author: JUSTICE LINN

text:
    CHIEF JUDGE OF THE CIRCUIT COURT OF COOK COUNTY, Petitioner-Appellant, v. AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 31, AFL-CIO, et al., Respondents-Appellees.
    First District (4th Division)
    No. 1—90—3692
    Opinion filed May 14, 1992.

      Office of the Public Guardian (Patrick T. Murphy and Lee Ann Lowder, of counsel), and Office of the Chief Judge (Margaret Kostopulos, of counsel), both of Chicago, for petitioner.
    Roland W. Burris, Attorney General, of Springfield (Ann Plunkett-Sheldon, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois State Labor Relations Board.
    Cornfield & Feldman, of Chicago (Stephen A. Yokich, of counsel), for other respondent.
   JUSTICE LINN

delivered the opinion of the court:

The American Federation of State, County and Municipal Employees, Council 31, AFL-CIO (the union), petitioned the Illinois State Labor Relations Board (the Board) for certification as the collective bargaining representative of certain employees of the office of the Cook County public guardian. The union sought certification of a bargaining unit composed of professional and nonprofessional employees. The unit would also include attorneys who worked in the office.

Following an administrative hearing, a hearing officer issued a recommended decision. The hearing officer found that the proposed bargaining unit, with some modification, was appropriate and directed an election within the unit for representation. On review, the Board modified and adopted the recommended decision of the hearing officer and upheld his direction of election. An election was held and the union prevailed. The Board certified the union as the exclusive bargaining agent for the unit.

The chief judge of the circuit court of Cook County, through the Cook County public guardian, Patrick Murphy, seeks a partial reversal of the Board’s order. The public guardian assigns error to the Board’s reasoning and result.

We affirm the order of the Board in part and reverse in part.

Background

A

The record contains the following pertinent facts. Pursuant to statute, the office of the Cook County public guardian is a county office under the authority of the chief judge of the circuit court of Cook County. The chief judge appoints the public guardian, who holds the office “at the pleasure of the chief judge.” (Ill. Rev. Stat. 1989, ch. llOVa, par. 13 — 1.1.) The parties stipulated that the chief judge was the employer.

The trial court appoints Murphy to represent persons who are adjudged to be incompetent because of either age or physical or mental disability. A trial court appoints Murphy in a case individually rather than the public guardian’s office in general. However, because of the large volume of cases in which Murphy is appointed, Murphy delegates over 90% of the decision making in the case to the attorneys working under him. Murphy testified that his attorneys “have almost unfettered discretion on site to make decisions.” Indeed, “nine times out of ten,” Murphy does not even know what decisions his attorneys make with respect to their cases.

The public guardian’s office has three separate divisions: guardianship, juvenile, and divorce. The office employs approximately 55 attorneys designated guardians ad litem (GAL), in addition to numerous social workers and support personnel. The GALs are ranked according to their responsibilities, ranging from GAL I through GAL IV.

In the guardianship division, Murphy is appointed guardian to represent legally incompetent persons, most of whom are elderly, or those person’s estates. In most cases, Murphy serves as guardian of both the ward and the ward’s estate. Murphy is responsible for making not only litigation decisions on behalf of his wards, but also “life” decisions as well. The hearing officer found that “Murphy is responsible for deciding how disabled people spend their money and where they live, selecting responsible people to care for them, and maintaining or disposing of their real and personal property.”

Murphy delegates almost all decision-making responsibilities to members of his staff because the case load, approximately 21,400 wards and clients, is too high for him to handle by himself. However, Murphy retains a fiduciary responsibility to all of the wards and he is accountable for every decision made in the office. Murphy has the authority to override the decisions of his staff members.

The guardianship division includes 6 GALs, 15 social workers, and several bookkeepers and housekeepers. The hearing officer found as follows:

“Once Murphy delegates a case in the Guardianship division to a lawyer, that lawyer represents Patrick Murphy, the court appointed guardian of the disabled ward. The lawyers are responsible for and are expected to make decisions based on what they believe Murphy would do in any particular situation. Although the attorneys in the Guardianship division are required by law to adhere to certain procedures in Probate Court, they are granted under Illinois and common law, broad discretion in making litigation decisions on behalf of their clients.
Murphy attends meetings with his attorneys on a regular basis. Although Murphy does not direct the attorneys on how to manage their cases, he does encourage them to speak with him if they have any questions. The lawyers generally make more than 98 percent of all decisions on their own without any input from Murphy. However, in a very close case, because Murphy is the ‘client’, the lawyers will speak with Murphy about how to handle the case. Typically, lawyers will approach Murphy with questions between ten and 25 times each week. Overall, the lawyers make hundreds of thousands of decisions a year independent of Murphy. There are very few formal meetings between Murphy and the Guardianship lawyers.”

In the juvenile division, Murphy represents juveniles in child abuse an1 neglect matters in addition to delinquency cases. The trial court appoints Murphy to serve as a juvenile’s guardian ad litem and attorney. In addition to making litigation decisions, Murphy is responsible for determining where the juvenile lives.

As with the guardianship division, Murphy delegates 98% of all decision-making authority to GALs in the juvenile division. The division includes 41 GALs, 15 social workers, and 10 support staff. Of the 41 GALs, 7 are ranked GAL II and serve as lead attorneys. One lead attorney is assigned with three to five GALs with the rating of GAL I to each of the courtrooms that hear juvenile matters. The GALs are responsible for executing Murphy’s decisions. The hearing officer found that “Murphy is the ‘client’, and the juvenile is not.”

The divorce division represents children in contested divorce cases involving the custody of those children. The trial court appoints Murphy to serve as both guardian ad litem and attorney for the child.

As in the other divisions, Murphy delegates many of his duties to the GALs in the division. The division includes seven GALs. The GALs meet with themselves approximately four times weekly; they rarely ask Murphy questions regarding their cases.

B

The union petitioned the Board for certification as a collective bargaining representative. (See Ill. Rev. Stat. 1989, ch. 48, par. 1609(aXl).) The union sought certification of a bargaining unit composed of GALs, caseworkers, investigators, clerks, typists, administrative assistants, accountants, stenographers, and bookkeepers, excluding all managerial, supervisory, and confidential employees as defined by the Illinois Public Labor Relations Act (the Act) (Ill. Rev. Stat. 1989, ch. 48, par. 1601 et seq.).

Following an administrative hearing, a hearing officer found the above-stated facts. The parties further stipulated that GALs were professional employees within the meaning of the Act. (See Ill. Rev. Stat. 1989, ch. 48, par. 1603(m).) Among his conclusions of law, the hearing officer concluded that the GALs were not managerial employees within the meaning of section 3(j) of the Act. (Ill. Rev. Stat. 1989, ch. 48, par. 1603(j).) The hearing officer also concluded that the GALs with the rating of GAL II in the juvenile division were not supervisors within the meaning of the Act. (See Ill. Rev. Stat. 1989, ch. 48, par. 1603(r).) Consequently, the hearing officer recommended that the GALs not be excluded from the proposed bargaining unit.

The hearing officer also recommended the formation of two voting groups, one composed of professional employees and another composed of nonprofessional employees. The employees in the two groups would vote on whether they wished to be represented in one combined unit of professional and nonprofessional employees. The hearing officer further recommended that the GALs should form a separate unit.

On review, the Board modified the hearing officer’s recommended decision and upheld his direction of election. The Board agreed with the hearing officer that the GALs were not managerial employees within the meaning of the Act. However, the Board concluded that the GALs should be included with the professional employees in the unit.

The Board then conducted a representation election within the proposed unit’s two voting groups. The majority of employees voted in favor of the union, and also voted in favor of one combined unit of professional and nonprofessional employees. The Board thereafter certified the union as the exclusive bargaining agent for the unit. The chief judge appeals.

Opinion

I

Judicial review of a final order of the Board is taken directly to the appellate court and such review is in accordance with the Administrative Review Law. (Ill. Rev. Stat. 1989, ch. 48, par. 1611(e); ch. 110, par. 3 — 101 et seq.) The Administrative Review Law limits our review to the record before us; we may not hear new or additional evidence. The statute additionally mandates that the “findings and conclusions of the administrative agency on questions of fact shall be prima facie true and correct.” Ill. Rev. Stat. 1989, ch. 110, par. 3— 110.

Courts have construed these statutory provisions to mean that, on administrative review, it is not a court’s function to weigh evidence. Rather, the court’s function is to ascertain whether the findings and decision of the agency are against the manifest weight of the evidence. An administrative agency decision is against the manifest weight of the evidence only if the opposite conclusion is clearly evident. (Village of Wheeling v. Illinois State Labor Relations Board (1988), 170 Ill. App. 3d 934, 940, 524 N.E.2d 958, 962, aff'd sub nom. City of Freeport v. Illinois State Labor Relations Board (1990), 135 Ill. 2d 499, 554 N.E.2d 155.) Courts will accord deference to an interpretation of a statute by the agency charged with its administration. However, the agency’s interpretation is not binding and will be rejected when erroneous. (City of Freeport v. Illinois State Labor Relations Board (1988), 169 Ill. App. 3d 151, 154, 523 N.E.2d 214, 216, affd (1990), 135 Ill. 2d 499, 554 N.E.2d 155.) Also, Federal cases that construe the National Labor Relations Act (29 U.S.C. §151 et seq. (1988)) are persuasive authority for similar provisions in the State Act. American Federation of State, County & Municipal Employees v. Illinois State Labor Relations Board (1989), 190 Ill. App. 3d 259, 264, 546 N.E.2d 687, 690-91.

