author: JUSTICE MURRAY

text:
    HERTZ CORPORATION, Plaintiff-Appellant and Cross-Appellee, v. RODNEY GARROTT et al., Defendants (Joseph Ferraro et al., Defendants-Appellees and Cross-Appellants).
    First District (5th Division)
    No. 1—91—3068
    Opinion filed October 30, 1992.

      Wildman, Harrold, Allen & Dixon, of Chicago (Kevin T. Martin, Ruth E. VanDemark, and Anthony G. Hopp, of counsel), for appellant.
    Walwyn M. Trezise, of Chicago, and Lindquist & Vennum, of Minneapolis, Minnesota (Charles R. Weaver, Jr., of counsel), for appellees.
   JUSTICE MURRAY

delivered the opinion of the court:

This is the second time that the above-named parties have come before this court. The issues raised in the present appeal were briefed and presented in a previous appeal. (Hertz Corp. v. Garrott (1990), 207 Ill. App. 3d 644, 566 N.E.2d 337.) However, the merits of the issues raised were never reached in that appeal because we found that the trial court’s rulings had been premature. Consequently, we reversed the order appealed from and remanded the cause for further proceedings.

We further indicated in our opinion in the previous appeal that, upon the completion of proceedings in the lower court and submission of a supplementary record, this court would consider the merits of the issues raised based upon the briefs already submitted. Since our opinion in the first appeal was issued, the trial court has conducted further hearings and a supplementary record has been filed. Therefore, we now address the issues raised in the previously filed briefs, which have been resubmitted in the present appeal.

Once again, we are asked by both plaintiff, the Hertz Corporation (Hertz), and defendants, Joseph Ferraro (Ferraro) and Anita Whitehead (Whitehead), to consider the correctness of a judgment rendered by the circuit court of Cook County in a declaratory action filed by Hertz on November 18, 1988. (Ill. Rev. Stat. 1987, ch. 110, par. 2—701.) The facts of the case are not in dispute.

On October 4, 1986, Angelique Garrott rented an automobile from Hertz at one of its locations in Chicago, Illinois. At approximately 3 a.m. on October 5, 1986, Angelique’s husband, Rodney Garrott, was involved in an automobile accident near 2606 North Halsted in Chicago while he was driving the rental vehicle. Rodney Garrott collided with a vehicle owned by Yellow Cab Company (Yellow Cab) and driven by Folarin Gboyega (Gboyega). Ferraro and Whitehead were passengers in the cab at the time of the accident. Two unoccupied parked vehicles, one owned by Sharon Lampkin and one owned by Luigi Serra, were also struck.

As a result of the accident, several actions were filed. Ferraro and Whitehead filed a personal injury action (No. 87 — L—25105) against the Garrotts, Gboyega, and Yellow Cab, in which Yellow Cab filed a third-party action against the Garrotts and Hertz; Gboyega filed a personal injury action (No. 88—L—3265) against Rodney Garrott and Hertz; and Yellow Cab (No. 87—L—24643) and Sharon Lamp-kin (No. 87—M1—116208) filed property damage claims against the Garrotts and Hertz. These actions were later consolidated in the lower court.

In the meantime, Hertz filed a declaratory action, asking the trial court to find that Angelique Garrott breached the rental contract. The rental contract provided that the rental vehicle was to be operated only by the customer and certain authorized persons who were validly licensed and had obtained the customer’s prior permission. The customer’s immediate family members who were licensed drivers over the age of 25 were included among the authorized operators. On the back of the rental agreement, in small print, it further stated that if the customer permitted the use of the vehicle by an unauthorized operator or used or permitted the use of the vehicle in a prohibited manner, the collision damage waiver (CDW), all liability protection and other insurance coverage would be voided and the customer “may” then be responsible for all losses and damages to or connected with the vehicle.

Hertz alleged that Angelique permitted Rodney Garrott, who was unlicensed and under the age of 25, to operate the rental vehicle. Furthermore, Hertz alleged that Rodney Garrott engaged in a prohibited use of the vehicle, namely, operating the vehicle while under the influence of alcohol. Hertz asked the court to find that as a result of these breaches of the rental contract (1) Hertz was not contractually obligated to defend any claims brought against Angelique and Rodney Garrott arising from the October 5, 1986, automobile accident, (2) that the provisions of the rental agreement which would have obligated Hertz to provide indemnity for personal injury in the amount of $100,000 per person, $300,000 per accident and $25,000 in property damages, were voided, and (3) that Hertz, operating pursuant to a certificate of self-insurance under Illinois law (Ill. Rev. Stat. 1987, ch. 95½, par. 9—102), was obligated by statute to indemnify Rodney and Angelique Garrott for any and all claims arising from the October 5, 1986, accident, only to the extent of $50,000 in the aggregate pursuant to the provisions of sections 9—103 and 9—105 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95½, pars. 9—103, 9—105).

The Garrotts, Sharon Lampkin and Luigi Serra did not file an appearance or response to Hertz’s declaratory action. Therefore, Hertz moved for and obtained a default judgment against them.

At the trial on the declaratory action, in order to avoid the “permissive user” defense, all parties stipulated that Angelique Garrott permitted her husband, Rodney Garrott, to use the vehicle she had rented from Hertz. Hertz then presented evidence to show that Rodney Garrott had been under 25 years of age when he operated the rental vehicle and that he had been unlicensed to drive in the State of Illinois because his license had been suspended since 1985. Hertz also presented a -witness who testified that at the time Rodney Garrott drove the rental vehicle and became involved in the accident on October 5,1986, Garrott had been intoxicated.

The trial court issued an order on February 13, 1990, making certain findings of fact and law. The trial court found, as fact, that (1) at the time of the accident Rodney Garrott had his wife’s permission to use the rental vehicle, (2) that Rodney Garrott did not have a valid driver’s license, and (3) that Rodney Garrott had been operating the rental vehicle while intoxicated.

The trial court concluded, as a matter of law, that the rental contract between Angelique Garrott and Hertz had been breached, that Hertz was under no contractual obligation pursuant to the rental agreement to provide Angelique or Rodney Garrott with a defense or indemnity to third parties for personal injury or property damage arising from the accident, but that Hertz had a statutory obligation to indemnify third parties up to the sum of $50,000 for each person claiming personal injury or property damage as a result of the October 5, 1986, accident. After motions to reconsider were denied both sides appealed.

