer, as well as the briefs and arguments by the Board and by plaintiff. Based upon his review of the above, the circuit court judge entered his final judgment affirming the decision of the Board as follows:

“The court affirms the decision [of the hearing officer] finding that it is neither against the manifest weight of the evidence nor contrary to the law. It is a very excellent record. It is obvious to the court that the hearing officer in this hearing did his job and I believe he reached the appropriate legal and factual decision.”

Plaintiff has appealed the judgment of the circuit court.

Initially we note that the final decision of any administrative agency may be subject to judicial review by the filing of a complaint and the issuance of summons within prescribed time limits. (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 101.) The scope of administrative review in the circuit court is as follows:

“The hearing and determination shall extend to all questions of law and of fact presented by the entire record before the court. No new or additional evidence in support of or in opposition to any finding, order, determination or decision of the administrative agency shall be heard by the court. The findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.” Ill. Rev. Stat. 1987, ch. 110, par. 3 — 110.

On administrative review, the circuit court is limited to a determination of whether the findings and decision of the administrative hearing officer are against the manifest weight of the evidence. (Wolfe v. Board of Education (1988), 171 Ill. App. 3d 208, 210, 524 N.E.2d 1177.) Our review of the circuit court judgment on appeal is limited to a determination of whether the trial court correctly determined the propriety of the hearing officer’s findings and decision and whether there is evidence in the record to support the conclusion reached by the hearing officer. To make this determination, we must, of necessity, review the record and the hearing officer’s findings of fact and the logical inferences he draws from the evidence, as well as the final conclusions in his decision.

First, plaintiff argues that the decision of the hearing officer is against the manifest weight of the evidence because the hearing officer misstated and neglected uncontroverted evidence. More specifically, plaintiff contends the hearing officer misunderstood the charges and specifications and the decision exhibits his confusion as to the evidence adduced.

Plaintiff contends that specifications 1 through 8 and specification 19 involve allegations of sexual activity between-only plaintiff and D.S. on two occasions when no other persons were present. Since D.S. did not testify at the hearing, plaintiff’s denial of the charges stands uncontroverted. The hearing officer, specifically noting the absence of D.S., stated he gave little weight to D.S.’s statement to the police but found that the credibility of plaintiff’s uncontroverted denial of the conduct charged in those specifications was suspect because of his stake in the outcome of the proceedings. We do not find such a conclusion to be contrary to the evidence.

Plaintiff argues that it is clear that the hearing officer misunderstood the charges and specifications when, in reciting the facts pertinent to the hearing, he refers to two separate dates, one in February 1985 and another “in the spring of 1985, perhaps in April,” when plaintiff, Johnson, D.S. and L.P. all engaged in sexual activities with each other. Plaintiff contends that specifications 9 through 18 all refer to only one occasion on which sexual activities among those four participants “occurred shortly before April 1, 1985.” He contends the decision is fundamentally flawed and is against the manifest weight of the evidence in part because the hearing officer based his conclusions on the belief that there were two incidents rather than one involving these four participants.

Plaintiff argues that the testimony of L.P., one of his prime accusers, and the testimony of Johnson refer to only one occasion when all four were present. He argues that the hearing officer’s findings should be set aside where there is no substantial evidence in the record to support them. Mohler v. Department of Labor (1951), 409 Ill. 79, 85, 97 N.E.2d 762; Rolando v. School Directors of District No. 125 (1976), 44 Ill. App. 3d 658, 661, 358 N.E.2d 945.

Plaintiff contends that the inconsistencies in the testimony of Johnson and L.P. as to the date of the occurrence, the room or rooms in which the activities took place, and as to which person interacted with which other person, render the hearing officer’s conclusion that both witnesses testified consistently erroneous and contrary to the manifest weight of the evidence when considered as purported proof of the Board’s specifications against him. He argues that where the hearing officer’s findings regarding witness credibility are based on “facts” shown by the record to be against the manifest weight of the evidence, the credibility findings cannot stand and may be reversed by the reviewing court. Mohler, 409 Ill. at 85; Dresner v. Regional Board of School Trustees (1986), 150 Ill. App. 3d 765, 774-75, 501 N.E.2d 983.

Plaintiff does acknowledge that in his testimony he stated that all four people allegedly involved were together in his apartment in February of 1985. He argues he is entitled to the presumption of innocence (Board of Education of Tonica Community High School District No. 360 v. Sickley (1985), 133 Ill. App. 3d 921, 926, 479 N.E.2d 1142) and that it was not his burden to prove himself innocent but, rather, it was the Board’s burden to prove him guilty of the charges by a preponderance of the evidence (Board of Education v. State Board of Education (1986), 113 Ill. 2d 173, 189, 497 N.E.2d 984). He concludes that because the hearing officer’s findings lack evidentiary support in the record, the decision should be set aside and the trial court’s judgment affirming the decision should be reversed. Pioneer Life Insur ance Co. v. Woodard (1987), 152 Ill. App. 3d 236, 245, 504 N.E.2d 230.

We note that at the onset of the hearing plaintiff and the Board stipulated that the issue to be determined was whether or not plaintiff engaged in inappropriate relations with students and juveniles and whether or not such conduct was irremediable. The Board contends, therefore, that there was only one charge against plaintiff, specifically, that he was guilty of conduct unbecoming a teacher. The Board contends the trial court was compelled by legislative directive to treat the findings and conclusions of the administrative agency on questions of fact as prima facie true and correct. (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 110.) The court may not substitute its judgment for the judgment of the administrative hearing officer in the exercise of his authority to review the agency’s actions unless the findings and judgment are clearly against the weight of the evidence or unless there is no substantial evidence to support them. (Mohler, 409 Ill. at 85.) On review it is not the duty of the court to reweigh the evidence; its duty is confined to the very narrow determination of whether the findings and decision are supported by the evidence or whether they are contrary to the manifest weight of the evidence produced at the hearing. Peterson v. Board of Trustees of the Firemen’s Pension Fund (1973), 54 Ill. 2d 260, 262-63, 296 N.E.2d 721, citing Cohn v. Smith (1958), 14 Ill. 2d 388, 395, 153 N.E.2d 83; Bayer v. Zoning Board of Appeals (1970), 126 Ill. App. 2d 374, 377, 261 N.E.2d 791.

The Board argues that a finding cannot be adjudged to be against the manifest weight of the evidence and the findings and decision may not be disturbed unless the opposite conclusion is clearly evident from the record (Rolando, 44 Ill. App. 3d at 661; Epstein v. Civil Service Comm’n (1977), 47 Ill. App. 3d 81, 84, 361 N.E.2d 782; Doran v. Department of Labor (1983), 116 Ill. App. 3d 471, 474, 452 N.E.2d 118), since reversal is not justified merely because an opposite conclusion is reasonable or because the reviewing court might have ruled differently (Fadler v. State Board of Education (1987), 153 Ill. App. 3d 1024, 1026, 506 N.E.2d 640). An opposite result must be compelling from the evidence for the reviewing court to reverse the circuit court judge’s affirmance of the hearing officer’s findings and ultimate decision.