II

The chief judge seeks a partial reversal of the Board’s order. Murphy argues alternatively: (1) all of the GALs should be excluded from the bargaining unit because they are managerial employees; (2) the GALs with the rating of GAL II should be excluded from the bargaining unit because they are supervisory employees; and (3) the GALs should form a separate bargaining unit. We need address only the first argument.

A

The Act excludes managerial employees from collective bargaining. (Ill. Rev. Stat. 1989, ch. 48, par. 1603(m).) The Act defines a managerial employee as “an individual who is engaged predominantly in executive and management functions and is charged with the responsibility of directing the effectuation of such management policies and practices.” (Ill. Rev. Stat. 1989, ch. 48, par. 1603(j).) Construing this provision, we have held that managerial employees “are those involved in the direction of the governmental enterprise or a major unit thereof who possess authority to broadly affect its mission or fundamental methods.” Salaried Employees of North America v. Illinois Local Labor Relations Board (1990), 202 Ill. App. 3d 1013, 1020, 560 N.E.2d 926, 932.

Authorities agree that decision-making authority is a key requirement of a managerial employee. The United States Supreme Court described this requirement as follows:

“Managerial employees must exercise discretion within, or even independently of, established employer policy and must be aligned with management. *** [A]n employee may be excluded as managerial only if he represents management interests by taking or recommending discretionary actions that effectively control or implement employer policy.” National Labor Relations Board v. Yeshiva University (1980), 444 U.S. 672, 683, 63 L. Ed. 2d 115, 126, 100 S. Ct. 856, 862.

Focusing on professional employees, the Board has held as follows:

“[A] professional employee is a managerial employee only when he exercises something more than ‘the mere exercise of professional discretion and judgment’ and if he actually formulates and effectuates ‘management policies by expressing and making operative decisions of the Employer.’ [Citations.]” (Department of Central Management Services, 1 Pub. Employee Rep. (Ill.) par. 2014, at VIII-84, Nos. S-UC-6, S-UC-8 (ISLRB, July 17,1985).)

In other words, where the professional interests of the employee cannot be separated from those of the employer, the employee is deemed a managerial employee. Salaried Employees, 202 Ill. App. 3d at 1022, 560 N.E.2d at 932.

However, “an employee need not participate actively in the formulation or effectuation of management’s labor relations policies in order to be deemed ‘managerial.’ ” (Salaried Employees, 202 Ill. App. 3d at 1020-21, 560 N.E.2d at 932.) Also, managerial status is not limited to those at the very highest levels of the governmental entity. Rather, “the key inquiry is whether the duties and responsibilities of the employees in question are such that the employees should not be placed in a position requiring them to divide their loyalty between the employer and the collective bargaining unit.” Salaried Employees, 202 Ill. App. 3d at 1021, 560 N.E.2d at 932.

B

Applying these principles to the case at bar, we conclude that the GALs are managerial employees within the meaning of the Act. We previously recounted at length the hearing officer’s findings of fact regarding the responsibilities of the GALs. We need not repeat those findings here. Even a cursory review of those findings plainly shows that the GALs are involved in the direction of the Cook County public guardian’s office and possess authority to broadly affect its mission or fundamental methods. Salaried Employees, 202 Ill. App. 3d at 1020, 560 N.E.2d at 932.

Both the hearing officer and the Board ignored their own findings of fact and the controlling legal principles to reach their conclusions. The hearing officer conceded that the GALs exercise “a wide degree of discretionary authority” in handling the cases. However, the hearing officer nevertheless concluded as follows:

“[The GALs’] discretion is based on the exercise of their professional judgment as a lawyer [sic] which does not satisfy the requirement of being engaged in an executive and management function. *** Moreover, to the extent that the GALs do develop policy, they are expected to handle their cases in accordance with what Murphy himself would do in a given situation.”

The hearing officer’s conclusion was against the manifest weight of the evidence. The hearing officer found that the GALs represent Murphy. The hearing officer also found that the GALs received decision-making authority from Murphy because Murphy’s large case load prevented him from personally making those decisions in each case. These findings plainly show that a GAL actually formulates and effectuates management policies by expressing and making operative Murphy’s decisions. See Department of Central Management Services, 1 Pub. Employee Rep. (Ill.) par. 2014 at 84.

The Board attempted to distinguish this case from our decision in Salaried Employees in three respects. This attempt fails. First, the Board noted that in Salaried Employees, the city law department attorneys “were counsel to their employer, the City of Chicago.” The Board attempted to distinguish this case from Salaried Employees as follows:

“Here, in contrast, the GALs represent not their employer, the Chief Judge, or even the head of their office, the Public Guardian, Patrick Murphy, but the thousand of individual wards of the court whose interests the Public Guardian’s Office has been designated to protect. The GALs have a fiduciary duty to the wards and it is primarily on their behalf that the GALs exercise discretionary judgment in their capacity as attorneys.

This reasoning and conclusion was against the manifest weight of the evidence. As the Board conceded in a footnote in its decision, the hearing officer found that a case is assigned to Murphy as an individual rather than the public guardian’s office in general. Consequently, as the Board noted in the same footnote, “Murphy himself owes a fiduciary duty to the wards of the court and relies on the GALs to carry out this duty on his behalf.” Further, it is uncontested that the GALs exercise a large amount of discretionary authority in carrying out Murphy’s fiduciary duty. Since the GALs exercise discretionary authority that effectively controls or implements Murphy’s fiduciary duty to his wards, then the GALs are properly deemed to be managerial employees. See Yeshiva, 444 U.S. at 683, 63 L. Ed. 2d at 126, 100 S. Ct. at 862.

Second, the Board noted that in Salaried Employees, the city law department attorneys “possessed significant authority with respect to the city’s daily operations.” The Board attempted to distinguish this case from Salaried Employees by noting that the GALs do not perform any administrative duties in the office, or “establish or even recommend changes in Office operating policies and procedures in the course of their normal duties.” However, this is not a crucial factor in determining managerial status. Rather, the key inquiry is simply whether the duties and responsibilities of the GALs are such that the GALs should not be placed in a position requiring them to divide their loyalty between Murphy and the union. See Salaried Employees, 202 Ill. App. 3d at 1021, 560 N.E.2d at 932.

Third, the Board noted that in Salaried Employees, the city law department attorneys were involved in labor relations and personnel matters. The Board further noted that, in contrast, the GALs did not exercise any such responsibility. However, “an employee need not participate actively in the formulation or effectuation of management’s labor relations policies in order to be deemed ‘managerial.’ ” Salaried Employees, 202 Ill. App. 3d at 1020-21, 560 N.E.2d at 932.

In sum, the record shows that the professional interests of the GALs cannot be separated from those of Murphy. (See Salaried Employees, 202 Ill. App. 3d at 1022, 560 N.E.2d at 932.) Therefore, we hold that the GALs in the Cook County public guardian’s office are managerial employees within the meaning of the Illinois Public Labor Relations Act. Consequently, the GALs should be excluded from the bargaining unit. Based on this holding, we need not address whether some of the GALs should be excluded from the bargaining unit because they are supervisory employees, or whether the GALs should form a separate bargaining unit.

For the foregoing reasons, the order of the Illinois State Labor Relations Board is affirmed in part and reversed in part.

Affirmed in part and reversed in part.

JIGANTI, P.J., and McMORROW, J., concur.


source: Caselaw Access Project

author: JUSTICE LaPORTA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY SPIKA, Defendant-Appellant.
    First District (6th Division)
    No. 1—90—1818
    Opinion filed May 15, 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, Kathleen F. Howlett, and Sheila Macmanus, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LaPORTA

delivered the opinion of the court:

Gary Spika was convicted in a jury trial of two counts of aggravated criminal sexual assault, unlawful restraint and kidnapping for an assault that occurred October 21, 1988, and charged on indictment No. 88 — 20441. He was sentenced to six years on each charge of aggravated criminal sexual assault and the charge of kidnapping with the sentences to run concurrently. On the same day he pled guilty to count II aggravated criminal sexual assault on indictment No. 88 — 20440 for a separate assault on the same victim that occurred November 18, 1988. He was sentenced to six years in prison with the sentence to run consecutive to the six-year sentence resulting from indictment No. 88 — 20441.