Now on appeal, defendants Ferraro and Whitehead argue that the trial court erred when it held that Hertz’s contractual obligation to provide liability coverage was voided by the intoxication of the driver. Admitting that Illinois courts have not yet considered whether exclusionary clauses based upon the intoxication of the driver may be enforced in car rental agreements, they argue that the court’s finding is contrary to analogous Illinois law as well as public policy. They contend that the ruling offends public policy concerns because it punishes the innocent victims of drunk drivers, and not the drunk drivers, by nullifying coverage which would compensate the victims, who are third-party beneficiaries to the insurance contract. Ferraro and Whitehead also direct this court’s attention to opinions from other jurisdictions which have invalidated such exclusionary clauses as against public policy.

Consequently, defendants urge this court to rule that the amount of indemnification available to the injured parties should remain that which would have been provided under the rental agreement, despite the prohibited use of the rental vehicle. In the alternative, they ask this court to affirm the trial court’s interpretation of Hertz’s statutory obligation.

Hertz, on the other hand, argues that the trial court correctly enforced the exclusionary clause within the rental contract, thereby nullifying liability coverage upon the showing of a prohibited use of the rental vehicle, i.e., the intoxication of the driver. Hertz contends that public policy does not demand that it provide complete compensation for injuries to the public, but only that amount of compensation designated sufficient pursuant to the financial responsibility statute with which it must comply. Hertz argues that by providing the basic level of indemnity for the benefit of the public required by the financial responsibility laws, it has fulfilled any obligation under the notion of public policy and, therefore, the exclusionary clause within its rental contract need not be found invalid as against public policy.

Hertz then goes on to argue, in its separate appeal, that the plain language of section 9—103 of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95½, par. 9—103), its legislative history, as well as common sense and public policy, require reversal of the trial court’s declaratory judgment with respect to the interpretation of section 9—103 of the Illinois Vehicle Code. Hertz points out that the trial court’s interpretation of the statute requires Hertz to indemnify injured parties of this accident in the amount of $50,000 per person sustaining bodily injury or property damage, which is a greater amount than would be required if the contract was in force, i.e., $100,000 per person, $300,000 per occurrence and $25,000 for property damage.

Gboyega, who has filed only a reply brief with this court, argues merely that the trial court’s interpretation of section 9 — 103 should be affirmed.

Opinion

We first address the issue of whether the trial court erred by giving effect to the exculpatory clause contained within Hertz’s rental agreement which voided the liability protection and insurance provisions based upon the prohibited use of the rental vehicle, i.e., Garrott’s driving while intoxicated. Whether rental companies may condition liability protection upon the customer’s adherence to all the provisions contained within the rental agreement, including a prohibition against driving while intoxicated, is an issue of first impression in the State of Illinois. However, after reviewing the case law from this and other jurisdictions cited by defendants, Ferraro and Whitehead, we conclude that the trial court erred when it determined that Hertz could employ the exculpatory clause contained within its rental agreement to avoid its obligation to provide liability protection at the level indicated within the rental agreement. We find that the exclusionary clause is void as against public policy and that the liability provision contained within the rental agreement must be given full force and consideration.

As stated earlier, on the front of Hertz’s rental agreement signed by Angelique Garrott, it indicated that the rental vehicle was only to be operated by the customer and certain other authorized operators. The front of the form also contained a section dealing with liability coverage and insurance. This section clearly provided the customer with several different options. In this case Angelique Garrott accepted, for additional consideration, collision damage waiver (CDW) for the full value of the vehicle. She declined, however, personal accident insurance (PAI), personal effects coverage (PEC), and liability insurance supplement (LIS). Just above Garrott’s initials for declining LIS, however, the agreement indicated that liability protection (which was included in the cost of leasing the vehicle) had been increased to $100,000 per person and $300,000 per accident for bodily injury and to $25,000 for property damage. This was an increase from the amounts of $25,000/$50,000 for bodily injury and $10,000 for property damage which were listed on the back of the form.

Nowhere on the front of the form did it state what the ramifications would be for failing to comply with the various restrictions. Nor did it indicate on the front of the form that liability protection would be withdrawn if the vehicle was operated in any one of a number of prohibited ways. That information was only contained on the reverse side of the form, in “paragraphs 4 and 5,” written in small print.

As stated earlier, there are no cases in this State Which have dealt with the circumstance presented in this case. However, Standard Mutual Insurance Co. v. General Casualty Cos. (1988), 171 Ill. App. 3d 758, 761, 525 N.E.2d 965, is an Illinois case wherein the insurer of the car rental company contended that its obligation to provide liability insurance became null and void when an authorized user of the rental vehicle violated the rental agreement by driving the vehicle outside the State (in Canada) without the written permission of the rental agency. The court found that “the conditions precedent to coverage in the rental agreement drastically reduce the amount of coverage provided to the renter under the Policy [the auto insurance policy issued by General Casualty to the rental agency]. This not only contravenes public policy, it also directly contradicts [the renter’s] reasonable expectations that when he paid [the rental agency] for liability coverage, he would be relieved from liability in the event of collision.” 171 Ill. App. 3d at 761.

The same conclusion was reached in Fidelity General Insurance Co. v. Nelson Steel & Wire Co. (1971), 132 Ill. App. 2d 635, 270 N.E.2d 616. In Fidelity the insurer brought an action for reimbursement against the renter of a rental vehicle. The rental agreement provided that the renter would indemnify the insurance company for any and all losses resulting from the operation of the vehicle in violation of the terms and conditions of the agreement. The court held that the reimbursement provision within the rental agreement was against public policy and unenforceable because the conditions under which the renter became liable for reimbursement were so broad that the agreement virtually made the renter self-insured in almost every claim situation.

Although these cases are not directly on point, since they do not deal with the rental agency’s attempted exculpation based upon the intoxication of the driver, they lend support for the notion that car rental agencies may not evade their responsibility to provide liability protection by inserting into their rental agreements a number of broad and sweeping conditions which nullify such protection. (See also Tom Sawyer Country Day School v. Providence Washington Insurance Co. (1985), 108 A.D.2d 810, 485 N.Y.S.2d 126.) In fact, Hertz conceded at oral argument that a total disclaimer of liability protection is not possible because of the agency’s statutory obligation. Nonetheless, Hertz would have us uphold a provision in its rental contract which disclaims all liability protection based upon the prohibited use of the vehicle and then have us substitute Hertz’s statutory obligation for the contractual obligation. We cannot agree.

First of all, we do not find the situation here to be significantly different than the situations presented in Standard Mutual and Fidelity, merely because the present case deals with an exclusion based upon the use of intoxicants. There have been a number of cases in other jurisdictions where the courts have considered the issue and ruled that such exculpatory clauses are void as against public policy. These cases include Bass v. Horizon Assurance Co. (Del. 1989), 562 A.2d 1194, Donegal Mutual Insurance Co. v. Long (Pa. Super. 1989), 564 A.2d 937, Allstate Insurance Co. v. Sullivan (Mo. App. 1982), 643 S.W.2d 21, and Universal Indemnity Insurance Co. v. Tenery (Colo. 1934), 39 P. 2d 776.