The Board acknowledges it has the burden of producing sufficient proof of the facts charged in the specifications to establish plaintiff’s guilt by a preponderance of the evidence (Board of Education v. State Board of Education, 113 Ill. 2d at 189; Board of Education of Minooka Community Consolidated School District No. 201 v. Ingels (1979), 75 Ill. App. 3d 334, 337, 394 N.E.2d 69), but argues that the exact language of each specification need not be proven so long as the charges are supported by the preponderance of competent evidence (Sutton v. Civil Service Comm’n (1982), 91 Ill. 2d 404, 410, 438 N.E.2d 147). The Board contends it has produced the preponderance of competent evidence required to prove plaintiff guilty of the improprieties in the specifications and since the hearing officer’s conclusions were based on his determination of credibility, his decision must be affirmed. The circuit court judge agreed.

The fact finder has the responsibility to hear the testimony of witnesses, to determine their credibility and the weight to be given to the testimony of each witness and then to draw reasonable inferences from all evidence produced in support of the charges against the accused. The hearing officer acts as fact finder within the authority given him and it is his duty to weigh the evidence and reach his ultimate conclusion based on the entire body of evidence before him. (Bauske v. City of Des Plaines (1957), 13 Ill. 2d 169, 181, 148 N.E.2d 584; Oak Lawn Trust & Savings Bank v. Palos Heights (1983), 115 Ill. App. 3d 887, 893, 450 N.E.2d 788.) Unless an opposite conclusion is clearly evident (Doran, 116 Ill. App. 3d at 474) or unless the conclusion reached is clearly against the manifest weight of the evidence (Mohler, 409 Ill. at 85), neither the trial court on judicial review nor this court on appeal will or can substitute our judgment for the findings of the hearing officer.

Hearing officer Harry Graham thoroughly analyzed the evidence. He found eyewitnesses Johnson and L.P. to be credible when they testified as to an occasion where plaintiff, D.S., L.P., and Johnson were together in plaintiff’s apartment and explicit sexual activity by both adults with each of the minors occurred. He found them credible when they testified that all four of them smoked marijuana and drank alcohol on that occasion. He found Johnson’s testimony credible when he testified he was subsequently charged with criminal sexual assault because of that incident. He found plaintiff’s denials of the incident were suspect because of his self-interest in the outcome of the proceedings.

The Board contends that the hearing officer’s incorrect statement that the proofs established two separate dates on which similar behavior occurred among the same four participants was harmless error. In support of this contention, the Board argues that it was only obligated to prove the stipulated charge of whether plaintiff engaged in inappropriate relations with students and minors and was, therefore, guilty of irremediable conduct unbecoming a teacher regardless of whether the conduct occurred once or more than once. (Sutton, 91 Ill. 2d at 409-10.) The Board contends further that the charges were proven by a preponderance of the evidence where the witness testimony supported the conclusion that the charged conduct occurred on one occasion among the identified participants and where plaintiff, while denying the conduct, acknowledged that those parties were together in his apartment on or about the date specified in the charge. The Board asserts the hearing officer’s misstatement that misconduct was proven to have occurred on two separate occasions did not diminish the proof by preponderance of evidence of inappropriate behavior unbecoming a teacher which supports the Board’s dismissal of plaintiff.

Plaintiff also contends that the hearing officer improperly disregarded evidence favorable to him and incorrectly found that certain evidence had not been introduced. Specifically he contends the hearing officer found that the labor agreement between the Teacher’s Union and the Board was not in evidence when in fact the record discloses that the labor agreement was marked for identification and accepted into evidence without objection as plaintiff’s exhibit 9. Plaintiff refers us to the following finding by the hearing officer:

“[T]he absence of a Labor Agreement on the record serves to vitiate [plaintiff’s] argument that the contractual prohibition against placement of anonymous letters or materials in the personnel file or their use in any proceedings should be grounds for setting aside [plaintiff’s] dismissal.”

Plaintiff argues that an anonymous letter to his high school was forwarded to the police department for investigation and the police investigation then led to interviews with D.S. and L.P., who alleged sexual conduct with plaintiff, who was then arrested; his arrest led to the Board’s dismissal action. He argues that the school principal violated the union agreement by forwarding the letter to the police department thereby starting the whole chain of events that led to his dismissal.

He argues that the hearing officer incorrectly found that the labor agreement had not been introduced, and since it was not before him for consideration, the hearing did not occur under the labor agreement but was similar to a just cause discharge grievance. Plaintiff contends that since the hearing officer concluded that the labor agreement was not in evidence he reached the conclusion that the labor agreement does not govern the hearing. Plaintiff argues that this statement is made on the mistaken finding that the labor agreement was not in evidence and therefore the conclusion is against the manifest weight of the evidence.

Plaintiff argues that a “case can certainly be made” that if the hearing officer had correctly found the labor agreement was of record, he would have had to consider whether the evidence produced was “fruit of the poison tree” and whether the exclusionary doctrine then could be applied to an administrative hearing. Plaintiff argues that this error has seriously affected his rights and has prevented consideration of favorable evidence that properly should have been considered. We find that plaintiff failed to “make” the case he suggests, and we reject this argument.

The Board responds that the labor agreement was not admitted into evidence but rather union exhibit number 9 was only an excerpt from the collective bargaining agreement, article 34, section 34 — 1. The Board contends that the hearing officer did not disregard this evidence but made a determination that it was irrelevant to the pending charges of conduct unbecoming a teacher. There was no evidence that the anonymous letter was placed in plaintiff’s personnel file, but rather the letter was turned over to the police by the school principal for investigation. The Board undertook no direct investigation based on the letter. The Board argues the hearing officer correctly found that the proceeding before him for plaintiff’s dismissal did not occur as a grievance procedure under the labor agreement and correctly found that the labor agreement (as differentiated from an excerpt from the agreement) was not in the record and, absent the underlying agreement, plaintiff’s contention of error on this basis must fail.

We note that plaintiff cites no authority for his argument that the constitutional principle in criminal cases excluding evidence which is “fruit of the poisoned tree” should be applied to a teacher discharge case. In addition, the Board has argued that because the decision to discharge plaintiff was predicated upon his arrest for the improper conduct charged and was not prompted by the anonymous letter, the exclusionary rule is not applicable in the instant case.

Based upon the record before us, we conclude the hearing officer did not disregard evidence favorable to plaintiff nor was his decision contrary to the preponderance of the evidence.

Plaintiff next contends the hearing officer’s conclusion, that “no history of animosity between plaintiff and either of his accusers was shown,” improperly placed the burden on plaintiff to prove that Johnson and L.P. had a motive to fabricate their testimony or to conspire to harm plaintiff. Contending that he was entitled to a presumption of innocence (Board of Education of Tonica Community High School District No. 360, 133 Ill. App. 3d at 926). plaintiff has asserted that he did not have a burden to prove a witness’ motive to lie and that the Board had the burden to prove the charges and specifications by a preponderance of evidence (Board of Education v. State Board of Education, 113 Ill. 2d at 189). Yet, the credibility of the testimony of Johnson and L.P. was not increased or affected by the plaintiff’s failure to prove that they had a motive to lie.

Plaintiff argues that the hearing officer’s mistaken belief that plaintiff had a burden to show motive of the witnesses to testify falsely resulted in a flawed decision in which the findings of fact are not entitled to the conclusion that they are prima facie true, correct and binding. (Friesel v. Board of Education of Medinah Elementary School District No. 11 (1979), 79 111. App. 3d 460, 463-64, 398 N.E.2d 637.) Plaintiff argues for reversal on this basis.