Defendant appeals the conviction on indictment No. 88 — 20441 alleging: (1) the trial court committed reversible error in permitting the State, on direct examination, to elicit an unprecedented amount of detail concerning the background and life situation of the complainant to improperly bolster her testimony and play on the sympathies of the jury, in a case where complainant’s testimony may not have been true, and she had a motive to testify falsely; (2) the trial court erred in instructing the jury that “evidence has been received that defendant has been involved in offenses other than that charged,” because the evidence if believed showed only one other offense (alleged intimidation of the victim) rather than multiple “offenses,” and a reasonable juror could read the instruction as assuming that defendant committed the other offense or offenses, whereas whether the offense(s) occurred was a contested issue for the jury to determine.

Defendant Gary Spika, 32, was charged with three counts of aggravated criminal sexual assault, three counts of criminal sexual assault, one count of kidnapping and one count of unlawful restraint. At trial, the victim, R.C., testified that at about 8 a.m. as she arrived for work she was forcibly taken from her place of employment in Broadview by a man whom she identified as the defendant. She testified that he grabbed her just before she entered the building where she worked. He started pushing her toward her car and she pushed back, saying “What are you doing?” “Please. I got to go to work.” She testified that he told her: “You’re not going to work. You are not going anywhere. You’re coming with me.”

R.C. testified that defendant had his arm locked around her neck as he unlocked the driver’s side door of her car and pushed her into the front passenger seat. She testified that he started the car and pulled away. She pleaded with him to let her go, but he just told her he was going to drive out of State so she could never see her children again.

She testified that he drove her to a townhouse in La Grange Park where the two had lived together for two months and where the defendant still lived. She testified that on October 12, 1988, nine days before the assault, she had moved out of the townhouse. She testified that he dragged her across the street, in through the back door of the townhouse, up the stairs and locked her in the bedroom with him. She testified that he pulled her clothing off, forced her to engage in sexual activity with him and then let her go after she promised to return in the evening.

She testified that she drove straight to the police station and a police officer took her to the hospital. She testified that at the hospital she noticed a bite mark under her right breast which she said was caused by the defendant.

She testified that she was 33, divorced since 1982 and was the sole support for her three children ages 15, 14 and 12. She testified that after her divorce she worked as a waitress and moved to Sauk Village. She testified about her work history. She stated she had worked as a volunteer fire fighter, attending classes once a week; as an emergency medical technician for a year, which required three months’ training; and as a nursing home activity therapy worker for 11 months. She testified that at the time of the assault she was working as a lab technician in a Broadview company. She testified that she was 5 feet IVz inches and 110 or 113 pounds at the time of the assault and defendant was 6 feet 4 inches and weight 220 pounds.

During R.C.’s testimony, defense counsel objected twice, arguing that the State had a right to elicit background information on the victim to a point but that this extensive testimony was irrelevant. The trial judge stated that he would allow the prosecutor to continue but cautioned that “[i]f this goes much longer, if there is any objection then I will have to rule on it.”

R.C. testified that on November 18, several weeks after the assault, she stopped at the Brookfield Library to pick up her son and the defendant jumped out from around the corner of a building and started chasing her. She testified that she ran toward the building but the defendant caught her and dragged her to her car, prying the car keys out of her hand. She testified that he told her: “You’re not going anywhere. You’re coming with me” and then said, “Oh, we have to talk about what happened in court today.”

She testified that she had been in court that day with regard to the October 21 assault. She testified that he pushed her into the car, climbed in, locked the car and started to drive away. She testified that he told her: “We’re going to Wisconsin. You’re never coming back. You’re never going to see your kids now. I don’t care what happens now to me. You did it. You told the judge these threats that I made to you.” She testified that he told her he would shoot her, kill her, bury her body and throw her car in the lake.

On cross-examination, R.C. testified that she met the defendant in May of 1986 and started dating him a month later. She admitted that she had sexual relations with him on several occasions and signed an apartment lease with defendant for the townhouse, using the defendant’s last name as her own.

She testified that on the morning of the assault there were cars travelling on the street near her office and near the townhouse but she did not scream out for help. She testified that when she was pushed into her car she did not press on the horn because the horn was broken and she did not try to exit the passenger side because she felt she couldn’t get away.

She denied telling the police that they entered the townhouse through the back door and testified that they entered through the front door. She testified that he had no weapon, that she did not hit him or scream out because he would have knocked her out, and that she was afraid of defendant and feared for her life. She testified that the defendant had never bitten her before during sex.

She admitted that on November 13, I2V2 weeks after the assault, she and two of her sons went to breakfast with the defendant. She testified that the defendant gave her $10 for each of her kids because he owed her money. R.C. identified herself as the author of a note left in the defendant’s apartment October 12 which said that R.C. and her children were leaving.

On redirect examination, R.C. testified that she was afraid he would beat her up and that is why she didn’t try to climb out of the car, scream, attract the attention of others or struggle to get away. She testified that on November 13 she was picking her children up from religious education class and when the children saw the defendant they ran to the car, climbed in and she tried to drive away. She testified that the defendant waved her car down and begged her to stop and told her he was sorry and he would never bother her again. She testified that he said he was going to pay her back the money that he owed her and her children told her to let him in the car because he wouldn’t do anything with the three of them there. She testified that when they went to breakfast she did not eat anything.

On re-cross-examihation, R.C. testified that the reason she spoke to the defendant November 13 was because she thought if she let him talk and “say his prayers” he would not stalk her anymore. On redirect examination, R.C. testified that she let the defendant into her car, drove to breakfast and stayed at the restaurant with him because he had been bothering her since October 21. She said she tried to talk the defendant into leaving her alone.

Broadview police lieutenant Robert Dollins testified that he spoke with R.C. at about 1 p.m. October 21, 1988, after she came to the police station claiming she had been kidnapped and sexually assaulted. He testified that he took her to Loyola Hospital in May-wood and then took her to meet with an assistant State’s attorney. He testified that on the next day a warrant was issued for the arrest of defendant but he was not at home when police went to his La Grange Park home. On October 28, defendant was arrested, read his Miranda warnings and he signed a form stating that he understood his rights.

Under police questioning, the defendant told Dollins that he was sure he was working for an asphalt paving company on the date of the assault, October 21. Dollins testified that defendant told him he and the victim had consensual sex on either October 18 or 20. Dollins testified that after looking at a calendar, the defendant said he was not sure of the exact date, it could have been a week later. Dollins testified that he then interviewed the defendant’s boss at the asphalt company and discovered defendant had not worked October 19, 20 or 21.

On cross-examination Dollins testified that R.C. told him the defendant took her through the front door of the townhouse and not the back. He testified that R.C. told him the defendant ripped her clothes off, but he stated that he did not believe her clothes were ripped. He acknowledged that the defendant was very unsure about the date when he and R.C. had consensual sex.

On redirect examination, Dollins testified that the defendant was only unsure about the date he had consensual sex but he was sure he had worked at the asphalt company on the day of the assault on October 21.

James P. Duff, who owns an asphalt paving business, testified that he had known the defendant 21/2 years and that defendant had worked for him. He testified that on October 28, 1988, he told a Broadview police sergeant that his records showed the defendant did not work on October 21, 1988. He testified that defendant did work on October 20.

Dr. Beatrice D. Probst, who worked in the emergency department at Loyola University Hospital in Maywood, testified that she was on duty in the emergency room at 1:25 p.m. October 21, 1988, when R.C. came seeking medical care. She testified that she took down a history on R.C., which included a statement that R.C. had been abducted by her estranged boyfriend at approximately 8 or 9 a.m. She testified that R.C. told her she had been slapped about the head and trunk and forced to have both oral and vaginal intercourse with her assailant. She testified that she conducted a physical exam of R.C. and found four red lesions under her right breast.

On cross-examination she testified that there was no bruising associated with the red marks and there was no bruising or bleeding elsewhere on R.C.’s body, including her face.

The judge denied defendant’s motion for a directed verdict at the close of the State’s case. The defendant presented no witnesses, the parties made closing arguments and the jury was instructed, including the instruction:

“Evidence has been received that the defendant has been involved in offenses other than that charged in the indictment. This evidence has been received solely on the issue of defendant’s consciousness of guilt. This evidence may be considered by you only for the limited purpose for which it was received.” See Illinois Pattern Jury Instructions, Criminal, No. 3.14. (2d ed. 1981) (IPI).

The jury returned a verdict against the defendant on aggravated criminal sexual assault, criminal sexual assault, kidnapping and unlawful restraint. We note that the jury forms say the charges were one of aggravated criminal sexual assault and one of criminal sexual assault, but the mittimus identifies both of these convictions as aggravated criminal sexual assault. The defendant was sentenced to six years in prison to run concurrently on two charges of aggravated criminal sexual assault and one charge of kidnapping.

On the same day, defendant was sentenced to six years in prison after waiving a jury trial and pleading guilty to one count of aggravated criminal sexual assault from a second indictment stemming from an assault on R.C. November 18, 1988. The judge stated that the sentence would be served consecutive to the earlier sentence on the three-count jury conviction.