As stated in Bass, a situation very close to the one at bar:

“[T]he fixing of penalties for antisocial conduct is, in the first instance, a governmental responsibility through legislative response. The Delaware General Assembly has expressly determined the consequences which result from a conviction of driving under the influence. These sanctions include the criminal penalties of fine and/or imprisonment, 21 Del. C. §4177(d) and license revocation through administrative action, 21 Del. C. 54177A. We do not believe that the General Assembly, in addition to the imposition of these substantial penalties, also intended, by implication, to work a forfeiture of insurance protection purchased in conformity with State law.” Bass, 562 A.2d at 1197.

So, too, in this case, we believe that Hertz, a private entity, does not have the ability to separately impose sanctions upon private citizens for driving while intoxicated, in the name of the public policy, when such sanctions work a hardship upon the general public and, at the same time, benefit the rental agency and/or its insurer.

In addition, we find no merit to Hertz’s contention that upon a finding that the exculpatory clause is void, its obligation to indemnify third parties is limited to the amounts required by statute for the agency to demonstrate its financial responsibility. Chapter 9 of the Vehicle Code provides that owners of for-rent vehicles, in order to operate their business in the State of Illinois, must demonstrate financial responsibility by (1) posting bond, (2) obtaining insurance, or (3) obtaining a certificate of self-insurance. (Ill. Rev. Stat. 1985, ch. 95½, par. 9—101 et seq.) At the time of the accident, if a bond was posted, the amount of the required bond was $50,000, if a policy of insurance was obtained, the amount of liability insurance coverage necessary was $50,000. Nevertheless, we find that the statute merely prescribes the minimum amounts needed by a rental agency to conduct business in the State. The statute in no way defines the scope of the obligation that may be assumed by the rental agency by separate agreement. If Hertz wanted to provide liability protection at a level that would merely satisfy the minimum requirement under the statute, it was free to have done so in the contract. It did not choose to do so, however.

Furthermore, finding that the exculpatory clause was invalid does not invalidate the entire contract, only the offending clause. In fact, if we were to substitute the financial responsibility limits for the invalid provision we would be bifurcating the contract and reforming it, adding the alternate amounts of coverage. We believe that invalidating the exculpatory provision as against public policy requires only that we strike the offending provision. The contract, which set the contractual obligation for liability protection, remains in force.

Having decided to reverse the trial court’s decision on the validity of the exculpatory provision, we need not rule on the the trial court’s interpretation and construction of Hertz’s statutory obligation to indemnify third-party claimants.

The judgment of the trial court is reversed. We find that the provision within the rental contract which voided liability protection based upon the prohibited use of the rental vehicle, namely, driving while under the influence of an intoxicant, is found to be invalid as against public policy. We find that Hertz’s duty to indemnify the Garrotts for liability incurred is defined by the rental contract.

Reversed.

McNULTY, P.J., and GORDON, J., concur.

       Although Hertz sought a declaration that it was not obligated to defend the Garrotts, it is undisputed that Hertz did assume the defense of Rodney and Angelique Garrott in all underlying negligence actions arising out of the October 5, 1986, accident and that attorneys retained by Hertz for the Garrotts continue to defend the Garrotts in the underlying actions.

       As stated earlier, the consolidated appeals of plaintiff Hertz and defendants Ferraro and Whitehead were submitted to this court previously, but not considered on their merits. It is those appeals which are presently being considered in this appeal.

       The prohibited uses of the rental vehicle listed in paragraph 5 on the reverse side of the rental agreement were as follows:
      “(a) to carry persons or property for hire, (b) to propel or tow any vehicle trailer or other object, (c) in any race or contest, (d) for any illegal purpose, (e) to instruct an unlicensed person in the operation of Vehicle, (f) if Vehicle is obtained from lessor by fraud or misrepresentation, (g) to carry persons other than in passenger compartment of Vehicle, (h) loading Vehicle beyond its rated capacity, or (i) while under the influence of alcohol or other intoxicants like drugs or narcotics.”


source: Caselaw Access Project

author: PRESIDING JUSTICE HARTMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL McCOY, Defendant-Appellant.
    First District (2nd Division)
    No. 1—89—3238
    Opinion filed November 4, 1992.
    Rehearing denied January 22,1993.

      Randolph N. Stone, Public Defender, of Chicago (R.H.R. Silvertrust, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Janet Ma-honey, and Leslie Quade, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

A jury found defendant, Michael McCoy, guilty of murder (Ill. Rev. Stat. 1985, ch. 38, par. 9—1) and armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18—2). The circuit court sentenced him to life imprisonment without parole for murder and 30 years for armed robbery, to be served concurrently. He appeals, questioning whether (1) the court erred in denying his motion to quash arrest and suppress certain evidence; (2) he was deprived of his right to confront witnesses; (3) the State improperly introduced evidence of a codefendant’s other crimes; and (4) the prosecutor’s closing remarks were highly inflammatory and prejudicial.

Prior to trial, defendant moved to quash his arrest and suppress evidence. At the hearing on his motion, Chicago police officer Michael Ballard testified that he was assigned to investigate the 1 a.m., April 10, 1986, homicide of the victim, Nazih Youssef. From a police report, Officer Ballard determined that there were three male perpetrators. The first, who was identified as the shooter, was described as a black male; was between 25 and 35 years of age; weighed 160 to 190 pounds; was 5 feet 6 inches to 5 feet 8 inches tall; was dark-complected; had a moustache; wore a large earring in his left ear; wore a sports cap; wore a black leather jacket; and wore dark gym shoes.

On April 12, 1986, Officer Ballard questioned people in the homicide neighborhood. One such person, known only as John, told him that defendant and another individual were involved in the homicide. John had not previously given the officer information which led to a felony arrest. Ballard did not know where John lived, but had spoken to him before. John mentioned that defendant always wore a large gold snake earring in his left ear. John’s description of defendant’s height, weight and complexion matched that of the shooter set out in the police report.

Later that afternoon, Officer Ballard and his partner received á radio call and proceeded to 3618 South State Street, where defendant was seated in a green automobile directly across the street from where the homicide took place. Defendant was asked to get out of his car. He was wearing a black baseball cap, a black leather jacket and a jogging outfit. There was a gold earring in his left ear. Defendant was 24 years old, 5 feet 9 inches tall, and weighed 170 pounds. Based upon John’s information and the description from the police report, defendant was placed under arrest. A picture of defendant taken two days after the crime occurred showed that he had a goatee, which was not mentioned in the report referenced by Officer Ballard. Also, defendant’s hairstyle was different prior to his arrest.