The Board contends that the hearing officer’s discussion and analysis of the credibility of this testimony includes a consideration of whether either witness would have a motive to lie. He discussed the “high price” each witness paid in testifying against plaintiff, since in so testifying each witness had subjected himself to legal prosecution for his own participation. In keeping with his preamble comment, that this is a credibility controversy which must be viewed based on probabilities, the hearing officer concluded “[i]t is more plausible to believe that they testified as they did because the events to which they testified to [sic] actually occurred.” The Board contends that it is clear from this language that the hearing officer’s analysis merely explored whether or not they were motivated to lie and found the more probable conclusion was that they told the truth even though the truth was damaging to plaintiff, who was their friend. The Board argues that plaintiff did attempt to discredit this testimony by questioning them as to whether they had been offered a promise of favored treatment in their pending criminal cases. The hearing officer believed the witness testimony. We find no shifting of burden of proof to plaintiff and find no error in the conclusions of the hearing officer.

Plaintiff next contends that he was denied due process protection because he was unable to confront and effectively cross-examine his accuser. (Friesel, 79 Ill. App. 3d at 464; Morelli v. Board of Education, Pekin Community High School District No. 303 (1976), 42 Ill. App. 3d 722, 729-30, 356 N.E.2d 438.) More specifically, he asserts that the Board failed to produce D.S., who was alleged to have participated in the inappropriate conduct described in the charges and specifications. Plaintiff contends that testimony by Officer O’Neil of his initial interview with D.S., which occurred more than a year after the alleged incident and which subsequently led to plaintiff’s arrest and dismissal, in a very real sense made D.S. a witness against him. He contends that because D.S. did not testify, he was denied the opportunity to cross-examine this witness. Plaintiff contends also that because the hearing officer restricted the testimony of Johnson to those matters of which he had already been convicted and because Johnson was permitted to exercise his fifth amendment privilege against self-incrimination, plaintiff was effectively denied his right to cross-examine his accuser. He contends it was error for the hearing officer to permit Johnson to refuse to answer questions.

Plaintiff cites as authority for his right to cross-examine the witnesses against him Morelli v. Board of Education, Pekin Community High School District No. 303 (1976), 42 Ill. App. 3d 722, 730, 356 N.E.2d 438 (crucial to conducting a fair administrative hearing is the ability to cross-examine witnesses), Goldberg v. Kelly (1970), 397 U.S. 254, 25 L. Ed. 2d 287, 90 S. Ct. 1011 (due process requires an opportunity to confront and cross-examine adverse witnesses), and Lee v. City of Peoria (7th Cir. 1982), 685 F.2d 196 (under the Administrative Review Law the trial court has the duty to insure that due process and an impartial adjudication were afforded in the administrative hearing).

The Board distinguishes the Friesel and Morelli cases on which plaintiff relies in support of the proposition that he had a due process right to confront and cross-examine the witness against him. The Friesel case dealt with a teacher discharge pursuant to section 24— 12, which concerns removal or dismissal of teachers in contractual continued service (Ill. Rev. Stat. 1979, ch. 122, par. 24 — 12) and in dicta discussed the teacher’s right to a hearing affording due process protection. The Board contends, however, that section 24 — 12 dealt only with hearings to which tenured teachers were entitled prior to discharge from contractual continued service.

In Morelli the issue before the court was whether the teacher had received a fair hearing where a witness had a prior ex parte communication with the hearing body about the same testimony given at the hearing. The Board contends these cases do not apply here since D.S. was not called as a witness and plaintiff had ample opportunity to cross-examine Johnson regarding the issues pertinent to plaintiff’s dismissal. The Board contends it had no obligation to produce D.S., that plaintiff could have called him to rebut the Board’s evidence and the evidence produced through fellow participants and eyewitnesses Johnson and L.P. was sufficient to prove the charges of plaintiff’s sexual conduct with students and juveniles.

Johnson was a reluctant witness against plaintiff but the court order restricting questioning of Johnson so as to protect Johnson’s constitutional right against self-incrimination did not inhibit plaintiff from cross-examining him within the customary strictures imposed by his direct testimony. Plaintiff failed to object on this basis at the hearing and the Board contends he should not be allowed to raise the issue for the first time on administrative review as the basis for reversal. (Bowman v. Pettersen (1951), 410 Ill. 519, 532, 102 N.E.2d 787.) The Board contends plaintiff’s rights were not violated because D.S. was not a witness nor was he inhibited in his cross-examination of Johnson as to the real issues in the case. We agree, and inasmuch as plaintiff failed to make any substantive objections to Johnson’s testimony at the hearing, he has waived his right to raise the issue on appeal.

Plaintiff contends that the hearing officer failed to make specific findings of fact as to each charge contrary to the requirements of the statute (23 Ill. Adm. Code §52.80(a)(1986)) and, more specifically, failed to make factual findings as to specifications 1 through 8, specifications 9 through 18, and specification 19. Accordingly, plaintiff argues the record is clearly inadequate to support the conclusions in the hearing officer’s decision, and the case should be remanded. (Board of Education of Minooka Community Consolidated School District No. 201, 75 Ill. App. 3d at 337; Sanderson v. De Kalb County Zoning Board of Appeals (1974), 24 Ill. App. 3d 107, 111-12, 320 N.E.2d 54.) Plaintiff contends that the decision of the hearing officer is contrary to the manifest weight of the evidence, that the trial judge should have reversed his decision and that this court should reverse the trial judge’s order affirming the hearing officer’s decision.

In the alternative, plaintiff argues that the trial judge should have remanded this matter to the hearing officer for consideration of newly discovered evidence under authority given the trial judge in the Illinois Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 111(a)(7)). The decision of the hearing officer was issued on June 8, 1988. Nine days later, on June 17, plaintiff was acquitted of the criminal sexual charges against him by directed finding following the proofs produced in the State’s case in the criminal proceedings arising out of the same alleged acts as resulted in plaintiff’s dismissal. He argues that the hearing officer determined Johnson’s credibility as a witness to the occurrence of the specific acts of misconduct by giving “great weight to the fact that Johnson has been convicted of criminal sexual assault” for the same incident by “another independent tribunal.” While acknowledging he was not bound by that decision, the hearing officer concluded that tribunal’s determination was “another strand in the fabric woven against [plaintiff].” Plaintiff argues that Johnson pled guilty; his conviction, therefore, was not a determination following presentation of the State’s evidence but, plaintiff argues, resulted from a plea bargain. Plaintiff contends that because of the rationale of the hearing officer in giving “great weight” to Johnson’s conviction, the fact of plaintiff’s subsequent acquittal of criminal charges arising from the same incident is extremely material to his decision on the question of his dismissal as a tenured teacher. He argues that the case should be remanded for consideration of the newly discovered evidence.