Initially we consider whether the trial court committed reversible error in permitting the State, on direct examination, to elicit an unprecedented amount of detail concerning the background and life situation of the complainant to improperly bolster her testimony and play on the sympathies of the jury, in a case where complainant’s testimony may not have been true and she had a motive to testify falsely.

Defendant notes that he is not contesting the sufficiency of the evidence against defendant as a matter of law. However, defendant argues that the State used the direct examination of R.C. to elicit an unprecedented amount of background information about her in order to appeal to the sympathies of the jury and therefore improperly bolster her weak testimony.

Defendant identifies several weaknesses he perceives in R.C.’s testimony, including: whether she was taken through the front or back door at the townhouse; whether defendant ripped her clothes off or pulled her clothes off; why she would ride in a car with defendant and go to breakfast with him three weeks after the assault; why she never screamed or tried to get away; her motivation to lie because she was angry that defendant had not paid the rent; the fact that they had prior fights and that he had begged her to return home; and the fact that they had sexual intercourse on prior occasions. Defendant contends that these facts establish that an unanswered question exists as to “whether this was a true case of aggravated criminal sexual assault or not.”

Defendant argues that to offset these trouble spots in R.C.’s testimony, the State elicited information about R.C.’s previous work experience, her work as a volunteer fire fighter and the fact that she was the sole support for her three sons.

Defendant argues that in the same way it is improper to elicit testimony of a defendant’s “bad character” (People v. Liapis (1972), 3 Ill. App. 3d 864, 868, 279 N.E.2d 368), it is equally improper to elicit evidence of a witness’s “good character.”

Defendant contends that in the absence of an attack upon the credibility of a witness, no evidence supporting her credibility should be allowed. (E. Cleary, McCormick on Evidence §115 (3d ed. 1984).) And if a witness’ credibility is at issue, specific instances of conduct are inadmissible to support the witness’ reputation. M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §608.1, at 366 (5th ed. 1990).

Defendant argues that the biographical testimony from R.C. also was inadmissible because it was not relevant. Evidence is only relevant, and therefore admissible (People ex rel. Noren v. Dempsey (1957), 10 Ill. 2d 288, 293, 139 N.E.2d 780), if it has a tendency to make the existence of any fact that is of consequence to the determination of the action more probable than it would be without the evidence. People v. Monroe (1977), 66 Ill. 2d 317, 321-22, 362 N.E.2d 295; Marut v. Costello (1966), 34 Ill. 2d 125, 128, 214 N.E.2d 768.

Defendant argues that the law prohibits evidence which has the effect of appealing to the jury’s sympathies or biases. (People v. Bernette (1964), 30 Ill. 2d 359, 371, 197 N.E.2d 436.) Defendant contends that such information elicited during direct examination and repeated at closing arguments influenced the jury with biased and prejudicial testimony by playing on the sympathies of the jury. People v. Jackymiak (1943), 381 Ill. 528, 536-37, 46 N.E.2d 50.

The State argues that evidence elicited through R.C.’s testimony was relevant because R.C.’s work history impressed upon the jury that R.C. had been employed consistently and her employment must be important because she is the sole support of her children. The State contends that this evidence tended to dispel the defendant’s contention that R.C. could have left her place of work willingly on a workday.

The State argues that testimony concerning R.C.’s children was relevant to explain why she would have gone to breakfast with the defendant on November 13.

The State contends that it is not uncommon for an attorney to ask background questions of witnesses to set them at ease. The State contends that even if it was error to elicit the information the error was harmless because the evidence against defendant was overwhelming.

Finally, the State contends that even if the prosecutor’s comment in her closing argument was improper (the mention of the victim’s work as a volunteer fire fighter), this alleged misconduct of counsel does not afford a basis for reversal unless it appears that the act complained of served to influence the jury in a manner that resulted in substantial prejudice to the accused. People v. Stahl (1962), 26 Ill. 2d 403, 405, 186 N.E.2d 349.

At trial the State contended the testimony should be admitted to provide general “background information for the individual. To show what type of an individual [she was].”

In reply, defendant argues that the State produces no authority to support its position, raised for the first time on appeal, that attorneys commonly ask such background questions, R.C.’s employment was important because she was the sole support for her children and the information about her children was relevant to establish why she was not so fearful in allowing the defendant to ride with her to breakfast November 13, 1988.

We disagree with defendant’s contention that the background information elicited by the State was “unprecedented” and prejudicial. The jury is entitled to have information that will aid it in understanding the case. Even if the State did not articulate its trial strategy and reasoning to the defendant, the State was entitled to elicit information that would help the jury understand who was in the car and in the restaurant with R.C. when she was confronted by the defendant and why R.C. might not have willingly left her place of employment the morning of the assault.

The prosecutor did not dwell on the background information of R.C. save the mention in closing arguments about her past work as a volunteer fire fighter. We disagree with defendant’s contention that R.C.’s credibility was fatally damaged by her failure to resist or try to escape. R.C. and the defendant knew each other, and she testified that she had mistakenly “trusted him.”

Even if the testimony of her background was admitted in error, it did not rise to the level of error prejudicial to defendant’s case. The information about R.C. was innocuous and did not affect the outcome of the trial. We find that the trial court did not err in the latitude it provided the prosecutor on direct examination of R.C.

Finally we consider defendant’s contention that the trial court erred in instructing the jury that “evidence has been received that defendant has been involved in offenses other than that charged,” because the evidence if believed showed only one other offense (alleged intimidation of the victim) rather than multiple “offenses.” He contends further that a reasonable juror could read the instruction as assuming that defendant committed the other offense or offenses, whereas whether the offense(s) occurred was a contested issue for the jury to determine.

Among the instructions given to the jury was:

“Evidence has been received that the defendant has been involved in offenses other than that charged in the indictment. This evidence has been received solely on the issue of defendant’s consciousness of guilt. This evidence may be considered by you only for the limited purpose for which it was received.”

Defendant contends that this instruction was given in error and prejudiced the jury by: (1) informing jurors there was more than one offense involved, and (2) by making the factual assumption that "offenses” had occurred. Defendant contends that at trial the jury heard evidence of only one other alleged offense and argues that “it is obviously improper for a prosecutor to inform the jury of alleged other crimes by the defendant that are not introduced into evidence.” People v. Whitlow (1982), 89 Ill. 2d 322, 340, 433 N.E.2d 629 (“It can hardly be disputed that the State inferred defendant *** committed theft. This allegation is totally unsupported by any evidence from which the inference could be derived”).

Defendant contends that if R.C.’s testimony was believed by the jury, it would still constitute only one other offense because her testimony regarding November 18 involved only discussion of his concerns over her testimony in court that day about prior threats he had made to her. Defendant contends that for that reason the use of the word “offenses” was prejudicial error.

Defendant argues that the use of the plural term “offenses” by the judge himself would tend to carry great weight with the jury. People v. Marino (1953), 414 Ill. 445, 450-51, 111 N.E.2d 534.

Defendant cites People v. McCauley (1972), 2 Ill. App. 3d 734, 736, 277 N.E.2d 541, where the defendant was arrested for traffic violations. The arresting officer at trial testified that defendant, while being transported to the station, swore at him and kicked out the plastic shield between the front and back seats. The officer testified that he then stopped the car and opened the back door to put handcuffs on the defendant, but the defendant struck him in the face. Contradictory testimony from defendant and a friend of his was that the officer was the aggressor. McCauley, 2 Ill. App. 3d at 735-36.

In McCauley, the jury was instructed that a police officer is justified in using reasonably necessary force to prevent the escape of an arrested person or defend himself while preventing an escape. The jury was also instructed that a person is not authorized to use force to resist an arrest under any circumstances.

On appeal the McCauley court found reversible error in the instructions, noting that the defendant was not charged with resisting arrest or attempted escape. The appellate court stated: “The law is clear that the jury can be instructed only concerning the crime charged [citation]. The natural result of instructions based upon other crimes is prejudice to the defendant [citations]. It is reversible error to inject into the case, by way of instruction, issues which are not properly before the jury.” McCauley, 2 Ill. App. 3d at 736.

Defendant argues that the test for determining whether the giving of an instruction such as that challenged here was error was set out in Sandstrom v. Montana (1979), 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450, where the court stated that a reviewing court should look to “the way in which a reasonable juror could have interpreted the instruction.” (Sandstrom, 442 U.S. at 514, 61 L. Ed. 2d at 45, 99 S. Ct. at 2454.) Defendant contends that a reasonable juror would have concluded that the instruction advised him that defendant had, in fact, committed other crimes.

Defendant argues that the instruction was error because it also should have informed the jury that it had to decide whether R.C.’s testimony was true with regard to defendant committing other crimes. Defendant cites in support People v. Lucus (1968), 41 Ill. 2d 370, 376, 243 N.E.2d 228 (instructions must not assume the existence of any material facts in issue), People v. O’Connor (1920), 295 Ill. 198, 202, 129 N.E. 157 (when giving instructions, it is error to assume the truth of controverted facts), and People v. Gathings (1981), 99 Ill. App. 3d 1135, 425 N.E.2d 1313 (court has a duty to properly instruct when clarification is requested) and contends the alleged threat was a contested issue at trial.

