author: JUSTICE GOLDENHERSH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THERMON HOWARD SMITH, Defendant-Appellant.
    Fifth District
    No. 5—89—0322
    Opinion filed December 31,1992.
    Rehearing denied March 17,1993.

      Thermon Smith, of Joliet, appellant pro se.

    Keith Jensen, Special Prosecutor, of Granite City (Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

After a jury trial, defendant, Thermon Howard Smith, was found guilty of the murders of Alvin Autery and Mary Irwin and also on two counts of home invasion. The jury subsequently found defendant eligible for the death penalty, but the State’s Attorney later withdrew his request for its imposition. Accordingly, defendant was sentenced to concurrent terms of natural life in the Department of Corrections without the possibility of parole on the murder convictions and concurrent 30-year prison terms for the two counts of home invasion. In this cause, defendant raises a number of issues: (1) whether defendant was proven guilty of murder and home invasion beyond a reasonable doubt; (2) whether the trial court committed reversible error in allowing hearsay evidence presented by James Bizaillon which indicated that defendant set up a drug deal on the day of the murders; (3) whether the trial court erred in requiring defendant to try on a glove found at the murder scene; (4) whether it was reversible error for the prosecutor to cross-examine defendant concerning his prior convictions rather than to impeach defendant by introducing certified copies of defendant’s previous convictions; and (5) whether defendant’s convictions and sentences for home invasion are lesser-included offenses of the murders for which defendant was convicted. In addition to these five issues raised in the brief filed by the appellate defender, defendant has filed his own pro se brief in which he addresses additional alleged errors not raised by the appellate defender. Specifically, defendant contends that the trial court committed plain error when it permitted the prosecutor to ask questions of the jurors on voir dire which informed them that defendant was in the penitentiary system at the time the instant charges were brought. Defendant further contends that the trial court abused its discretion when it allowed the State to introduce into evidence a large butcher knife as the alleged murder weapon. Finally, defendant contends he was denied effective assistance of counsel.

The parties are in general agreement as to the following facts. On February 5, 1987, defendant was indicted for four counts of murder, two counts of felony murder in violation of section 9 — 1(a)(3) of the Criminal Code of 1961 (the Code) (Ill. Rev. Stat. 1985, ch. 38, par. 9— l(aX3)), and two counts of murder in violation of section 9 — 1(a)(1) of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(a)(1)) involving two victims, Alvin Autery, a 39-year-old retarded male, and Mary Irwin, a 41-year-old retarded female. The two victims lived together at 620 Olmstead in Alton. Defendant was also charged -with two counts of home invasion under section 12 — 11(a)(2) of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 12-ll(a)(2)).

At the time defendant was charged, and at the time of trial, he was serving time in the Centraba Correctional Center on an unrelated felony. The case went to trial on September 20, 1988. The State presented evidence that the victims were murdered in their home. The victims were found by caseworkers for the Retarded Association on July 1, 1986. Both victims had multiple stab and blunt-trauma wounds and had bled to death. Their bodies had already begun to decompose and had maggots on them. A bent kitchen knife, a broken fan, and a damaged radio/cassette player, with hair and blood on it, all of which could have caused some of the victims’ blunt-trauma injury, were found at the scene. A video cassette recorder (VCR) was found by the back door of the victims’ home, and a glove with blood on it was found in shrubbery at the rear of the victims’ home. The only fingerprint found at the scene belonged to Alvin Autery. A butcher knife with blood on it was found in a vacant lot approximately four blocks or more from the victims’ residence on July 23, 1986. Tests performed on the blood found on the glove and knife were inconclusive. The crime lab was unable to determine the type of blood on those articles or even if it was human blood.

The State presented three witnesses who provided testimony connecting defendant to the murders in question because of statements made by defendant to them or overheard by them. Michael Carter, who knew defendant for approximately 20 years, testified that he was at an all-day/all-night barbecue at his aunt’s home at 1319 Garden Street in Alton sometime near the end of June. At approximately 5 a.m., he saw defendant walking down the street toward him. According to Michael, defendant had blood on his shirt, on the back of his ear, and on both of his thighs. Defendant told Michael that he had killed some people. Michael testified that his uncle, Charles Carter, was standing nearby when he talked to defendant. Michael went with defendant to defendant’s mother’s home, where defendant planned to borrow his mother’s car. Michael told defendant to wash the blood off himself and his clothes. At defendant’s mother’s house, defendant gave details of how he killed the victims. He told Michael he stabbed one with a knife and killed one with a fan. Defendant did not tell Michael who else was with him at the time of the murders.