Following argument, the court denied defendant’s motion and the case proceeded to trial.

Abd Ahmad, the victim’s father, testified that on April 10, 1986, in the early morning hours, Youssef’s wife called, informing him that the victim had been shot. Abd identified Youssef at the county morgue.

Hussein Awwad testified that he worked as a cashier in the store owned by the victim. Prior to the incident, Awwad observed a new employee, Wayne Millighan, not working, but watching where the cash was kept. Millighan worked only one night. After being informed of Millighan’s activity, the victim first paid him and then fired him.

On April 9, 1986, at approximately 11 p.m. or 11:30 p.m., Awwad observed Millighan and another person enter the store, buy some liquor, drink inside the store and bother the customers. At about 1 a.m., on April 10, 1986, Awwad was in the stockroom and Mohammed Ghrayyib, another witness, was working in the grocery section near a cash register, making coffee. The victim was in the liquor section at the back of the store, and another employee, Achmaad Hassan, was in the beer walk-in cooler. Awwad heard a “great” noise at a locked door that separated the counter from the lobby area. He proceeded to the front of the store, saw Millighan holding a small silver automatic, and heard him announce a stick-up. Millighan had entered the restricted area through the door leading from the customer area and was standing next to the cash register.

After Millighan ordered Ghrayyib to open the cash register, Millighan grabbed the entire tray from the cash register and started taking money. Awwad heard a shot, which came from the liquor section of the store. Millighan said “come on, let’s go, we are done.” Millighan exited; another offender, who was in the entrance, walked out second; and the alleged shooter fled last from the liquor section, holding a dark, long-barrelled revolver and a bag of the type used to hold money. Awwad had seen the shooter before. He was walking fast and passed within four or five feet of the witness.

Awwad found the blood-covered victim lying on the floor in a small office where money was kept. Awwad called the police. He described the man who came from the shooting as having an earring, a mustache, a small beard and wearing blue jeans. The offender was about 5 feet 9 inches tall "with a dark complexion. On April 12, 1986, Awwad identified defendant at a lineup as the person who left with the black revolver, coming from the area where the shot was heard. He also identified defendant in court as that man. On July 24, 1986, he identified Millighan in a lineup.

Loretta Jackson testified that on April 10, 1986, at about 1 a.m., she was leaving her friend Cecelia Hale’s Chicago Housing Authority (CHA) apartment located across the street from the incident, with her fiancee, Donel Collins. Millighan approached them and shot Collins following an argument. He used a small- to medium-sized silver automatic handgun.

Jackson’s brother took Collins from Hale’s apartment to the hospital. Subsequently, they spoke to the police at the hospital, and Jackson picked Millighan out of a photograph display about one week later. She asserted that Millighan’s nickname was “Insane Wayne.”

On cross-examination she testified that Millighan had facial hair and Jheri curl styled hair.

Hale testified that as Collins was being driven to the hospital, she remained in her apartment. From her window she observed Millighan with two other males across the street enter Youssef’s food and liquor store. Twenty minutes later, she went back to the window and saw police cars in front of the store.

Defendant moved to strike the testimony of Jackson and Hale. The court denied the motion, but agreed to admonish the jury that the testimony of another crime is not to be considered as a crime committed by defendant.

Ghrayyib, in addition to substantially corroborating Awwad’s testimony, asserted that he identified defendant from a photograph array and from a lineup as the man who, carrying a black .38-caliber revolver and a money bag, came from the immediate area in which the victim was shot. He also identified defendant in court. Ghrayyib subsequently identified Millighan in a lineup.

Achmaad Hassan, who was in the cooler area during the incident until hearing a shot, verified that Millighan worked at the store, as well as the events which took place prior to the incident. He identified Millighan from a photograph display and identified defendant as one of the people drinking inside the store prior to the homicide. He also identified defendant in court and Millighan at a lineup.

Chicago police detective Leo Wilkosz testified that on April 10, 1986, at about 1:40 a.m., he was assigned to investigate a homicide-robbery at 3615 South State Street. He arrived with other detectives and entered the food and liquor store at that address. Initially, he discovered a shoe print on galvanized sheet metal covering a door. He found the victim dead, lying on the floor, atop a cash register drawer, covered with blood. The victim was shot in the left side of the head.

Detective Wilkosz learned that at approximately the same time as the occurrence at this address, there was another shooting across the street in a CHA building. After further investigation, he spoke to three witnesses. Only two described the incident because one witness did not view the people in the store. Based upon these descriptions and a report, Wilkosz compiled a description of the shooter, namely, that he was a dark-complected black male, 25 to 30 years old, 5 feet 6 to 5 feet 8 inches tall, weighing 160 to 190 pounds, and had a mustache. The offender was wearing a black sports cap, a black waist-length leather jacket, and blue jeans. He wore a gold earring in his left ear and carried a dark, long-barrelled handgun.

The witnesses also described another man, who stayed in the grocery area toward the front of the store with one of the witnesses. This person removed cash and food stamps from the cash register. He was carrying a small, silver automatic pistol, similar to the weapon purportedly used in the shooting at the CHA building. One of the witnesses informed Detective Wilkosz that the shooter kicked a door in. His report did not note any offender having had a goatee.

Chicago police officer Robert Smith, testifying as an expert in firearms identification, described the bullet that killed the victim as .38-caliber, shot from a revolver.

Officer Rick Roberts of the Chicago police department testified as an expert in forensic serology. He received defendant’s gym shoes and a vial of the victim’s blood. He was able to determine that there was blood on the shoes; however, the amount of the sample was insufficient for further testing:

Yuksel Konakci, M.D., an assistant medical examiner and expert in autopsies, testified that the cause of death was a close-range gunshot to the left side of the victim’s head.

Officer Ballard’s trial testimony tracked that which he gave at the pretrial hearing. He identified defendant in court and defendant’s earring. At the time of arrest he noticed a tattoo on defendant’s arm. Defendant stipulated that the word “Iceberg” was tattooed on his left arm.

Chicago police detective James O’Connell testified that he investigated the shooting and homicide of Collins. He corroborated the testimony regarding the. prior photograph identification of defendant and Millighan. He identified defendant in court and verified the lineup identification of defendant and Millighan. He also inventoried defendant’s gym shoes and earring.

The State rested. The defense called four witnesses.