We note, however, that Gathings involved an IPI instruction that was “amended” before being given to the jury. (Gathings, 99 Ill. App. 3d at 1136.) The court stated that unless it is determined that there is no IPI instruction which accurately states the law, the appropriate IPI instruction should be given. Gathings, 99 Ill. App. 3d at 1138.

Defendant concedes that the instruction given was from the widely used Illinois Pattern Jury Instructions. Defendant argues, however, that IPI instructions should be modified to fit the facts of a case.

Defendant contends that evidence of the magnitude of the trial court’s error can be quantified by considering an out-of-court comment by a juror after trial. At a post-trial motion hearing, defense counsel informed the trial judge that a juror told him in the hallway after trial (quoting defense counsel before the court): “that she knew that he was guilty of another crime. He did not take the stand. And that when the State brought out the November 18th incident, they knew he had committed another crime.”

The State contends that the jury instruction was proper because (1) it included a directive to the jury to consider this evidence only for the limited purpose of determining defendant’s consciousness of guilt, (2) more than one offense was alleged, and (3) the latter alleged offenses were directed against the same complainant.

The State contends that any attempted intimidation of a witness is properly attributable to a consciousness of guilt and is therefore admissible. (People v. Gambony (1948), 402 Ill. 74, 80, 83 N.E.2d 321.) If a defendant allegedly commits another crime against the same person, evidence of that crime should be admissible to show the relationship between the two parties. People v. Richardson (1959), 17 Ill. 2d 253, 259, 161 N.E.2d 268.

The State contends that the McCauley case on which defendant relies is distinguishable because the instruction given in McCauley included references to resisting arrest and preventing escape although the testimony in that case established that the defendant was already under arrest and no evidence suggested he tried to flee. The State contends that here, evidence of the November 18 threat and kidnapping was admitted for the limited purpose of determining the defendant’s consciousness of guilt of the October 21 assault.

The State contends that the trial judge was correct in choosing the word “offenses” instead of “offense” because R.C.’s testimony regarding the November 18 incident revealed two other crimes, intimidation of a witness and kidnapping. The State rejects defendant’s contention that the jury should have been instructed to make a specific finding of guilt or innocence on the other “offenses,” noting that they were only admitted into evidence as evidence of consciousness of guilt.

Finally, the State rejects defendant’s contention that a comment made by a juror in the hallway should be given any weight by the reviewing court. The State argues that an offhand comment as recalled by defense counsel is not necessarily indicative of how a jury reached its result. We conclude defense counsel’s representation with respect to the comment was hearsay and clearly inadmissible for purposes of review.

Defendant distinguishes Richardson relied on by the State by noting that the limiting instruction in Richardson dealt with the “relationship of the parties” and not with the “consciousness of guilt.” Defendant also denies that R.C.’s testimony evidenced other “offenses” by defendant on November 18. Defendant contends that R.C. testified that she was pushed into her car and defendant discussed previous threats he made to her. Defendant argues that this does not prove she was kidnapped so as to merit an instruction with the word “offenses” instead of “offense.” Defendant contends that even if the jury believed defendant kidnapped R.C. on November 18, it would not be evidence that would establish “consciousness of guilt” because under Gambony, consciousness of guilt is established through acts designed to suppress evidence or prevent someone from testifying. (Gambony, 402 Ill. at 80.) Defendant argues that “by itself, an alleged act of kidnapping does not fall within this category of conduct.”

The record establishes that R.C.’s testimony regarding the November 18 incident was objected to, in part, by defense counsel although the basis of the objection was not stated. The trial judge overruled defense objections and R.C. was permitted to testify about the incident, explaining that she was abducted by defendant as she went to pick her children up from the library. The State and defendant concede that there was properly admitted evidence of a threat made by defendant (“You told the judge these threats that I made to you”). The State contends that the testimony also evidenced kidnapping on November 18 in that R.C. testified the defendant forced her into her own car and then “He pushed himself in the driver’s seat and locked the door and started the car and then he said, ‘We’re going to Wisconsin.’ ”

We believe the jury had enough evidence before it to merit an instruction using the word “offenses.” Even if defendant’s action did not constitute kidnapping, clearly his conduct falls within the definition of unlawful restraint.

Likewise, we disagree with defendant’s contention that the trial judge was required to modify the IPI instruction to direct the jury that it must determine whether defendant committed the other offenses. The State properly argues that the evidence was admitted only for the purpose of establishing defendant's consciousness of guilt. We find the trial court properly instructed the jury.

For the foregoing reasons, we affirm defendant’s conviction and sentencing.

Judgment affirmed.

McNAMARA and RAKOWSKI, JJ., concur.


author: JUSTICE CERDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANGEL HOOD, Defendant-Appellant.
    First District (3rd Division)
    No. 1—89—1265
    Opinion filed May 6, 1992.

      Barbara Kamm, of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and David Stabrawa, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CERDA

delivered the opinion of the court:

Codefendants Angel Hood and Anthony Ortiz were tried simultaneously in severed jury trials by separate juries that were unable to reach a verdict in either case. Defendant Angel Hood was then tried separately in a jury trial that ended in a mistrial because a police officer stated that defendant had taken a polygraph examination. In a third trial, defendant was again tried separately by a jury and was found guilty of first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1). He was sentenced to 62V2 years’ imprisonment. On appeal, defendant asserts that (1) he was not found guilty beyond a reasonable doubt because the testimony of a crucial State eyewitness was incredible; (2) he was denied due process and his right to a fair trial by the State’s improper impeachment of the defense’s eyewitness; (3) he was denied due process and his right to a fair trial because a State rebuttal witness, a former assistant State’s Attorney, volunteered prejudicial testimony about the defense’s eyewitness; (4) he was denied his right to a fair trial by the State’s failure to timely disclose the identity of a rebuttal witness or the substance of statements about which he testified; (5) his right to a fair and impartial jury was violated because the trial court erred in not excusing a prospective juror for cause; and (6) he was denied due process and his right to a fair trial by the prosecutor’s improper closing argument comments. We reverse.

Miguel Rodriguez was beaten and stabbed to death on February 1, 1987. At trial, three witnesses testified that they saw two men beat and stab the victim. Earl Ward and Chiquita Khalaf observed the incident from their apartments located above the sidewalk where the vietim was killed. Walter Pappas observed the incident while he was standing nearby.

Earl Ward testified that his third-floor apartment faced Racine Avenue in Chicago. After going to bed in the early morning hours of February 1, 1987, Ward was lying awake when he heard someone scream for help. He got up, looked out his window, and saw three people on Racine Avenue. One of the people hit the victim twice in the face. When he fell down, the second person kicked him.

Ward stated that he is nearsighted and wears eyeglasses. He was not wearing his eyeglasses at the time he observed the incident. Even though his view of the fight was blurry and he could not make out features or faces, Ward testified, he was able to see colors and figures and to determine the sex of people. Ward stated that the person who hit the victim was wearing a light gray hood and dark clothing and the person who kicked the victim was wearing dark clothes and a stocking cap. Ward further testified that the two men ran across the street toward Leland Avenue, not through the gangway. Ward did not see anyone else on the street at that time.

Because Ward thought it was another drunken brawl, which was common, he went back to bed. Later, however, when the victim failed to move, Ward got dressed and went downstairs. The police were already at the scene.

Walter Pappas testified that he was friends with the victim and knew both defendant and Ortiz. In 1986, Pappas was placed on three years’ probation for burglary and robbery. Since being placed on probation, Pappas had been arrested at least 12 times. Pappas said that he had no pending petitions for violation of probation and was not told by any assistant State’s Attorney that the charges would be dropped if he testified. All the cases were dismissed for lack of evidence, Pappas stated.

On January 31, 1987, Pappas testified, he was drinking in an apartment in the Leland Hotel located at Wilson and Racine Avenues with various people, including the victim and defendant. Around 3 a.m. on February 1, 1987, Pappas stated, he was at the comer of Leland and Racine Avenues with Dean Emery. Pappas contended that he was not drunk at the time, but did have a “buzz.” He did not know how much the victim had to drink because they were not together the entire time before the stabbing. When he heard someone saying “stop, stop,” Pappas looked around the corner and saw two men beating and kicking the victim. At first, Pappas, who was six to eight car lengths away from the three men, did not recognize them.

When Pappas yelled “hey, what do y’all think y’all doing?” defendant turned around and looked at him. Pappas recognized him because he had known defendant for three to four years. Pappas testified that defendant was wearing dark clothes and a blue or gray hooded jacket. The victim was saying “stop, stop” and did not have anything in his hands. It appeared to Pappas as if defendant had a knife in his hand and that his arm was moving in a downward motion. Pappas recognized the second attacker as Anthony Ortiz, who was wearing dark clothes. When the attackers ran, Pappas testified, he did not see where they ran because he was running home to his nearby apartment.