The Board responds that plaintiff’s acquittal in the criminal proceedings nine days after the administrative decision was issued is not newly discovered evidence since the criminal charges and the Board’s charges against plaintiff are totally separate and distinct charges with different burdens of proof. A teacher dismissal case requires proof by a preponderance of the evidence whereas proof beyond a reasonable doubt is required for conviction of the criminal charges. The elements of the crimes of aggravated criminal sexual assault and aggravated criminal sexual abuse (the criminal charges brought against plaintiff) include considerations of whether force was used, whether the victim was harmed and the age of the victim and are substantially different from the elements involved in a charge of conduct unbecoming a teacher, i.e., here, inappropriate and unprofessional relations and physical conduct with students and juveniles. The Board argues that plaintiff’s conviction or acquittal of the criminal charges is not material in the discharge proceedings. We agree and conclude that remand for consideration of plaintiff’s acquittal of the criminal charges is not required or appropriate here.

For all of the foregoing reasons, the judgment of the trial judge affirming the decision of the hearing officer and affirming plaintiff’s discharge by the board of education of the City of Chicago is affirmed.

Affirmed.

EGAN, P.J., and McNAMARA, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHNNY PHILLIPS, Defendant-Appellant.
    First District (6th Division)
    No. 1—91—0100
    Opinion filed March 20, 1992.
    Michael J. Pelletier and Gordon H. Berry, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LaPORTA

delivered the opinion of the court:

Johnny Phillips, a 17-year-old high school student, was convicted of armed robbery in a jury trial. Phillips appeals, contending: (1) his counsel elicited prejudicial information from a State witness and therefore he was denied effective assistance of counsel; (2) the jury was improperly instructed about the reason for the State’s failure to seek a search warrant on defendant’s home; and (3) the trial judge relied on incorrect information and sentenced defendant to an excessive sentence of 15 years in prison.

At defendant’s trial, complainant Linda Jepsen testified that on November 15, 1989, as she was pulling into the alley behind her home she noticed a car a block away in the alley. The car was stopped there for a few minutes and then backed out and pulled away.

She testified that she then activated her electric door opener, backed her car into her garage and parked. She climbed out of the car, picking up her purse and athletic bag, and then leaned back to unbuckle her baby’s seat belt. As she did so, she realized a man was standing in the alley staring at her from about 18 to 20 feet away. She testified that he had on a red baseball cap, red starter jacket, black pants and gym shoes. She testified that she later told police the offender was a black male, whom she estimated was approximately 25 years old, 5 feet 9 inches tall and 175 to 180 pounds. Jepsen identified that person at trial as defendant.

She testified that she froze initially and then started yelling at the man not to come into the garage. She pressed the automatic door close button but the man looked from side to side and then entered the garage holding a silver and black gun. At trial she identified a .177 caliber spring-operated BB and pellet gun as the gun in question.

Jepsen testified that the man said “give me your purse” and then spun her around and pulled her purse from her shoulder. She testified that he immediately ran from the garage, sliding out under the garage door on his stomach as it was closing. When he was outside the door she saw the feet and part of the leg of a second person. She testified that after the door closed, she looked through a hole in the wall and saw him and another male person run eastbound down the alley.

Jepsen testified that she took her infant daughter inside and called police. She testified that the whole occurrence took about 60 seconds. She first identified defendant 10 weeks later on January 24, 1990, when police showed her an array of photos. She subsequently identified defendant in a lineup on February 2,1990.

She testified that at the time of the robbery she had $375 and several credit cards in her purse. She testified that she identified a gun, later recovered from her alley, as the gun the offender used. She stated that her purse was recovered but the money and credit cards were missing. She testified that $760 in charges were made on her Amoco credit card the night of the robbery.

Jepsen testified that police helped her put together a composite drawing of the offender but that she was not happy with the composite. “I told them it was similar but there were irregularities.” She testified that “for the most part” she had a good idea about the ages of students because of her job as a secretary at a high school.

Police officer Thomas Dvonch testified that on November 15 he responded to the robbery call and interviewed Jepsen, who described the offender as a “male black, approximately 5’ 9”, 175 pounds, and wearing a red baseball cap and a red Bulls starter jacket.” She told Dvonch that the robbery took “just seconds.” She told him the offender wore dark pants and had a large automatic handgun. He testified that he could find no fingerprints on the car. He testified that on November 16, 1985, he recovered an automatic pistol pellet gun found by a neighbor in the alley adjacent to the victim’s residence.

William Rice, the victim’s neighbor, testified that he discovered the gun by a bush near the place where the robbery occurred and turned it over to police.

Detective Leonard Jorgenson testified that the victim’s purse was found by a garbage truck driver from the Chicago Department of Streets and Sanitation and turned over by him to police. He testified that he returned the purse to the victim and also showed her the gun, which she identified as the gun used in the robbery.

Detective Kalita testified that he spoke with Jepsen the evening of the robbery and helped her prepare a composite drawing of the offender. He testified that the victim looked through several mug books but was unable to identify the offender from the books.

Kalita testified that he went to one of the gas stations where a charge was made on the victim’s Amoco card and learned the car license number of one of the persons using the card. He learned that the license plate was registered to Adel Curry in Chicago. Without objection, he testified that he spoke with an unnamed person who told him Curry and the defendant were related.

He testified that, as part of his investigation, he met Carl Curry at the police station and Curry appeared in a lineup viewed by the victim, but she did not identify Curry or anyone else in the lineup. Then, the following colloquy occurred between the prosecutor and Kalita:

“[PROSECUTOR]: After the lineup was over did you have an opportunity to speak with Carl Curry?
[KALITA]: Yes, I did.
[PROSECUTOR]: Without going into the substance of your conversation with Carl Curry, what did you do next, pursuant to your investigation?
[KALITA]: I obtained a photo of Johnny Phillips.”

Kalita testified that he took the photo of defendant, Phillips, placed it with five other photographs and on January 24 showed it to the victim, who identified defendant as the offender. Kalita testified that he arrested the defendant February 2 and the victim identified defendant in a lineup.

On cross-examination defense counsel asked Kalita whether he spoke to Carl Curry at the Oak Park police station and advised him that he was under arrest. The following colloquy then occurred:

“[DEFENSE COUNSEL]: So, then he knew he was a suspect at that time and he had a right to have an attorney?
[PROSECUTOR]: I’m sorry, Judge, I’m going to object. Did counsel ask — I don’t believe the question is clear. Was he advised of his rights at that time. I believe he was not under arrest.
[THE COURT]: I want to know how this is relevant? [sic]
[DEFENSE COUNSEL]: It is in the police report, this is how this Officer made this investigation, this is how this Officer decided to come and investigate Mr. Phillips. This is how he got his information to find out whether or not to investigate Mr. Phillips. I think it is relevant.
[PROSECUTOR]: Your Honor, it is hearsay.
[THE COURT]: I will allow you to ask a few more questions and then you proceed on to something else.
[DEFENSE COUNSEL]: Fine, Judge. Did Mr. Curry tell you he robbed Mrs. Jepsen?
[KALITA]: No, he didn’t.
[DEFENSE COUNSEL]: Did he tell you he thought he knew who might have robbed Mrs. Jepsen?
[KALITA]: Yes.
[DEFENSE COUNSEL]: Who did he tell you he thought might have robbed Mrs. Jepsen?
[KALITA]: Johnny Phillips.
[DEFENSE COUNSEL]: Did he tell you why he thought Johnny Phillips could have robbed Mrs. Jepsen?
[KALITA]: Because he and Johnny Phillips had been arrested in Chicago for robbery.
[DEFENSE COUNSEL]: Okay.
[KALITA]: And he felt that since this was a robbery I was investigating that Johnny Phillips might have done it.
[DEFENSE COUNSEL]: Did he tell you what kind of robbery that was in Chicago?
[PROSECUTOR]: I’m going to object to this.
[THE COURT]: Okay, Side bar.
(The following proceedings were had out of the presence of the jury.)
[THE COURT]: You know if the State’s Attorney had asked those questions, it would have been clearly reversible error.”