Chicago police officer Anthony Mickel asserted that the description of the offenders sent in a flash message over the police radio did not note that defendant had facial hair. Officer Thaddeus J. Melko, a Chicago police evidence technician, found no suitable fingerprints in the room where the victim was shot. He removed metal from a door with a shoe print created when one of the offenders allegedly kicked the door open. Chicago police officer William E. Sherlock, a crime laboratory examiner, asserted that the shoe print left on the door did not match the shoes defendant was wearing when arrested.

Beverly Keziah Barney, who knew defendant, identified him in court. She saw someone running with a tray of money near the store on April 10, 1986, at approximately 1 a.m. She was across the street. Seven or eight men were present, but defendant was not one of them. The men ran past her.

Defendant rested. He was thereafter found guilty and sentenced as first noted.

I

Defendant asserts that his arrest was without probable cause because it was based entirely on the information of an anonymous informer who was not an eyewitness and from whom the police never previously received information; therefore, his motion to quash arrest and suppress the evidence should have been granted.

The record shows that after reading a description of the three offenders, Officer Ballard interviewed neighborhood people near the shooting. John, a person the officer had seen in the neighborhood previously, told him he heard that two people, “Iceberg” and “Insane Wayne,” were involved in the shooting. John told the officer that defendant’s nickname was “Iceberg,” and described defendant’s height and weight, that he wore an earring and of defendant’s dark complexion. John’s description of defendant approximated that of the shooter set forth in the police report that Ballard read.

Later that day, after receiving a radio call informing him defendant was sitting in a green automobile at 3618 South State Street, Officer Ballard went to that location, where he found defendant. He was wearing a sports cap, a black leather jacket and a gold earring in his left ear. Defendant weighed 170 pounds, measured 5 feet 9 inches tall and was 24 years old. His appearance matched John’s description and that found in the police report.

Defendant maintains that because Officer Ballard did not know where John lived; there were no other occasions where John gave information leading to a felony arrest; John did not see the offense; and defendant was not engaged in unusual activity at the time of arrest, the police information was uncorroborated, unreliable and his arrest was not based on probable cause.

It is not entirely clear that John was an informant as that term is commonly understood in criminal cases. Those who supply information after being interviewed by a police officer or who give information as witnesses during the course of an investigation are not “informers.” (People v. Asteri (1990), 196 Ill. App. 3d 885, 890, 554 N.E.2d 1059; People v. Jones (1983), 119 Ill. App. 3d 615, 623, 456 N.E.2d 926, appeal denied (1984), 99 Ill. 2d 532.) Here, John may not have been an “informer” because, from all that appears, he gave information as a citizen pursuant to an investigation.

In any event, the circuit court’s determination that probable cause existed will not be disturbed unless manifestly erroneous. (People v. Evans (1988), 125 Ill. 2d 50, 71, 530 N.E.2d 1360.) Probable cause is found when the police possess enough evidence to lead a reasonable person to believe that a crime has been committed and that it was committed by defendant. (People v. McCleary (1990), 208 Ill. App. 3d 466, 477-78, 567 N.E.2d 434.) The totality of the facts and circumstances known to the police officer must be considered. (McCleary, 208 Ill. App. 3d at 478.) A general description of an offender is sufficient to establish probable cause when supported by other relevant facts known to the arresting officer. (People v. Lippert (1982), 89 Ill. 2d 171, 180-81, 432 N.E.2d 605.) From the facts noted in the opening paragraphs of this point, the circuit court’s finding of probable cause to arrest defendant for the offenses charged is sufficiently supported and by no means was manifestly erroneous.

Additionally, the State correctly maintains that if John were considered to be an informant, his information was reliable due to corroboration. Corroboration of an informant’s tip lends reliability to the alert because it reduces the risk that it stems from an inaccurate rumor or a fabricated story. (People v. Tisler (1984), 103 Ill. 2d 226, 469 N.E.2d 147.) Here, John’s description of defendant was corroborated by the description of defendant in the police report and defendant’s appearance at arrest.

Defendant’s arrest was based upon probable cause and was legal.

II

Defendant insists he was deprived of his constitutional right to confront witnesses, where the police were allowed to testify that an anonymous informer told them defendant was involved in the murder of the victim.

Prior to trial, defendant made a motion in limine to prevent Officer Ballard from testifying that John told him defendant was the person for whom police were looking. The circuit court ruled the officer could testify that he made an investigation and talked to people and, as a result, he was seeking defendant. The court ruled further that it would not let the officer testify as to descriptions.

During cross-examination, Officer Ballard denied having included the names of any of the people he interviewed or the places he went to interview the people in his report. During redirect examination, the State asked Ballard to read from his police report. It was intended that Ballard read a marked portion of the report which recorded “has spoken to a citizen who stated he did not want to become involved.” Ballard, however, went beyond the marked portion and read, “but said Michael Iceberg McCoy and Insane Wayne were the people the police were looking for.” The circuit court denied defendant’s motion for a mistrial and instructed the jury that the added testimony was stricken. The court was unsure that the jury heard the stricken words.

Defendant made a second motion for mistrial which was denied. The court reasoned that the statement was not prejudicial because testimony was previously introduced that police were looking for Iceberg and Insane Wayne. During closing argument, the prosecutor remarked to the jury that the officer was looking for “Michael Iceberg McCoy” due to his investigation. Defendant avers the use of the disputed statement constitutes hearsay, which violates defendant’s constitutional right to confront witnesses.

A police officer’s testimony recounting steps taken in the course of an investigation may be admissible without violating defendant's confrontation rights, although the officer’s description of the progress of the case might suggest that nontestifying witnesses implicated defendant. (People v. Johnson (1987), 116 Ill. 2d 13, 24, 506 N.E.2d 563.) The testimony, however, should not set forth the substance of the conversation, which would be inadmissible hearsay. (Johnson, 116 Ill. 2d at 26-28.) The State maintains the contents of the conversation did not go to the truth of the matter asserted, but to the officer’s course of conduct. Because defendant told Officer Ballard his nickname was Iceberg, the State avers, John’s implication of “Michael Iceberg McCoy” was demonstrative of Officer Ballard’s course of conduct. John’s statement, it is asserted, showed why the officer arrested defendant.

Defendant persuasively maintains that he was directly implicated by the statement, in violation of his right to confrontation. (Johnson, 116 Ill. 2d at 24.) Confrontation errors, although constitutional violations, do not automatically warrant reversal, however. Defendant’s conviction may be affirmed where the error was harmless beyond a reasonable doubt. (Johnson, 116 Ill. 2d at 28.) Admission of hearsay evidence is harmless error if there is no reasonable possibility the verdict would have been different had the hearsay been excluded. People v. Bodoh (1990), 200 Ill. App. 3d 415, 431-32, 558 N.E.2d 178.