On cross-examination, Pappas admitted that he had previously testified that the attackers went through a gangway to a street west of Racine Avenue. Even though he did not see where the attackers ran, Pappas explained, he assumed they ran west because they did not come toward him.

When Pappas arrived at home, he did not call the police because the telephone was in his mother’s bedroom and he did not want to disturb her. When the police arrived 15 or 20 minutes later, Pappas returned to the scene. He told the police he knew the victim, but did not see what happened.

The next day, Pappas slept until noon and then went to the Leland Hotel, where he drank with friends the entire afternoon. Later that day, the police approached him and asked if he would go to the police station to answer questions. Pappas stated that he was very drunk at the time.

At the police station, Pappas was placed in an interrogation room and handcuffed to the wall. When the police officers repeatedly asked if he knew about the killing, Pappas replied that he did not. Finally, the police let him sleep and get sober. While at the police station, Pappas was allowed to use the restroom by himself. He was never told he was a suspect nor did the officers threaten him regarding his probation. When he became sober, Pappas told the police he saw defendant and Ortiz beat and stab the victim in the back.

Pappas testified that he did not call the police because he was scared of defendant and his friends. He also stated that he told Dean Emery’s sister, Karen, that he knew nothing about the stabbing because her sister had dated defendant.

Brian Via testified that he was acquainted with defendant. About 10 p.m. on January 31, 1987, Ortiz and Via went to defendant’s apartment. The three men then drove around until Ortiz’s car got a flat tire. While they were driving, Via said he noticed defendant opening and closing a black and silver knife with “Kung fu” written on it. When Ortiz asked defendant for the knife, defendant dropped it on the front seat. Via identified People’s exhibit 11 as looking like the knife he saw in the car. When they abandoned the car, Via testified, Ortiz took the knife with him.

Via admitted that he had earlier told the police that Ortiz, not defendant, had had the knife. Furthermore, Via stated, he had never before mentioned that defendant had been flicking the knife because the police never asked. He had told the police that Ortiz went back to the car and took the knife from the back seat. He also testified that, at the first trial, he did not say anything about defendant playing with the knife or the knife having “Kung fu” on it. At the second trial, however, he testified that defendant was flicking a knife that had “Kung fu” written on it.

According to Via, defendant was wearing black baggy pants and a waist-length black jacket over an inner gray jacket with a gray hood. Ortiz was wearing a long black trench coat, black baggy pants, and a light-colored shirt.

Shortly after the three men abandoned the car, Via went home alone, arriving around 1:45 a.m. Defendant and Ortiz said that they were going to the Wooden Nickel bar, which was located within a block of the stabbing. At 5:30 or 6 a.m., the police came to Via’s home. They asked if he would be willing to go to the police station, if he knew defendant and Ortiz, and that they were investigating a homicide, but did not say who was killed. Via said he already knew who had been killed. He then went to the police station where he was questioned about the previous night.

Officer Carl Kurth testified that he and his partner were the first police officers to arrive at the scene. The victim’s clothes were soaked with blood. After speaking with Earl Ward, they told the dispatcher they were looking for two white Latino men, who were wearing dark pants and dark jackets, possibly three-quarter length with a hood.

While waiting for a paddy wagon to arrive, Kurth testified, defendant and Ortiz, who both had black hair, walked from the south. Both men were wearing dark clothing and dark trench coats. Defendant had a light blue hood underneath his coat. Kurth did not notice anything unusual about their appearance. Both men identified themselves to the police. Defendant said that he thought the victim was a cousin of a friend. Defendant then went with a police officer to contact his friend and returned with the victim’s father. Officer Kurth stated that Pappas did not identify the victim.

Officer Paul Carroll searched defendant’s home on February 2, 1987, pursuant to a consent to search form signed by Ortiz, who had been staying at defendant’s apartment. Officer Carroll recovered a knife (People’s exhibit 11) from inside a woman’s shoe in a bedroom closet. Pamela Fish, a Chicago police criminalist, testified that she tested the knife and found traces of blood on the blade. She was unable, however, to determine whether the blood, which was not visible with a microscope, was human or animal.

Deputy Medical Examiner Dr. Nancy Jones testified that the victim had twice the legal limit of alcohol in his blood at the time of his death. In that condition, Dr. Jones stated, the victim would have had difficulty defending himself. There were a number of bruises, abrasions, and small lacerations on the victim’s face and arm, a broken arm, and eight stab wounds on his neck, shoulder, back, thigh, and arm. The victim had bled profusely. Dr. Jones testified that the knife recovered from defendant’s apartment could have caused the broken arm and stab wounds. In Dr. Jones’ opinion, the cause of death was the multiple stab wounds to the victim’s back.

Chiquita Khalaf, a day-care center teacher’s aide, testified that she lived in the same apartment building as Ward. Her apartment also faces Racine Avenue. About 3 a.m. on February 1, 1987, Khalaf was awakened by someone yelling for help. She looked out her window and saw two men hitting the victim. Khalaf stated that one attacker had brown hair and the other had blond hair. She testified that neither defendant nor Ortiz was one of the attackers.

After Khalaf heard someone to her left yell “hey,” she ducked as the attackers looked in her direction. Although she briefly saw the attackers’ faces, Khalaf stated, she could not identify them, except that they were white men. She then ran to her daughter’s bedroom and back to the dining room, where she again looked out and saw one man running across the street, down Racine Avenue to Leland Avenue and then east on Leland Avenue, and the other running straight down Racine Avenue. Khalaf testified that neither man wore a hat or a hood.

On cross-examination, Khalaf stated that she did not know what the attackers wore and that they did not have beards or mustaches. She admitted that in a prior trial, she had testified that she did not see their faces. Khalaf denied telling an assistant State’s Attorney that she saw nothing, that she was afraid, and that she knew defendant’s family.

Khalaf stated that she was not acquainted with either defendant or Ortiz. When she was subpoenaed to testify at the first trial in December 1987, Khalaf called the assistant State’s Attorney, who asked her if she knew defendant or his family. Khalaf told the assistant State’s Attorney that she did not know them. Khalaf was subpoenaed by both defendant and the State, but the assistant State’s Attorney told her not to come to court.

Khalaf also stated that she had told the police that she saw the beating. Although she did not say anything at first because she did not want to get involved, Khalaf testified, she later told the police that she saw the beating and one of the attackers had blond hair.

In the State’s rebuttal case, former Assistant State’s Attorney James Kogut testified that he had prosecuted defendant in December 1987. He stated that Khalaf telephoned him on December 3, 1987, and told him that she had not seen the incident, was afraid for herself and her family, knew defendant’s family well, and had gotten word of threats against her family. Because of her fears, Kogut stated, he told her she would not have to testify. During that telephone conversation, Kogut testified, Assistant State’s Attorney Peter Troy was listening to the conversation on another phone.

The next day, Kogut spoke with Khalaf in the jury room in the presence of Troy. At that time, Kogut asked Khalaf if she had told him that she knew defendant’s family and that she did not want to testify because she was afraid of the people on the street and defendant’s family. Khalaf denied telling Kogut those things. She stated that she told Kogut that she knew Angel, but not Angel Hood. Kogut testified that Khalaf again stated that she did not see the incident.

The prosecutor then asked Kogut if Khalaf ever told him she saw someone with blond hair. Kogut replied that Khalaf had admitted that “she told the police that Angel Hood was the person who was participating in the murder.” The defense counsel objected and a sidebar was held during which defense counsel argued that no police reports indicated Khalaf told police that defendant was involved, that this testimony was highly prejudicial, and no foundation was laid for Khalaf’s impeachment. The prosecutor withdrew the question and the jury was admonished by the court to disregard the testimony.

Marc Kaplan, executive director of the Uptown People’s Law Center, testified that he knew Pappas and his family for 15 years. The Law Center had previously represented Mrs. Pappas on a disability claim. Based on discussions with people in the community and members of the Pappas family, Kaplan stated, Pappas’ reputation was that he was not an honest person. Pappas had a severe problem with drinking, drugs, and inhaling tolly, a varnish remover. His reputation was that he spent most of his time intoxicated or trying to get money to get high. Kaplan stated that based on Pappas’ reputation in the community, he would not believe him under oath.

On cross-examination, Kaplan admitted that he knew members of the defense team and that they sometimes used his facilities. He was not, however, affiliated with any of defendant’s attorneys.

Following closing arguments and jury instructions, the jury found defendant guilty of first degree murder. At the sentencing hearing, defendant was sentenced to 621/2 years’ imprisonment because the offense was brutal and heinous. The trial court also imposed a consecutive sentence of 27 days for violation of probation.