A short time later defense counsel questioned whether Kalita put the defendant in a lineup, asking: “Then did you find out Johnny Phillips was incarcerated and then bring him down for a lineup?” Kalita stated that he eventually did just that.

Defense counsel repeated the question two times a few minutes later, asking whether Johnny Phillips was in custody at the time he was brought in and arrested for the armed robbery. Later defense counsel asked, “Did you check to see whether Mr. Phillips was ever arrested for this kind of crime?” but the prosecutor objected and the objection was sustained.

At the close of the State’s case, defendant moved for a directed verdict which was denied. The defense attempted to call Carl Curry as a witness but Curry, who was in prison at the time, refused to testify and told his counsel that he would assert his fifth amendment right to remain silent.

Defendant’s mother, Ruby Phillips, defendant’s former girl friend, Jennifer Hill, defendant’s grandfather, Miller Gardner, defendant’s sister, Shekita Phillips, and a friend of Hill’s, Denise Cardine, all testified on defendant’s behalf, providing alibi testimony. They accounted for defendant’s whereabouts that evening by testifying he had come home early from school because he had a cold and had not left home that evening. As part of her testimony, Hill testified that the paramedics were called for her that evening after she tripped over a table at defendant’s home. She was nine months pregnant at the time.

Defendant testified that on November 15, 1989, he went to school for a half of a day and then went to Hill’s home for about two hours. He testified that around 2 p.m. he walked home and remained there the rest of the night. He denied ever owning a red starter jacket and denied robbing the victim or being in Oak Park on November 15. He denied holding or owning the gun found in the alley.

When asked whether he had ever robbed someone he stated: “Yes, I had an incident before this. They said before they brought this charge, I had an incident of robbing somebody where I had done something foolish and stupid. *** I had snatched this lady’s purse. And it was wrong. That’s the only thing I had ever did in my life, was snatched a lady’s purse. I think the Lord let me learn.”

He stated that he weighed about 145 pounds and had never weighed 180 pounds in his life. He stated that he was 5 feet 6 inches or 5 feet 7 inches.

In rebuttal the State submitted for the jury’s consideration a certified copy of a statement indicating defendant was convicted of robbery on May 22, 1990, and sentenced to two years’ felony probation. The State also called Rich Lopez, a records analyst for the Chicago fire department, who testified that he could find no record of an ambulance ever being called to defendant’s home to respond to a call about a pregnant girl having fallen.

After closing arguments, the jury found defendant guilty of armed robbery, and the trial judge sentenced him to 15 years’ incarceration. Defendant appeals his conviction and sentence.

Initially we consider defendant’s contention that he was denied effective assistance of counsel when his trial counsel elicited hearsay testimony about a suspect named Carl Curry’s statement to the police that defendant was the perpetrator and that Curry had committed a separate prior robbery with defendant. Defendant contends this testimony elicited by defense counsel was especially prejudicial because the State’s sole evidence against defendant was complainant’s identification testimony that she first identified Johnny Phillips in a photo array 10 weeks after the crime and her description of the offender differed from defendant’s appearance.

The standard of review for an ineffective assistance of counsel claim was enunciated in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. The Strickland standard was adopted by the Illinois Supreme Court in People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.

In Strickland the court stated that a defendant must show that his counsel’s performance was so deficient that it fell below an objective standard of reasonableness and that the performance prejudiced the defense of the case. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.

Defendant contends that his counsel committed a flagrant error which resulted in denying him effective assistance of counsel when counsel elicited hearsay testimony from Kalita with regard to defendant’s prior criminal record and Curry’s identification of defendant as the likely armed robber.

Defendant notes that the prosecutor admonished Kalita not to reveal the substance of the statement by Carl Curry during his direct examination. But then, in cross-examination of Kalita, defense counsel elicited hearsay statements from Curry about defendant’s likely connection with the Oak Park robbery and another robbery he and defendant committed in Chicago. Defendant contends that defense counsel compounded the error by continuing to refer to the “Chicago robbery” as if it were a fact instead of an allegation by Curry elicited through hearsay testimony. In addition, defendant notes that defense counsel made no objection when the State elicited testimony from Kalita that defendant was related to the person who owned the car involved when the victim’s Amoco card was used to charge several hundred dollars worth of purchases on the night of the robbery.

Defendant cites three United States Supreme Court cases and an Illinois Appellate Court case to support his position. Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620; Lee v. Illinois (1986), 476 U.S. 530, 90 L. Ed. 2d 514, 106 S. Ct. 2056; Cruz v. New York (1987), 481 U.S. 186, 95 L. Ed. 2d 162, 107 S. Ct. 1714; People v. Johnson (1990), 202 Ill. App. 3d 417, 559 N.E.2d 1041.

Defendant contends that the trial judge’s statements and the case law support his argument that if such evidence had been elicited by the State it would have been reversible error. Defendant rejects the State’s contention that defense counsel’s conduct could be categorized as tactical in nature. Counsel should have known that Carl Curry could not be called as a witness because he had the right and probably would invoke his fifth amendment privilege against self-incriminatory testimony. Counsel should have known that he could not elicit testimony about Curry’s past criminal record from Kalita because of hearsay restrictions.

From defense counsel’s comments in sidebars it is clear that defense counsel had not talked to Curry or his counsel and did not know how Kalita obtained Johnny Phillips’ name as a suspect in the Jepsen robbery.

In support of his position that where defense counsel affirmatively damages defendant’s case the trial judge should grant a new trial, defendant cites People v. De Simone (1956), 9 Ill. 2d 522, 138 N.E.2d 556 (ineffective assistance of counsel where counsel introduced evidence that his clients were evil men and hardened criminals who had committed numerous burglaries previously), People v. Salgado (1990), 200 Ill. App. 3d 550, 558 N.E.2d 271 (new trial granted where defense counsel elicits damaging confession from defendant), and People v. Lemcke (1980), 80 Ill. App. 3d 298, 399 N.E.2d 677 (new trial granted where defense counsel tendered instruction to the jury which allowed the jury to convict on the basis of an intent not charged in the information).

Defendant likens his case to People v. Royse (1983), 99 Ill. 2d 163, 457 N.E.2d 1217, where the court found defense counsel’s representation ineffective after counsel failed to object to damaging hearsay testimony, offered opinions, summarized conversations without foundation and volunteered incriminating information about other drug transactions in which defendant was involved.

Defendant rejects any contention that eliciting the hearsay evidence by his trial counsel might have been harmless error. Defendant argues that the only other evidence linking defendant to this crime was the victim’s eyewitness identification. He argues that the United States Supreme Court has noted the limitations of eyewitness identifications. United States v. Wade (1967), 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (The vagaries of eyewitness identification are well known).