Defendant in this case was seen in the store by two eyewitnesses at 1 a.m. Defendant went past the two witnesses on his way out of the store. Three witnesses recognized him as having been there at 11 p.m. that evening, where he remained and drank gin. Further, two of the witnesses identified defendant in a lineup as the person they had seen leaving the area where the victim had been shot and killed. The other witness identified defendant as the person in the store with Millighan at 11 p.m. The court observed that the jury may not have heard the disputed testimony. Furthermore, as the circuit court stated, defendant’s nickname was previously revealed in testimony as was the fact that police were looking for him.

It is within the discretion of the circuit court to determine the propriety of declaring a mistrial, which will not be disturbed absent an abuse of discretion. (People v. Redd (1990), 135 Ill. 2d 252, 323, 553 N.E.2d 316.) The court in the present case did not abuse its discretion, because the error was harmless under all circumstances.

Ill

Defendant identifies prejudicial error in the State’s having introduced evidence of a crime committed by a codefendant, where defendant was not himself implicated.

Prior to trial, defendant moved in limine to preclude as prejudicial Jackson’s and Hale's testimony, which related the shooting of Collins across the street from the robbery-murder because defendant was not involved in the shooting of Collins and because it was evidence of another crime committed by a codefendant. The State maintained the testimony of Jackson and Hale corroborated the eyewitnesses’ testimony that Millighan was at the scene of the murder; therefore, because the eyewitnesses properly identified Millighan, it was more probable that the eyewitnesses properly identified defendant, making the disputed testimony relevant. The court denied the motion in limine based upon this identification factor.

Defendant avers it was not necessary to introduce testimony about the shooting of Collins in order to place Millighan at the scene with a silver gun. Jackson merely could have testified, it is asserted, that she had an argument with Millighan and had seen him brandish a gun. Likewise, Hale merely could have stated she looked out of her window and saw Millighan heading toward the liquor store. Defendant asserts, therefore, testimony regarding the shooting of Collins was unnecessary and highly prejudicial. Defendant adds that the testimony was irrelevant because there was evidence that Millighan had worked at the store previously and was known by the witnesses. Further, defendant avers possession of the silver gun was irrelevant because Millighan could have given it to anyone subsequent to shooting Collins and prior to entering the store.

In further support of the relevance of Jackson’s and Hale’s testimony, the State points to Jackson’s assertion that other men were present with Millighan when he shot Collins. Hale averred that Millighan was with two other men when she observed him walk into the liquor store, and the shootings happened within minutes of each other. Based upon these facts, the State additionally claims the testimony corroborates the eyewitnesses’ identification of Millighan, which in turn corroborates the eyewitnesses’ identification of defendant, because the events happened shortly after one another at about the same location. The State adds that because Jackson and one of the witnesses testified that Millighan had a small silver handgun, it was more probable than not that defendant shot the victim because the victim was killed with a .38-caliber revolver and not by a small handgun.

It is the function of the circuit court to weigh the probative value and prejudicial effect of evidence. Relevant evidence is that having any tendency to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. (People v. Gonzalez (1991), 142 Ill. 2d 481, 487-88, 568 N.E.2d 864.) The court’s decision will not be overturned on appeal absent a clear abuse of discretion. (Gonzalez, 142 Ill. 2d at 489.) When the court denied the motion in limine here, it found the testimony to be relevant to identification notwithstanding the alleged prejudicial effect. The court’s decision was not a clear abuse of discretion. Gonzalez, 142 Ill. 2d at 489.

Furthermore, as the State asserts, the prohibition against evidence of other crimes has limited application here because the evidence was not of defendant’s other crimes, but of Millighan’s other crime. In any event, the testimony was relevant to show identity. People v. Hayes (1990), 139 Ill. 2d 89, 145, 564 N.E.2d 803.

If error was committed, it was harmless in light of the considerable evidence implicating defendant. People v. Lindgren (1980), 79 Ill. 2d 129, 141, 402 N.E.2d 238.

IV

Lastly, defendant urges the State’s conduct of drawing the jury’s attention to blood on defendant’s shoes and implying that it was that of the victim was highly inflammatory and prejudicial, especially where there was no evidence that the blood was in fact that of the deceased.

In closing argument, the prosecutor remarked to the jury that the victim’s blood was on defendant’s shoes, which defendant took steps to remove thereby explaining why so little blood was found on the shoes. Defendant contends that there was no evidence to support these remarks, pointing to the laboratory technician’s assertion that while the shoes had blood on them, he could not determine whether the blood was the victim’s or was even human. Defendant argues that the State’s remarks were made to inflame the jury and were not based on the evidence. The State avers that (1) the remarks were properly based on legitimate inferences drawn from the evidence; (2) any error was cured by the jury instructions given; and (3) even if the comments were improper and not cured, any error was harmless and not a ground for reversal.

A prosecutor is allowed considerable latitude in making closing arguments. (People v. Moman (1990), 201 Ill. App. 3d 293, 315, 558 N.E.2d 1231.) Because the circuit court is generally in a better position than a court of review to determine the prejudicial effect, if any, of comments made during closing argument, its ruling will be upheld absent a clear abuse of discretion. (People v. Gonza lez (1991), 142 Ill. 2d 481, 494, 568 N.E.2d 864.) Closing argument properly can be based upon logical inferences drawn from the evidence. (People v. Collins (1985), 106 Ill. 2d 237, 277, 478 N.E.2d 267.) As the State maintains, the disputed remarks here were logical inferences drawn from the evidence that there was blood on the floor and walls where the victim was shot. Further, it should be noted that the prosecutor also mentioned the inconclusive results of the blood tests.

Nevertheless, any error was cured by the jury instructions given here. (People v. Stiff (1989), 185 Ill. App. 3d 751, 757, 542 N.E.2d 392.) A jury is presumed to abide by a court’s instruction that closing argument is not evidence and will disregard testimony not admitted into evidence, thereby curing any harm incurred. (People v. Lasley (1987), 158 Ill. App. 3d 614, 626, 511 N.E.2d 661; People v. Bracy (1986), 152 Ill. App. 3d 566, 576, 504 N.E.2d 764.) The court here stated, in response to defense counsel’s objections to the remarks, that the jury heard the evidence and could draw inferences therefrom. Additional instructions given told the jury that closing argument was not evidence; argument not based on evidence should be disregarded; it was the jury’s duty to determine the facts in the case from the evidence presented; they should disregard testimony which the court had refused or had stricken; they should only consider testimony of witnesses and exhibits which the court received; defendant was presumed innocent; the State must prove defendant guilty beyond a reasonable doubt; and defendant was not required to prove his innocence. Based upon these instructions, any error was cured.