On appeal, defendant asserts that he was not proven guilty beyond a reasonable doubt because his conviction rested primarily on Pappas’ testimony identifying him as one of the killers. Defendant contends that Pappas’ testimony was incredible, unreliable, and contradicted because he had a reputation for lying, was highly intoxicated at the time of the incident, did not report the incident to the police, only implicated defendant after he was in the police station for questioning, and had a strong motive to falsify his testimony. The other State evidence was circumstantial and conflicted with the conclusion that defendant was one of the attackers, defendant claims. Furthermore, defendant indicates, he presented eyewitness testimony that he was not one of the attackers.

When presented with a challenge to the sufficiency of the evidence, it is the reviewing court’s function to carefully examine the evidence, giving due consideration to the fact that the court and the jury saw and heard the witnesses. (People v. Young (1989), 128 Ill. 2d 1, 48.) A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 261.) Viewing the evidence in the light most favorable to the prosecution, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, the conviction will not be overturned. Collins, 106 Ill. 2d at 261.

Credibility of the witnesses and the weight given their testimony are exclusively within the province of the jury. (People v. Mullen (1990), 141 Ill. 2d 394, 403.) Any conflicts in the testimony are to be resolved by the jury. (Collins, 106 Ill. 2d at 261-62.) When resolution of guilt turns on the credibility of the witnesses, as it does in this case, the jury is to determine that credibility since it has a superior opportunity to observe their manner and demeanor. People v. Graham (1970), 127 Ill. App. 2d 272, 277.

There was sufficient evidence to affirm the conviction. The outcome of the trial depended on the credibility of the witnesses. The jury had an opportunity to view the witnesses and determine their credibility and the weight to be given to that testimony. The evidence was not so improbable or unsatisfactory that it created a reasonable doubt as to defendant’s guilt.

Next, defendant asserts that the State’s impeachment by omission of Chiquita Khalaf was improper because it was based on false insinuations that the State could not substantiate. The challenged remarks occurred during the State’s cross-examination of Khalaf, when the prosecutor elicited testimony through questions that suggested that Khalaf did not tell police that she observed the incident or that one of the offenders had blond hair.

Khalaf testified that she told the police that she saw the beating. Although she did not initially say anything to the police because she did not want to get involved, Khalaf stated, she later told them that she saw the beating and one of the attackers had blond hair.

The State attempted to impeach Khalaf by using the police report. On cross-examination, the State asked if the police report stated that Khalaf had described one of the offenders as having blond hair. Defendant correctly contends that use of the police report to impeach Khalaf was improper. A witness cannot be impeached by a statement that is not in her own words or substantially verbatim. (People v. Matthews (1972), 7 Ill. App. 3d 1059, 1063.) Therefore, the prosecution must show that the police report was a substantially verbatim account of a witness’ testimony. (Matthews, 7 Ill. App. 3d at 1063.) There was no such showing in this case.

Defendant then asserts that it is improper for the prosecutor to ask a witness questions for purposes of impeachment unless the prosecutor is prepared to offer proof of the impeaching information. (People v. Olinger (1986), 112 Ill. 2d 324, 341.) Defendant argues that there could be no perfection of the impeachment because two police officers testified in the first trial that Khalaf had told them that one of the offenders had blond hair.

Defendant cites People v. O’Banner (1991), 215 Ill. App. 3d 778, where the State questioned the defendant’s sister about a possible extramarital affair by the defendant. After the witness denied any knowledge of such an affair, the State did not introduce any evidence on rebuttal to support its inferences. (O’Banner, 215 Ill. App. 3d at 794.) During closing argument, however, the State referred to the testimony and argued that the witness had lied to protect the defendant. The court stated that the argument was an improper attempt to challenge the witness’ credibility. O’Banner, 215 Ill. App. 3d at 794.

In his reply brief, defendant relies on People v. Robinson (1989), 189 Ill. App. 3d 323, 336, where the court ruled that it was reversible error for the prosecutor to insinuate, without any proof, that the witness told the police that during the attack she recognized the assailant’s voice as the defendant’s. At trial, the witness testified that she did not recognize the assailant’s voice. (Robinson, 189 Ill. App. 3d at 336-37.) The prosecutor had no evidence that the witness ever made a statement inconsistent with her trial testimony. (Robinson, 189 Ill. App. 3d at 338.) Therefore, the court stated, the prosecutor’s tactics, failure, and inability to perfect impeachment of the favorable defense testimony, and closing argument to the jury converting the improper insinuations and innuendos to proof were intolerable. Robinson, 189 Ill. App. 3d at 339.

The State responds that the trial court did not abuse its discretion because the impeachment was perfected when Khalaf testified that she did not initially tell the police anything because she did not want to get involved. The State then asserts that even if the impeachment was improper, it was either harmless error or cured by the trial court’s instruction at the end of the trial.

The State relies on People v. Rader (1988), 178 Ill. App. 3d 453, for the proposition that there is no error for failure to perfect an impeachment if the trial court instructs the jury that the witness’ prior inconsistent statement cannot be given substantive weight, but must only be used to assess the witness’ credibility. In Rader, the court held that prior inconsistent statements that bear directly on the defendant’s guilt are admissible as long as the jury is instructed at the time of impeachment and at the close of the trial that the statement cannot be given substantive weight. (178 Ill. App. 3d at 463.) The trial court in Rader twice instructed the jury at the time of impeachment and again at the close of all the evidence. 178 Ill. App. 3d at 463-64.

Error occurs when the State, on cross-examination, asks a defense witness questions, presuming facts not in evidence, as a precursor to impeachment of that witness, in the absence of rebuttal evidence to substantiate the inquiry. (O’Banner, 215 Ill. App. 3d at 794.) The danger inherent in such questioning is that the jury -will ignore the denial, presume the accuracy of the question’s insinuation or innuendo, and substitute the presumption for proof. O’Banner, 215 Ill. App. 3d at 794.

The State failed to complete its impeachment of Khalaf regarding her not telling the police that she observed the incident or that one of the offenders had blond hair. The omission of those statements in the police report could not be used to impeach Khalaf because there was no showing that the report was a substantially verbatim account of Khalaf’s testimony.

The only other evidence used to impeach Khalaf was former Assistant State’s Attorney Kogut’s testimony. Kogut never answered the question about one of the attackers having blond hair and he did not testify that Khalaf told him that she had told the police that she did not see the incident. Kogut testified that Khalaf told him that she did not see the incident and did not want to testify at trial.

The State’s failure to follow through with the impeachment was prejudicial. Khalaf’s testimony was crucial eyewitness testimony and the unfounded insinuations were substantial. Moreover, the evidence against defendant was not overwhelming. The trial court’s instruction was not sufficient.

Next, defendant argues that he was denied a fair trial because the State’s rebuttal witness, James Kogut, the former assistant State’s Attorney who prosecuted defendant in the first trial, deliberately volunteered testimony that Khalaf, the defense eyewitness, stated that she told the police defendant participated in the murder. Defendant contends that Kogut’s unresponsive testimony, which was improper and deliberately made, was used in the State’s closing argument to argue that Khalaf was testifying on defendant’s behalf out of fear even though she had seen him commit the murder. Defendant indicates that the police reports do not state that Khalaf told them defendant was one of the attackers. Because this rebuttal testimony was very damaging to Khalaf’s credibility, defendant concludes, the prosecutor’s misconduct in presenting and relying on this evidence was prejudicial, denying him a fair trial.

Defendant asserts that the State’s questioning of Kogut about whether Khalaf told him that one of the attackers had blond hair was improper because no foundation was laid during the State’s cross-examination of Khalaf. During that cross-examination, Khalaf denied telling the assistant State’s Attorney that she saw nothing, that she was afraid, and that she knew defendant’s family.

In order to impeach a witness with a prior inconsistent statement, the witness’ attention must be directed to the time, place, circumstances, and the substance of the prior inconsistent statement in order to give the witness an opportunity to explain. (People v. Cobb (1983), 97 Ill. 2d 465, 479.) Since no questioning regarding blond hair occurred, no foundation was laid to impeach Khalaf on any alleged statement to Kogut about the color of the attackers’ hair. Thus, the State’s question to Kogut was improper.

In response to the improper question, Kogut gratuitously offered that Khalaf admitted to him that she had implicated defendant to the police. Although the trial court struck the testimony and admonished the jury not to consider it, defendant claims that its prejudicial impact could not be erased from the jurors’ minds. Furthermore, defendant contends, the manner in which this testimony was presented demonstrates that it was deliberate.

While a trial court’s prompt action in sustaining an objection and instructing the jury to disregard the improper testimony may cure potential prejudice (People v. Brooks (1988), 172 Ill. App. 3d 417, 422), reversible error can occur despite the sustaining of the objection. (People v. Fletcher (1987), 156 Ill. App. 3d 405, 412; People v. Brown (1983), 113 Ill. App. 3d 625, 629.) It is the duty of the reviewing court to consider the trial record as a whole in determining whether a new trial is necessary because the guilty finding was the result of the error. Brooks, 172 Ill. App. 3d at 422.