In addition, defendant contends the victim’s testimony here was based on “just seconds” or “sixty seconds” observation of the offender. Her initial identification of defendant came 10 weeks after the incident and her physical description of the offender differed substantially from the defendant’s actual description.

Defendant contends that this conduct places defense counsel’s representation of him squarely within the definition given in Strickland of a “reasonable probability that the outcome would have been different but for counsel’s conduct.” The court defined reasonable probability as “a probability sufficient to undermine the confidence in the outcome.” (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) Defendant argues that the ultimate focus must be on the fundamental fairness of the proceeding (People v. Wilson (1986), 149 Ill. App. 3d 1075, 1078, 501 N.E.2d 863), and that when viewed by this standard, defense counsel’s actions could not be deemed effective representation.

Defendant also contends his counsel committed prejudicial error by failing to object to the State’s amendment of its witness list to include the name “Rich Lopez” without a description of his probable testimony. Defendant contends that under Supreme Court Rule 412(a) the State is required not only to identify witnesses it intends to call in rebuttal but must include a “specific statement as to the substance of the testimony such witnesses will give at the trial of the cause.” 134 Ill. 2d R. 412(a).

Defendant contends that his counsel’s failure to object at trial to the State’s listing of Lopez’ name on the witness list, without more, effectively waived his right to object on appeal to the State’s failure to comply with Rule 412. (People v. Nelson (1980), 92 Ill. App. 3d 35, 415 N.E.2d 688.) Defendant notes that his counsel’s only comment after the State’s witness list was amended was: “That’s fine, I have no problem with that.”

The State contends that defense counsel acted competently and therefore defendant is not entitled to a new trial. The essence of the State’s argument is that “defendant was not deprived of effective assistance of counsel because his trial counsel’s conduct fell within the wide range of reasonable professional assistance” and defense counsel’s conduct “provided defendant with a fair trial.”

The State argues that defendant must show actual incompetence on the part of the attorney. (Strickland, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) There must be a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. Albanese, 104 Ill. 2d at 525.

The State also cites two other cases in support of its argument, People v. Puente (1984), 125 Ill. App. 3d 152, 158, 465 N.E.2d 682 (defendant may not rely on speculation as to the outcome of the case had the representation been of higher quality), and United States v. Cronic (1984), 466 U.S. 648, 656 n.19, 80 L. Ed. 2d 657, 666 n.19, 104 S. Ct. 2039, 2045 n.19 (If no bona fide defense exists, defense counsel cannot create one but at trial still must hold the prosecution to its heavy burden of proof beyond a reasonable doubt).

The State contends that defense counsel’s failure to object to the testimony of Lopez did not prejudice defendant because defense counsel had an opportunity and did cross-examine Lopez and challenged the assertions he made. The State denies that it withheld Lopez’ name from its list of possible witnesses, noting that it amended its witness list on the day the jury was picked and potential jurors were asked if they knew Lopez.

As to the hearsay testimony elicited from Kalita, the State argues that the counsel’s actions were “sound trial strategy.” The State contends that defense counsel was trying to establish reasonable doubt as to Curry’s involvement in the Oak Park armed robbery. The State also argues that the record establishes that defense counsel’s strategy was to discredit the implication by Curry of defendant’s participation or at least show Curry was involved in the robbery and therefore imply a reason why Curry might attempt to implicate defendant.

The State argues that defense counsel indicated his intent to call Curry as a witness and therefore could have asked Curry why he implicated defendant.

The State distinguishes Bruton on its facts because it involved a co-defendant’s incriminating pretrial confession, whereas this case involved a single defendant. The State distinguishes Cruz and Lee for the same reason. The State distinguishes Johnson by arguing that the Johnson court found reversible error when the trial court permitted the use of hearsay identification to strengthen or corroborate a weak identification of the defendant. The State argues that no hearsay identification is involved here.

The State contends that even if defense counsel’s action was error, defendant has failed to show the action resulted in substantial prejudice that would have affected the outcome of his trial. The State argues that defense counsel made a strong opening statement, a strong closing argument, adequate cross-examination of State witnesses and timely objections to witness testimony.

The State challenges defendant’s contention that the victim’s identification of defendant was weak, noting that the garage and alley were well lit, the victim faced defendant for up to one minute and was estimating height and weight based on the offender wearing a heavy jacket. The State argues that few persons are capable of making accurate height and weight estimates and therefore discrepancies alone are not decisive factors. People v. Slim (1989), 127 Ill. 2d 302, 307, 537 N.E.2d 317.

We disagree with the State’s characterization of defense counsel’s actions as “sound trial strategy.” The trial court recognized the problem of introducing the hearsay testimony at the time the testimony was given and stated so in the sidebar. The prosecutor also recognized that improper testimony was being admitted when he objected to the hearsay and its relevance several times during the course of defense counsel’s cross-examination.

Because the hearsay testimony from Kalita was devastating to defendant’s case, we find that a mistrial would have been proper. Since defense counsel failed to move for a mistrial, we find his conduct fell below the permissible standards of effective assistance as articulated in Strickland and Albanese.

Defendant also asks us to consider whether the jury was improperly instructed on the question of the police’s failure to search defendant’s apartment and whether defendant’s sentence was excessive. Because we are reversing and remanding this cause for a new trial, we need not decide these issues.

For the foregoing reasons, the defendant’s conviction for armed robbery is reversed and his sentence vacated and the case is remanded for a new trial.

Reversed and remanded.

EGAN, P.J., and RAKOWSKI, J., concur.


author: PRESIDING JUSTICE EGAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAY ANTHONY HARRIS, Defendant-Appellant.
    First District (6th Division)
    No. 1—90—2362
    Opinion filed March 20, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Mark Floyd Pasterski, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Kevin Sweeney, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE EGAN

delivered the opinion of the court:

The defendant, Ray Anthony Harris, was indicted for first degree murder; a jury, after having been instructed on self-defense, first degree murder and second degree murder, found the defendant guilty of first degree murder. He was sentenced to 30 years’ imprisonment. The defendant’s sole contention is that the instruction on second degree murder coupled with the State’s closing argument constituted reversible error.

On February 13, 1989, the defendant, Ray Anthony Harris, shot John Peters to death on the sidewalk in front of Vincent Paxton’s house at 511 South Kilbourn in Chicago. According to the deputy medical examiner, Peters was shot in the back, in the knee, in the face, and in the side of the head. Two of the bullets travelled in an upward direction through Peters’ body exiting through the top of his skull. The path of the bullets was consistent with Peters being shot while lying on the ground.

Three eyewitnesses, David Love, Anthony Smith and Vincent Paxton, testified for the State. Their collective testimony established the following.

On February 12, 1989, the defendant and John Peters had a fight over a young woman named Brenda Matthews; the defendant bested Peters, who was “all beaten up” and “upset” the next day.

Smith and Paxton were with Peters the next day at Paxton’s home when the defendant drove up in his Oldsmobile car. Love was in a vacant lot across the street from Paxton’s house. Peters went outside despite the fact that Paxton told him to stay in the house. Paxton and Smith watched from the window of Paxton’s house. Peters and the defendant were outside talking, and Smith heard Peters say, “I just want to fight, I don’t want no pistol play.” Peters began to walk away with his back to the defendant. The defendant pulled out a gun and began firing at Peters. Smith heard three or four shots, then a pause, and then three more shots. The defendant fired shots into Peters while he was lying on the ground. The defendant touched Peters, turned him over and then ran off. None of the three witnesses saw Peters with a gun.