Defendant told Michael that he could get a VCR and asked Michael if he knew anyone who would want to buy it. Apparently, around this time, Michael was “fencing” stolen property. Michael testified that he did not want to get involved in a murder and, therefore, refused to assist defendant. Michael did not initially tell the police about what he observed or heard because he was afraid for himself and his family. Later, Michael told his parents about the incident, and his parents convinced him to go to the police. On December 15, 1986, Michael gave a statement to the police concerning defendant’s involvement in the instant offenses. Michael testified he also talked to the police about the murders in the summer of 1986.

At the time of trial, Michael was attending Southern Illinois University at Carbondale and was enrolled in its mortuary program. He planned to become a mortician and go to work for a family member who owned a mortuary in Tennessee. Michael had two prior felony convictions for retail theft. He also admitted that he was a recovering drug addict and an alcoholic. Michael admitted that in June 1986, he was drinking heavily.

Charles Carter, a union painter at the Alton Lock and Dam, testified that he was attending a barbecue when defendant stopped by to talk to his nephew, Michael. Charles did not know defendant but Michael told him who he was. Charles testified that Michael pointed defendant out to him on the day of trial. According to Charles, when defendant arrived at the barbecue, he was sweaty and looked like he had been running and in a fight. Defendant had blood on his chest and arm. Charles overheard parts of the conversation between defendant and Michael. He specifically heard defendant say that he had “offed a couple of people.” Charles also heard defendant say he hit someone with a lamp or ashtray. Charles made a statement to the police in the summer of 1986. He made a written statement on December 12, 1986. In his statement, Charles said that he did not know defendant, did not want to know defendant, and did not remember what defendant said.

Ronald Jackson testified about conversations he had with defendant while both were incarcerated at the Centraba Correctional Center during which time defendant made certain admissions about the murders. Jackson had prior felony convictions for forgery, deceptive practice and theft. At the time of his conversations with defendant, Jackson was serving a two-year prison sentence. Jackson has a bachelor’s degree from Southern Illinois University. During his incarceration at the Centralia Correctional Center, Jackson was known as a “jailhouse lawyer” and assisted inmates with legal problems. Jackson first spoke with defendant in either January or February 1987. Defendant initially asked in the hypothetical whether a person could stop the State’s Attorney and the Department of Corrections from asking other inmates about whether that person had told them about his involvement in a crime. Jackson told defendant that he did not think there was anything that could be done. Defendant then explained to Jackson that he and a friend named Ernest Perry, who was in the Madison County jail, had been involved in a murder. Defendant stated that the police did not have any evidence against them but later stated that he had heard that Ernest had been talking to the police about the murders. Defendant told Jackson that he had his cousin tell Ernest to keep his mouth shut.

According to Jackson, defendant discussed the details of the murders with him. Defendant told Jackson that he and Ernest Perry had gone into a retarded family’s home in order to steal some things so that they could sell them and then use the proceeds to buy drugs. A drug deal had been set up by Ernest’s sister, Lucille Perry, who had since died of cancer. While in the victims’ house, defendant and Ernest were discovered by the victims. The victims were hit in the head and stabbed with a knife. Afterward, defendant threw away his shirt because there was blood on it. Defendant said it could not be recovered. Defendant also told Jackson he had disposed of the murder weapon. Defendant was concerned whether Lucille Perry’s testimony could be used now that she was dead.