For the reasons set forth above, we find no bases upon which to disturb the jury’s verdict in this case. Accordingly, the judgment of the circuit court must be affirmed.

Affirmed.

SCARIANO and McCORMICK, JJ., concur.

       Wayne Millighan was tried separately and is not involved in this appeal.


author: JUSTICE McCORMICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VINCENT C. WATKINS, Defendant-Appellant.
    First District (2nd Division)
    No. 1—90—0871
    Opinion filed November 4, 1992.

      Rita A. Fry, Public Defender, of Chicago (Donald S. Honchell, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and James Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McCORMICK

delivered the opinion of the court:

Defendant, Vincent C. Watkins, was charged with attempted armed robbery, attempted robbery and aggravated unlawful restraint. A jury found defendant not guilty of attempted armed robbery and attempted robbery, but guilty of aggravated unlawful restraint. The trial court entered judgment on the verdicts. The trial court denied defendant’s motion for a new trial and sentenced defendant to 30 months’ probation, with the first six months to be served in the Department of Corrections.

On appeal, defendant argues that (1) the State did not prove him guilty beyond a reasonable doubt of aggravated unlawful restraint; (2) the trial court abused its discretion in refusing to allow defendant to reopen his case to perfect impeachment of a State’s witness; and (3) the State violated his fifth and fourteenth amendment rights when the State introduced evidence that made reference to defendant’s post-arrest silence. We affirm the decision of the trial court because there was ample evidence to prove defendant’s guilt beyond a reasonable doubt, there are no facts or circumstances that require the trial court to reopen the case, and defendant’s constitutional rights were not violated.

At trial, Raymond Boyd testified that on February 6, 1989, he worked as a security guard at an Illinois Bell Telephone Company bill payment center located at 4133 West Madison. Boyd was in uniform, but he did not carry a gun, only handcuffs. Boyd’s duties included giving information to customers and maintaining crowd control. There were approximately 60 to 80 people waiting in an S-curved line to pay their bills.

Boyd testified that at approximately 11 a.m., he saw defendant standing in the doorway of the payment center, wearing work pants, boots and a field jacket. Defendant approached Boyd and said something to him, but he could not hear defendant because of the noisy crowd and did not respond. Defendant pulled out a pistol with a black or bluesteel barrel, pushed it into Boyd’s ribs and put his left arm around his shoulder holding him close. Defendant said, “Let’s go up to the front and get the money.” As defendant proceeded to walk, Boyd took a short step and pushed the gun out of his ribs. Boyd began to struggle with defendant. Defendant hit Boyd on the forehead, jaw and shoulder several times. They fell to the floor during their struggle and Boyd saw an object fly away.

Boyd further testified that as he and defendant continued to struggle, a man stepped out of the crowd pointing a .357 magnum at defendant. Boyd wrestled defendant to the ground, handcuffed him and held him in a corner of the room until the police arrived. Boyd testified that he was injured from being hit with the gun.

Detective James Capesius testified that he spoke with Boyd on February 6, 1989. He noticed a bruise and swelling on the left side of Boyd’s head. He also testified that the gun was in the same condition at trial as it was on the day of the incident.

Officer James Gibson testified that on February 6, 1989, he responded to a simulcast on the radio that a man had a gun at the location of the bill payment center. When Gibson arrived at the center, he saw that Boyd had defendant in custody. Gibson spoke with Boyd, but not with defendant. He removed defendant from the center.

Gibson identified the weapon that was recovered from the scene as a flintlock-type, cap-and-barrel type pistol with the barrel missing. According to Gibson, the gun could still be fired without the barrel, but the shot would not be accurate. Gibson did not have a chance to search the area for the missing barrel.

Jessie Jones testified that he was at the bill payment center on February 6, 1989, at approximately 11 a.m. Jones stood sideways about six feet from the door. He saw defendant enter the center wearing a long coat, with a long beard and a big smile. When Jones turned around, defendant was at Boyd. Jones saw a gun in defendant’s hand when Boyd and defendant started “tussling.” Jones testified that he saw defendant hit Boyd with the gun and saw him put the gun in Boyd’s rib cage.

James Randle testified for defendant that when Randle was at the bill payment center on February 6, 1989, he saw Boyd draw a gun from underneath his coat. He saw Boyd and defendant “tussling” and then Randle saw an unidentified man holding a .357 magnum on defendant while Boyd handcuffed defendant. Randle was familiar with defendant from the neighborhood, but did not tell the police what he saw.

Defendant testified that he worked for the Chicago Board of Education as a substitute teacher. He went to the bill payment center on February 6, 1989, to inquire about phone service for his new apartment. He had neither money, credit cards nor checks with him. Defendant entered the center and walked over to Boyd and asked him if he could get new phone service. Boyd ignored him, so he repeated his question in a louder voice. Boyd called him an “asshole” and made a motion to his side and pushed defendant. After they began to struggle, Boyd pulled out a gun. Defendant was subdued and later arrested by the police.

Dr. Roosevelt Brasser, the coordinator of the Bureau of Employment Eligibility for the Chicago Board of Education (the Board), testified that defendant was not a substitute teacher. He said that defendant did not work for the Board because his teaching license had expired on August 31, 1989. He also testified that defendant must wait a year before his license could be reissued because defendant canceled his teaching permit and withdrew his pension contributions. Defendant reapplied for his teaching permit prior to trial.

Defendant initially contends that the State failed to prove him guilty beyond a reasonable doubt of aggravated unlawful restraint. He argues that since the jury found him not guilty of attempted armed robbery and attempted robbery, it is improbable and contrary to human experience for him to be guilty of aggravated unlawful restraint. He claims that his acquittal of the other charges means he had no motive for holding Boyd.

Contrary to what defendant argues, motive is not an element of the offense of aggravated unlawful restraint. The jury was not required to find that defendant had a reason to detain Boyd. It was sufficient that while using a deadly weapon, defendant detained the victim without legal authority. If the jury’s verdicts were inconsistent, “reversal would not be warranted since such inconsistency may simply have been the result of the jury’s free exercise of its historic power of lenity.” People v. Harris (1982), 104 Ill. App. 3d 833, 840, 433 N.E.2d 343.

Defendant also maintains that reasonable doubt was created because of inconsistencies in the State’s case. He contends that Detective Capesius’ contradiction of Boyd’s claimed injuries creates reasonable doubt. Detective Capesius testified that when he saw Boyd, Boyd had a bruise on his head and some swelling. Boyd testified that he had knots on his head, blood in two or three places on the top of his head and blood behind the ear.