Assistant State’s Attorney Mary Moore testified that she took a statement from the defendant which was transcribed by a court reporter at the defendant’s request. When the statement was concluded, Moore read it aloud to the defendant, who initialled each page and signed the last page. In that statement the defendant said that he went to Ruby’s Tavern at the corner of Harrison and Kilbourn to pick up his brother. His brother had asked him if he had a gun at the house. The defendant did not have a gun, so he brought his friend Ray, who had a gun. Ray’s friend “Nuke” also came along. They arrived at Ruby’s tavern around 8 or 8:15 p.m. They parked the car, and the defendant exited from the back seat. Peters came running down the street, shouting the defendant’s name. The defendant went back to the car and got Ray’s gun from the back seat. He held the gun behind his back. Peters said that he wanted to fight again. The defendant said, “If you want to fight again we can fight again.” Peters said, “[I]t don’t have to be no gun play, we can fight head to head.” Peters’ hands were in his pockets. The defendant asked Peters if he had a gun, and Peters pulled his hands out of his pockets and opened his palms.

The defendant turned away to give Ray the gun, and Peters turned around with his back toward the defendant and made a motion with his hands in front of his body. The defendant could not see his hands, and he could not tell whether he had a gun. The defendant panicked and started shooting. He shot six times, until the gun was empty. While he was shooting, he was running toward Peters. Peters fell to the ground and was lying on his side. The defendant pulled him over by his left shoulder and put his hand inside Peters’ right jacket pocket. He found a gun inside the pocket. He held up the gun and said, “He got a gun. I knew he had a gun.” Nuke hollered, “Come and get in the car.” The defendant got in the car, and he was yelling and waving the guns around. Nuke took the guns away from him, and they drove off.

The defendant’s testimony varied from his statement. He testified that when he parked his car on Kilbourn and was walking toward Ruby’s Tavern, Peters started running down the street, calling the defendant’s name. Peters stopped approximately six to eight feet from the defendant and said that he wanted to fight. The defendant told Peters that he would not fight with him. Peters said, “You know, I feel I am a better man than you, I can beat you, but I was drunk last night.” The defendant said, “You saw I had been drinking too last night. That was the only reason I fought you last night, but I ain’t going to fight you again.” Peters walked away, and the defendant went into the tavern. Someone told him that his brother had just left but would be back soon. The defendant went back out to the car and told his friend Ray that he was going to wait for his brother to return. Ray had noticed that Peters had a gun, so he gave the defendant his .38 caliber gun.

Peters fired once at him from the sidewalk in front of 511 South Kilbourn, with a gun he got from Vincent Paxton. The defendant fired back, and Peters fell onto the gate in front of the house. While he was holding onto the gate, Peters shot two more times. Peters fired a total of five shots at the defendant, who was approximately 40 feet away from him.

After the shooting stopped, the defendant walked up to Peters and picked up the .22 caliber gun that was lying on the ground beside him. The defendant took both guns to a location near Division and Laramie and threw them in a garbage can.

The defendant also testified that Assistant State’s Attorney Moore handed him a statement that the police said he had written. The defendant told her that he did not write it. Moore asked him to read it, and he told her that he could not read. The last year of school the defendant completed was eighth grade. He could not read the statement, but the “guy in the cell” read it to him. He remembered signing the statement, but he did not read it. An officer told him to sign it so that his mother could come and pick him up. He told Moore that Peters had fired a gun at him. He denied that Nuke, also known as Clarence Walker, was in the car with him and Ray.

Clarence Walker had known the defendant all his life. He had known Peters for two years. He arrived at the area of Harrison and Kilbourn about 8 or 8:30 p.m.; he was there to buy cocaine for his girlfriend. He saw several persons on a porch. The only one of the persons that he knew was someone named Anthony, who went by the nickname “Ant.” Walker saw Peters on the sidewalk, shooting a pistol at the defendant, who was standing about 50 or 60 feet away from Peters.

Walker testified that Ant fired the first shot, then Peters fired, and then Ant fired again. Walker ducked down beside the car, and he heard at least six more shots. He did not realize that the defendant was shooting until he looked up. When he looked up, he saw Peters turn around and “hit the gate.” Ant ran away. After about the fifth shot, Peters fell on the sidewalk in front of the house. The defendant walked up to him and stood over him and clicked the pistol. The defendant then left. Walker did not go to the police station. He had previously been convicted for possession of a controlled substance. The identity of Ant was never actually established.

Joseph Szybist, a court reporter who had transcribed the defendant’s statement at the police station, testified in rebuttal that the statement was a true and accurate transcription of the conversation that took place between Assistant State’s Attorney Moore and the defendant.

The jury was instructed with Illinois Pattern Jury Instructions, Criminal, Nos. 2.03A, 7.05A and 7.06A (2d ed. Supp. 1989) (hereinafter IPI Criminal 2d (Supp. 1989)). The defendant did not object to any of the instructions.

IPI Criminal 2d No. 2.03A (Supp. 1989) provides in part as follows:

“If the State proves beyond a reasonable doubt that the defendant is guilty of first degree murder, the defendant then has the burden of proving by a preponderance of the evidence that a mitigating factor is present so that he is guilty of the lesser offense of second degree murder, and not guilty of first degree murder. In deciding whether a mitigating factor is present, you should consider all of the evidence bearing on this question. The defendant is not required to present any evidence in order to establish the existence of a mitigating factor.”

IPI Criminal 2d No. 7.05A (Supp. 1989) provides that a mitigating factor that could reduce the offense of “first degree murder to the lesser offense of second degree murder” exists if the defendant believes that his use of deadly force was justified but his belief was unreasonable.

IPI Criminal 2d No. 7.06A (Supp. 1989) sets forth the elements of first degree murder which the State must prove. That instruction also provides that the jury may not consider whether the defendant is guilty of the lesser offense of second degree murder until and unless the jury has first determined that the State has proved beyond a reasonable doubt each of the elements of first degree murder. The instruction also repeats that the defendant has the burden of proving by a preponderance of the evidence that a mitigating factor is present so that he could be guilty of the lesser offense of second degree murder instead of first degree murder.

During the closing arguments, the assistant State’s Attorney said this:

“Defense counsel wants you to believe that the defendant was justified in his actions. That it wasn’t first degree murder. But in order to believe that, you have to believe the defendant. *** He wants you to believe [the statement is] not his words. That the conversation he had with the [S]tate’s [Attorney never took place.”