Jackson testified that all the other inmates he had assisted had already been tried and were serving their sentences. Jackson had no qualms about assisting someone who felt he was unjustly imprisoned. However, in the instant situation, Jackson felt morally obligated to write the police about defendant’s admissions because defendant had not been charged with the murders and the victims were handicapped. Jackson wrote a letter to the Alton police outlining what defendant told him. After the Alton police received Jackson’s letter, they arranged to meet with him in Metropolis, where Jackson gave them additional details about the murders based upon his conversations with defendant. About a week after his meeting with the Alton police, Jackson was confronted by defendant and two “Metro” gang members. Jackson was concerned about his safety and called the Alton police. Jackson was taken out of the penitentiary the next day and finished serving his sentence at the Madison County jail. Jackson was released on June 26, 1987. He did not receive a reduced sentence or any other consideration for the information he provided the Alton police or for his testimony at trial against defendant. Jackson admitted that his letters to the Alton police did not provide much detail about the killings, but he explained that this was because he feared his letters might be intercepted by someone in the penitentiary. Jackson stated that he gave full details to the police during his interviews.

Additional witnesses for the State included Lindell Pyatt, an Alton police officer, who testified that as standard practice the Alton police do not make public some information, such as the way in which victims were killed. In the instant case, the Alton police did not disclose that the victims were hit with a fan or a radio. Officer Pyatt could not be certain whether such information was released after Ernest Perry was charged on January 10, 1987.

Defendant testified on his own behalf that he did not know the victims and did not kill them. According to defendant, he knew Karen McGuire, also known as Karen Robinson, who lived at 621 Olmstead, directly across the street from the victims. Defendant testified that he only saw Ms. McGuire three to four times during all of 1986. Defendant stated that on the weekend of the murders, he was home the entire weekend, from Friday, June 27, through Sunday, June 29, because he was sick with the flu. Defendant testified that he knew Michael Carter but was not a friend. Defendant denied seeing Carter on June 28 or 29, 1986. Defendant also denied telling Michael Carter that he killed some people.

Defendant admitted that he talked with Ronald Jackson in February 1987. Defendant was concerned because the authorities were asking other inmates about defendant’s involvement in the murders and were offering a reduction in their sentences or a $10,000 reward for information concerning defendant’s involvement in the instant crimes. Defendant was concerned some inmates might lie to the police about defendant’s involvement in order to receive the reward or a reduction in their sentence. Defendant denied committing the murders and denied ever making such admissions to Jackson. Defendant testified that he told Jackson he had been charged with the murders because Michael Carter, who was a drug addict, told the police he had seen defendant with blood on his shirt. Defendant knew what Michael Carter had told the police because the police showed defendant a videotape of Michael Carter’s statements. Defendant surmised that Jackson could have learned of the details of the murders from television newscasts aired after Ernest Perry and defendant himself were charged with the crimes. Ernest Perry was charged on January 10, 1987, and defendant was charged on January 29, 1987.

Defendant testified he occasionally went to the Perry residence during the summer of 1986, even though he and Lucille Perry were no longer dating. On July 1, 1986, defendant saw police vehicles in the area of the murders and read about the murders in the newspaper and saw television news reports. Defendant denied that he told the police that he first learned about the murders from Karen McGuire, also known as Karen Robinson, or her son, Christopher.

During cross-examination, defendant was asked if he had ever previously tried to hide his fingerprints. Defendant denied ever doing so. The prosecutor then asked if defendant had been convicted in four previous cases, namely, Nos. 79 — CF—362, 81 — CF—239, 83 — CF—7, and 87 — CF—735. Defendant acknowledged these convictions. The prosecutor asked if, during questioning in one of these previous cases, defendant told the Alton police he wore socks over his hands to conceal his fingerprints. Defendant stated he jokingly told the police this after they found a pair of socks in his pockets. Later, on re-cross, the prosecutor asked defendant to try on the glove which was found at the victim’s home in some shrubbery behind the residence. Over defendant’s objection, defendant was ordered to try on the glove in front of the jury. During the State’s closing argument, the prosecutor commented on how the glove fit defendant’s hand.

Defendant’s mother, Annie Smith, testified defendant had the flu on the weekend of June 27 through 29, 1986. As far as she knew, defendant did not leave the house the entire weekend. Two of defendant’s sisters, Shirley Beard and Ada Smith, corroborated defendant’s alibi that he was sick the entire weekend of June 27 through 29, 1986, and as far as they knew, defendant had not left the house.