Although the trial court promptly sustained the defense’s objection and admonished the jury not to consider Kogut’s statement, Kogut’s gratuitous testimony was prejudicial. The State’s responsibility is not alleviated because Kogut’s answer was unresponsive. Kogut is a former assistant State’s Attorney who had been the prosecutor in defendant’s first two trials. The improper question and unresponsive answer were not accidental. They were deliberate tactics that were highly prejudicial. Khalaf’s testimony was crucial to defendant. Kogut’s gratuitous remark, of which there was no evidence, contradicted the essence of Khalaf’s testimony.

That error was compounded because the State did not timely notify defendant that Kogut would be called as a rebuttal witness and did not tender the substance of the statements to which he would testify. Defendant argues that this discovery violation prejudiced him in the investigation and preparation of his defense. With prior notice, defendant indicates, he could have discredited the evidence and would have changed his strategy. Instead of calling Khalaf as a witness, he would have called Karen Emery, who testified at the first trial that Pappas told her that he did not see anything that night.

The State’s argument that its intent to call Kogut arose only after Khalaf took the stand is meritless. The State asserts that defendant did not suffer prejudice due to the timing of the rebuttal witness’ disclosure because the defense counsel was not surprised. The State argues that he was put on notice when the State was laying the foundation during Khalaf’s cross-examination, had the State’s interview notes, did not ask for a continuance, did not request to interview Kogut, and was able to cross-examine Kogut about his bias toward Khalaf, the State argues. Furthermore, the State claims, the defense counsel had earlier stated that Khalaf may not testify and her testimony from the previous trial could be used.

The record shows that on January 24, 1989, the defense counsel informed the trial court that Khalaf had moved and they had trouble locating her. Before she moved, however, she had been personally served with a subpoena to testify. There is nothing in the record that the defense counsel indicated that she may not testify and that he would use her testimony from the first trial.

The trial started on January 24, 1989. At the beginning of the afternoon session on January 26, 1989, defendant’s case in chief began. After Khalaf was sworn in, the defense counsel informed the trial court that the prosecutor told him of the possible cross-examination regarding Khalaf’s alleged statements to Kogut and that Kogut would testify. The defense counsel objected to any statement being used because he had no knowledge of it. The prosecutor orally represented his perception of the substance of the alleged statements made before and during the first trial.

Later that afternoon, Khalaf testified. After her testimony, the prosecutor gave the defense attorney Kogut’s notes. The next morning, Kogut testified in the State’s rebuttal case.

The defense counsel had no prior knowledge, other than Kogut’s notes tendered after Khalaf’s testimony, that any statements had been made by Khalaf. During the first trial, there was an in camera hearing between Khalaf and the trial judge. After the hearing, the trial judge informed the attorneys that Khalaf said that the prosecutor was saying she told him things on the telephone that she did not say. The substance of that phone conversation, however, was not revealed. When Kogut cross-examined Khalaf during the first trial, she admitted telling him earlier that she could not identify the attackers because she did not see their faces. No other impeachment was attempted.

Supreme Court Rule 412 (107 Ill. 2d R. 412) creates an affirmative duty for the State to disclose rebuttal witnesses once the State has formed the intent to call the witnesses. (People v. Washington (1989), 182 Ill. App. 3d 168, 174.) The purpose of the discovery rule is to provide the defense protection against surprise and unfairness, and to give defendant an opportunity to investigate the circumstances surrounding the making of a statement. Washington, 182 Ill. App. 3d at 174.

Supreme Court Rule 415(g) (73 Ill. 2d R. 415(g)) provides possible sanctions against a party that has failed to comply with an applicable discovery rule. The trial court may order disclosure of the information, grant a continuance, exclude the evidence, or enter such other order as it deems just under the circumstances. (People v. Weaver (1982), 92 Ill. 2d 545, 558.) The closer the evidence, the stronger is the case for excluding the statement or declaring a mistrial. The strength of the undisclosed evidence, the likelihood that prior notice could have helped the defense discredit the evidence, the feasibility of a continuance rather than a more drastic sanction, and the willfulness of the State in failing to disclose are factors which must be considered. (Weaver, 92 Ill. 2d at 560.) If the defendant is prejudiced by a discovery violation and the trial court fails to eliminate that prejudice, there is an abuse of discretion. People v. Harris (1988), 123 Ill. 2d 113, 151-52.

The record indicates that the State formed the intent to call Kogut in its rebuttal case before Khalaf testified. Khalaf had testified in the first trial and was scheduled to testify in the second trial before the mistrial occurred. The State was aware of her testimony and aware of Kogut’s potential testimony. Therefore, it seems improbable that the State did not form the intent to call Kogut as a rebuttal witness until after Khalaf testified. Before the defense witnesses testified, the State notified the defense counsel that Kogut may be called to testify to impeach Khalaf. Yet, the State did not tender Kogut’s notes regarding his prior conversations with Khalaf until after Khalaf testified, the evening before Kogut’s testimony.

Kogut’s testimony was very damaging to defendant. Khalaf was a crucial eyewitness who contradicted the State’s eyewitness testimony. Moreover, the evidence against defendant was not overwhelming. The untimely disclosure of the witness and the nondisclosure of the alleged statement prevented the defense counsel from properly investigating the matter. Because the nature of the undisclosed evidence was damaging and the State willfully failed to disclose it, fundamental fairness requires that defendant be entitled to a new trial.

There is no merit to defendant’s assertion that his sixth and fourteenth amendment rights to a fair and impartial jury were violated because the trial court did not excuse Jay Widgren, a prospective juror, for cause due to his being a party in a pending lawsuit. There is nothing in the record to indicate that Widgren was challenged for cause. The actual selection of the jury occurred in the judge’s chambers outside the presence of the court reporter. It was never put on the record. Defendant’s memorandum in support of the post-trial motion and the defense counsel’s oral argument on that motion are not sufficient. The record indicated that Widgren’s wife, not Widgren, had a pending lawsuit related to an automobile accident. There was also no merit to defendant’s contention that Widgren was not fair and impartial.

Finally, defendant asserts that he was denied a fair trial by the cumulative effect of the prosecutor’s improper closing argument comments vouching for the credibility of the State’s witnesses, misstating the evidence, and making remarks not based on the record. Most of these issues were either waived or were not improper. The prosecutor’s remarks regarding the alleged fear instilled by defendant in Khalaf, however, were improper.

Those improper remarks included:

“I submit to you, knock on any door in uptown [sic], you will find people like Chaka Kalliff [sic] who are too afraid to come in here and be involved, and you will find people throughout uptown [sic] who have good reason not to be involved. And that is exactly what happened with Ms. Kalliff [sic].
* * *
She is doing what she thought she had to do to protect her family, herself and her family. There is nothing wrong with that. That is why Mr. Kogut told her, you don’t have to come down if you are that afraid. We are not going to compel you to testify. [Khalaf] like Walter Pappas is afraid. She is afraid to testify against this guy and she told that to Mr. Kogut, as in the case of Walter Pappas. I submit to you she has good reason to be afraid, ladies and gentlemen. She is not an evil woman and she is not an immoral woman, and she is not a bad woman. She is just a woman like too many other people in uptown [sic], is afraid and doesn’t want to get involved.
* * *
[Khalaf] is a woman who is afraid ***. Her family still lives in that area. Her family still lives in that area. Her daughter and her grandchildren, and there isn’t a person here that wouldn’t think about their family, your own family. You would say I don’t want nothing [sic] to happen to them, but what is the price that I have to pay.”

Although evidence of a defendant’s intimidation of a witness is admissible because it is probative of consciousness of guilt, it is admissible only if there is actual evidence that the defendant made those threats. (People v. Frazier (1982), 107 Ill. App. 3d 1096, 1100.) Prosecutorial comments that suggest that a witness was afraid to testify because defendant had threatened or intimidated her, when not based on any evidence in the record, are highly prejudicial and inflammatory. (People v. Mullen (1990), 141 Ill. 2d 394, 405.) It is improper for the prosecutor to do or say anything in closing argument when the only effect will be to inflame the passion or arouse the prejudice of the jury against the defendant. People v. Smith (1990), 141 Ill. 2d 40, 60.

To be proper, closing argument comments on evidence must be either proved by direct evidence or be a fair and reasonable inference from the facts and circumstances proven. (Mullen, 141 Ill. 2d at 404.) There was no evidence of threats made by defendant or anyone else against Khalaf. The only testimony presented of any such threats was Kogut’s testimony, which was impeachment evidence, not substantive evidence. Improper use during closing argument of evidence that was introduced for a limited purpose can be reversible error. (People v. Fields (1988), 170 Ill. App. 3d 1, 15.) Since the improper remarks resulted in substantial prejudice to defendant, they are reversible error. The trial court’s instruction, that arguments by the prosecutors were not evidence and should not be considered by the jury during their deliberations, was not sufficient to cure the prejudicial impact of the State’s improper comments.

Based on the foregoing, defendant’s conviction is reversed and remanded for a new trial.

Reversed and remanded.

RIZZI and TULLY, JJ., concur.