Over a two-hour period during deliberations, the jury requested and received additional instructions. The exchanges and the times they took place are noted as follows:

“JURY (7:25 p.m.): We need further clarification on self-defense and mitigating circumstances for this case. Also clarification regarding second degree murder.
JUDGE (7:40 p.m.): What is it that needs to be clarified?
JURY (7:47 p.m.): Please clear up the fact of John Peters having a gun or not.
JUDGE (7:50 p.m.): You have heard the evidence — you will have to answer this question based upon your collective recollection of the evidence.
JURY (8:20 p.m.): Could we have a more complete understanding of second degree murder?
JUDGE (8:25 p.m.): Specifically what is it you don’t understand?
JURY (8:40 p.m.): If we all agree on first degree, how can we arrive at second degree?
JUDGE (9:13 p.m.): If you all agree that the defendant is guilty of first degree murder, then and only then may you consider whether defendant is guilty of second degree murder. You should then decide whether the defendant has proved by a preponderance of the evidence that he is guilty of second degree murder instead of first degree. If however you all agree that the defendant is not guilty of first degree, your deliberations must end and you should return a verdict of not guilty[.]”

The jury returned a verdict of guilty of first degree murder, and the judge sentenced the defendant to a term of 30 years’ imprisonment.

In an abstract sense, we cannot dispute the defendant’s contention that the second degree murder instruction is far from crystal clear. The same can be said for the defendant’s argument. Indeed, we have considerable difficulty in determining precisely what the defendant’s argument is. The heart of his argument in his brief is as follows:

“IPI’s 7.05A and 7.06A combined, have an inherent weakness. The court’s final instruction and the State’s highlighting to the jury that the defense must carry the burden of production as to justification (‘to believe that [justification], you have to believe the defendant’ ***), enlarged that inherent weakness to the extent that it forced the defendant to carry a burden which is improper under Reddick. [People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141.]
Where, as here, the State presented no evidence as to justification, the defense is, indeed, required to present ‘some evidence thereon.’ *** Ill. Rev. Stat. 1987, ch. 38, §3 — 2(a). Yet, the defendant was then required to carry the burden of proof that that same belief was unreasonable. IPI 2.03A does not cure the situation, it just confuses the jury by informing them that the defense can prove the condition that the belief was unreasonable without presenting any evidence — this being after the defense just presented evidence disproving that same condition.”

The defendant concedes that the statute upon which the instruction was based is constitutional. (See People v. Lyons (1991), 213 Ill. App. 3d 617, 572 N.E.2d 1163; People v. Gore (1991), 212 Ill. App. 3d 984, 571 N.E.2d 1041.) He also concedes that the instructions were proper and that the State’s argument was proper. He finds no fault with the answers the judge made to the jury’s questions (nor did he at the time they were made), and he provides us with no solution to the problem, whatever it may be.

At the outset we agree that the defendant has waived any argument by failing to object to the jury instructions made before and after deliberation began or to the prosecutor’s remarks and by failing to proffer any alternative jury instructions and by failing to raise the issue in his post-trial motion. (People v. Britz (1988), 123 Ill. 2d 446, 528 N.E.2d 703.) We also believe that the plain error doctrine is not applicable here. That doctrine is applied where the evidence of the defendant’s guilt is closely balanced or where the error denied the defendant a fair trial. (People v. Shields (1991), 143 Ill. 2d 435, 575 N.E.2d 538.) The evidence in this case was not closely balanced; the State’s case was a strong one. Three eyewitnesses testified that the victim was unarmed. Only the defendant and Clarence Walker testified that the victim had a gun, which was never found, and their testimony conflicted widely on material issues, such as who fired the first shot. Indeed, their versions of the events are irreconcilable. The defendant made no mention of Ant. The defendant was not wounded, and Peters was shot in the back. Some of the gunshot wounds were sustained while the victim was lying down. The defendant made a very damaging statement. Consequently, we conclude beyond a reasonable doubt that, if any error occurred, the instructions and argument by the State did not improperly affect the jury’s deliberation.

Waiver aside, we do not find that any error occurred. We interpret the defendant’s argument to be based on his allegation that the State’s Attorney told the jury that “defense must carry the burden of production,” that is, the burden of going forward with evidence, in order to justify a finding that the defendant acted in self-defense. The defendant’s allegation is not only inconsistent with his statement that the argument was proper, it is also factually incorrect. The State’s Attorney told the jury, not that the defendant had the burden of production of evidence, but simply that the jury could not find the defendant not guilty based on justification unless it believed the defendant’s testimony. This was a clearly proper argument that dealt with credibility only and not with any burden of proof.

Although a misstatement of the defendant in his brief is not controlling in our decision, we deem it appropriate to correct it. The defendant maintained that the “State presented no evidence as to justification” and that, therefore, the defendant was required to present “ ‘some evidence thereon.’ ” That statement is based on speculation and is an assumption we are not willing to accept. A trial judge is justified in giving a self-defense instruction if there is slight evidence to support it, regardless of its source and even if the evidence upon which the judge relies is contrary to the defendant’s own testimony. (People v. Bratcher (1976), 63 Ill. 2d 534, 394 N.E.2d 31; People v. Robinson (1987), 163 Ill. App. 3d 754, 516 N.E.2d 1292.) In the statement made to Assistant State’s Attorney Moore, the defendant said that Peters turned with his back toward the defendant and made a motion with his hands in front of his body. He could not tell whether Peters had a weapon. After he found a gun inside Peters’ pocket, he said, “I knew he had a gun.” We cannot say with certainty that the trial judge would not have deemed that statement of the defendant to Moore to be the “slight evidence” that would justify giving a self-defense instruction. By these observations, we do not mean to imply that the judge would have been required to give a self-defense instruction based on the defendant’s statement to the assistant State’s Attorney.

The only case cited by the defendant is People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141. In Reddick, the court noted that the murder instruction placed upon the State the burden to prove that the defendant did not have a reasonable belief of justification; however, the voluntary manslaughter instruction required the State to prove that the defendant did have an unreasonable belief of justification. The court said, “These instructions essentially assure that, if the jury follows them, the jury cannot possibly convict a defendant of voluntary manslaughter.” (123 Ill. 2d at 194-95.) In this case, the only burden of proof placed on the defendant was to prove by a preponderance of the evidence that he had an unreasonable belief of justification.

Reddick indicates that a court should examine the entire record in determining whether the jury was properly instructed. (People v. Shields (1991), 143 Ill. 2d 435, 445, 575 N.E.2d 538, 543, citing Reddick, 123 Ill. 2d at 198.) The entire record shows that the jury was instructed that the State had the burden of proving guilt beyond a reasonable doubt and that the defendant was not required to present any evidence in order to establish the existence of a mitigating factor. They were properly instructed on the elements of first degree murder, circumstances justifying a killing, and the mitigating factor which would reduce the charge against the defendant to second degree murder. The IPI instructions accurately stated the applicable law; consequently, the trial judge was required to use them. (134 Ill. 2d R. 451.) Moreover, in Reddick, it was not merely the confusing nature of the instructions which required a new trial, but also the fact that the jury was never apprised of the correct burden of proof. People v. Kolichman (1991), 218 Ill. App. 3d 132, 145, 578 N.E.2d 569, 578, citing Reddick, 123 Ill. 2d at 198-99.

Last, even if Reddick were applicable to this case, we repeat that any error may be deemed harmless if the jury’s verdict would have been the same if it had been instructed properly. (People v. Mackey (1990), 207 Ill. App. 3d 839, 566 N.E.2d 449.) Considering the quantum of the State’s evidence, we conclude that the jury’s verdict would have been the same.

The judgment of the circuit court is affirmed.

Judgment affirmed.

McNAMARA and RAKOWSKI, JJ., concur.