Karen McGuire, also known as Karen Robinson, testified as a rebuttal witness for the State. Karen Robinson’s mother and defendant’s mother were best friends prior to her mother’s death. Robinson lives at 621 Olmstead, directly across from the victims’ house. She testified defendant stopped by to see her approximately two to three times per week during the summer of 1986. She also testified that she did not tell defendant about the victims’ murders and that during the summer of 1986 she did not have a telephone.

Officer Ventimiglia of the Alton police department testified on rebuttal. He stated that defendant told him he heard about the murders when his mother received a telephone call from either Karen Robinson or her son, Christopher. Officer Pyatt also testified on rebuttal. According to Pyatt, defendant told him that he stayed home the entire weekend of June 27 through 29, 1986, because he had no money. Pyatt stated that the police never offered a $10,000 reward or a reduction in sentence to inmates interviewed at the Centralia Correctional Center regarding the instant murders.

James Bizaillon testified in rebuttal for the State. Mr. Bizaillon owns an auto body shop and used car lot located across the street from the Perry residence. According to Bizaillon, Ernest Perry and defendant came to his shop to use his telephone on Saturday, June 28, 1986. Bizaillon did not overhear the conversation, but one of his employees did. The employee relayed to Bizaillon what was being discussed, and as a result, Bizaillon kicked Perry and defendant out of his shop. Bizaillon testified that the reason defendant and Perry were asked to leave was that he did not let anyone make drug deals on his telephone. In surrebuttal, defendant denied ever being in Bizaillon’s place of business or ever being kicked out of it.

The jury ultimately found defendant guilty on all counts and found defendant eligible for the death penalty. The State’s Attorney thereafter decided not to seek the death penalty. Defendant was later sentenced as previously discussed. Motions for a new trial were filed and later denied. The appellate defender was appointed to represent defendant on appeal. In addition, defendant filed a pro se brief on his own behalf.

I

The first issue we are asked to address is whether defendant was proven guilty of murder and home invasion beyond a reasonable doubt. Defendant argues that he was not because the only evidence to connect him to the crime was the impeached testimony of three witnesses who claim that defendant admitted to them that he committed the murders. Defendant points out that Michael Carter had a history of dishonesty, that he waited nearly six months to come forward, and that at the time he did come forward, he had pending charges against him. Additionally, Charles Carter waited several months before going to the police and, at times, stated that he did not overhear the conversation between defendant and his nephew, Michael. Finally, Ronald Jackson was a convicted felon serving time, which, according to defendant, makes his testimony totally incredible and beyond belief. The State replies that the testimony of Michael Carter, Charles Carter, and Ronald Jackson, to whom defendant made admissions of guilt, along with the inconsistencies between defendant’s own testimony and that of the defense witnesses, establishes defendant’s guilt beyond a reasonable doubt. We agree.

The resolution of defendant’s guilt or innocence depends on the credibility of the witnesses and the weight given to their testimony. In general, the determination of issues is left to the trier of fact, in this case the jury. (People v. Ellis (1978), 74 Ill. 2d 489, 496, 384 N.E.2d 331, 334.) Only if we find the evidence to be so improbable or unsatisfactory as to raise a serious doubt as to defendant’s guilt should we reverse the conviction. (People v. Lindsey (1979), 73 Ill. App. 3d 436, 447, 392 N.E.2d 278, 286.) The standard of review in a case challenging the sufficiency of evidence has been set forth by our supreme court in People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267:

“When presented with a challenge to the sufficiency of the evidence, it is not the function of this court to retry the defendant. As the United States Supreme Court observed in Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789, ‘the relevant question 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.’ The court went on to note that, ‘[o]nce a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.’ (Emphasis in original.) 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.” (106 Ill. 2d at 261, 478 N.E.2d at 277.)

With these tenets in mind, we conclude that there is sufficient evidence to support the jury’s verdict.