A complainant’s testimony does not have to be unimpeached, uncontradicted, crystal clear or perfect to be clear and convincing. (People v. Douglas (1989), 183 Ill. App. 3d 241, 251, 538 N.E.2d 1335, citing People v. Findlay (1988), 177 Ill. App. 3d 903, 532 N.E.2d 1035.) Complainant’s story may be clear and convincing as long as the discrepancies do not detract from the reasonableness of his story as a whole. (Douglas, 183 Ill. App. 3d at 252.) Even though Detective Capesius’ description of Boyd’s injuries differs from Boyd’s, the inconsistencies do not detract from the reasonableness of Boyd’s story as a whole.

Defendant further argues that reasonable doubt exists because of inconsistencies in Jones’ testimony regarding how far Boyd stood from the door when defendant approached Boyd. It was Boyd’s testimony that he stood approximately 10 to 15 feet from the door. Jones testified that Boyd stood two to three feet from the door. Defendant maintains that the inconsistencies lend doubt to Jones’ credibility. The assessment of the credibility of witnesses is for the jury to weigh. (People v. Williams (1982), 93 Ill. 2d 309, 315, 444 N.E.2d 136.) A reviewing court will not reverse a criminal conviction unless the evidence is so improbable as to raise a reasonable doubt of guilt. (People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313, citing People v. Stringer (1972), 52 Ill. 2d 564, 568, 289 N.E.2d 631.) In the instant case, Jones’ testimony, including its inconsistencies, is not so improbable as to raise a reasonable doubt of guilt.

The relevant question on review, when faced with a challenge to the sufficiency of the proof, “is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 453.

Aggravated unlawful restraint results when a person knowingly, without legal authority, detains another while using a deadly weapon. (Ill. Rev. Stat. 1989, ch. 38, par. 10—3.1.) Proof of defendant’s seizure and detention of the victim with a gun and without legal authority is sufficient to establish guilt of aggravated unlawful restraint. Boyd testified that defendant held him while using a pistol. In People v. Algarin (1990), 200 Ill. App. 3d 740, 751, 558 N.E.2d 457, defendant grabbed his child and pulled his knife from his waistband. The appellate court concluded that the circumstances clearly supported the jury’s conviction of defendant for aggravated unlawful restraint. Similarly, the evidence in the case at bar clearly supports defendant’s conviction for aggravated unlawful restraint.

Defendant’s next contention is that the trial court erred in not allowing him to perfect impeachment of Jones. During direct examination, Jones testified that he did not see defendant speak to Boyd at the payment center. On cross-examination, Jones testified that he did not remember telling a police officer that he saw defendant say something to Boyd after approaching him.

Defendant did not call the police officer as a witness in order to perfect the impeachment of Jones. After the close of the evidence, the State moved to strike the defense questions of Jones on the alleged conversation based on defense counsel’s failure to perfect impeachment. Defendant moved to reopen the proofs and recall the policeman, who had already left the courtroom. The trial court denied defendant’s motion and struck the cross-examination, telling defense counsel that it was his obligation to have brought the officer in. Defendant contends that this was reversible error.

“It is in the sound discretion of the trial court whether a case may be [rejopened for further evidence *** [and] this discretion will not be interfered with except where it is clearly abused.” People v. Cross (1968), 40 Ill. 2d 85, 90, 237 N.E.2d 437.

“In considering a motion to reopen proofs, a trial court should take into account various factors, including the existence of an excuse for the failure to introduce the evidence at trial, e.g., whether it was inadvertence or calculated risk; whether the adverse party will be surprised or unfairly prejudiced by the new evidence; whether the evidence is of utmost importance to the movant’s case; and whether there are the most cogent reasons to deny the request.” Hollembaeck v. Dominick’s Finer Foods, Inc. (1985), 137 Ill. App. 3d 773, 778, 484 N.E.2d 1237.

In the case at bar, defense counsel did not present an excuse for his failure to recall a police officer to impeach Jones. Jones’ testimony regarding the alleged conversation is not of the utmost importance to defendant’s case. There is no dispute as to whether defendant said anything to Boyd. Boyd testified that defendant said something to him, but that he could not hear him.

Defendant relies on People v. Cobb (1983), 97 Ill. 2d 465, 455 N.E.2d 31, and People v. Gray (1991), 209 Ill. App. 3d 407, 568 N.E.2d 219, to support his position. The instant case is clearly distinguishable from Cobb and Gray because in those cases the defendants sought continuances to recall witnesses so that they could lay proper foundations for impeaching. In the case at bar, both sides rested and defendant sought leave to reopen his case. The trial court did not err in refusing to allow defendant to reopen his case.

Defendant’s last contention is that the State introduced evidence that violated his fifth amendment right to remain silent and denied him due process of law in violation of the fourteenth amendment. The defendant refers to questions that the State asked Officer Gibson, who testified to what happened once he arrived on the scene. The following line of questioning took place:

“MR. FEE RICK [Assistant State’s Attorney]: How was Mr. Boyd keeping Mr. Watkins in custody?
A. He had him restrained with handcuffs.
Q. And when you arrived, did you have a conversation with anyone?
A. I approached Mr. Boyd. I recognized him immediately as being a security officer. I approached him and asked him what was going on.
Q. At that time did you have a conversation with him?
A. Yes, I did.
Q. Did you ever have a conversation with the defendant, Mr. Watkins?
A. No, I did not.”

Defendant contends that his constitutional rights were violated because it is improper for the State to introduce evidence of a defendant’s post-arrest silence whether he has been given Miranda warnings or not. (Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240; People v. Beller (1979), 74 Ill. 2d 514, 386 N.E.2d 857.) Defendant in Doyle maintained for the first time at trial that he was framed. The prosecutor tried to impeach that defendant by asking him why he failed to tell the police that he was framed when he was arrested. The State argued that defendant’s silence at his arrest gave rise to an inference that the frame-up story was fabricated. The Court rejected the State’s position, holding that it was fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently given at trial. (Doyle, 426 U.S. at 618, 49 L. Ed. 2d at 98, 96 S. Ct. at 2245.) In Better, the Illinois Supreme Court held that prosecutorial comments on that defendant’s failure to offer his exculpatory explanation at the time of his arrest was error. Beller, 74 Ill. 2d at 525.

In this case, there' is no evidence that Officer Gibson asked defendant questions and that he refused to answer. The record does not reflect that defendant made statements upon his arrest and subsequently gave an exculpatory explanation at trial. Contrary to defendant’s claim, his fifth and fourteenth amendment rights were not violated.

For the foregoing reasons, the judgment of the circuit court is affirmed.

Affirmed.

SCARIANO and DiVITO, JJ., concur.