In the instant case, the jury was well aware of the weaknesses in the State’s case. Michael Carter was a convicted felon who was an alcoholic and had previously used drugs. He was attending an all-night party and had his conversation with defendant at 4 or 5 a.m. Michael Carter did not come forward until nearly six months after the crime. However, six months later, Michael Carter was a different man. He had sought help for his addictions and, at the time of trial, had been attending mortuary school for IV2 years. The law is clear that a key witness’ testimony is not rendered incredible by prior drug usage. (People v. Assenato (1991), 224 Ill. App. 3d 96, 102, 586 N.E.2d 445, 489.) Michael Carter testified defendant told him he had killed the victims with a knife and a fan, two of three instruments found at the scene. Expert testimony stated these instruments could have caused the victims’ injuries. There was no way for Michael Carter to know of these “weapons” unless defendant told him of their existence. The jury apparently chose to believe Michael Carter’s testimony, and after reviewing it ourselves, we cannot say the jury’s conclusion was unreasonable.

As for Michael Carter’s uncle, it is clear from his testimony that he had some difficulties identifying defendant, as he did not know him prior to seeing him talking to his nephew early in the morning on Sunday, June 29, 1986. His version of what he heard or did not hear changed over time, but it is clear he saw defendant in a disheveled state in the early morning hours of June 29, 1986, a time defendant claims to have been home sick with the flu. Moreover, at trial Charles Carter testified he clearly heard defendant say he had “offed a couple of people.”

Finally, Ronald Jackson was a convicted felon serving two years in the Centralia Correctional Center for deceptive practice. Conviction of theft involves dishonesty and is admissible to impeach the credibility of a witness. (People v. Walker (1987), 157 Ill. App. 3d 133, 510 N.E.2d 29.) Therefore, Jackson’s testimony may be viewed with suspicion but cannot be said to be per se incredible. Jackson did not receive a reduced sentence or any compensation for his testimony. The jury was aware of Jackson’s past yet found him credible.

On the other hand, defendant’s alibi that he was home sick with the flu the entire weekend of June 27 through 29, 1986, was contradicted by several witnesses. First, defendant told the Alton police that he did not leave his home the entire weekend of the murders because he had no money. Second, defendant’s alibi was contradicted by testimony of the State’s three witnesses previously discussed. Third, a totally unbiased and credible witness, James Bizaillon, who owned an auto body shop and a used car dealership across the street from the codefendant, contradicted defendant’s alibi. Bizaillon testified that he saw both Ernest Perry and defendant making a telephone call on the afternoon of Saturday, June 28, 1986. Defendant took the stand on surrebuttal and denied ever having been in Bizaillon’s place of business. The impact of alibi testimony, uncontradicted or not, goes to the credibility of the witness, and that determination is reserved for the trier of fact and one for which we will not substitute our judgment. (People v. Calhoun (1984), 126 Ill. App. 3d 727, 738, 467 N.E.2d 1037, 1044-45.) In addition, the jury heard testimony from Karen McGuire/ Robinson, who testified that defendant visited her home two to three times per week during the summer of 1986. Ms. Robinson lived directly across the street from the victims. Her testimony contradicted that of defendant, who testified that he had only been to Ms. Robinson’s home three to four times during the entire year of 1986 and that he had never seen the victims.

In a case such as this, where the conviction was based upon circumstantial evidence, it is necessary that the evidence be of a conclusive nature and produce with reasonable and moral certainty the conclusion that defendant committed the crime. (People v. Armstrong (1983), 111 Ill. App. 3d 471, 475, 444 N.E.2d 276, 280.) After reviewing the record as a whole, and looking at the evidence in the light most favorable to the prosecution, we cannot say that proof is so unsatisfactory that a reasonable doubt appears.

II

The second issue we are asked to consider is whether the trial court committed reversible error when it allowed hearsay evidence, presented by James Bizaillon, which indicated that defendant set up a drug deal on the day of the murders. Defendant argues this was reversible error because the hearsay evidence corroborated the testimony of Ronald Jackson, who testified that defendant told him that he and Ernest Perry went to the victims’ residence to steal property so that they could sell the property and then use the proceeds to buy drugs. Defendant argues that this hearsay evidence denied him his right to a fair trial and therefore he is entitled to a new trial. The State responds that the testimony of James Bizaillon was not hearsay since it was not offered to prove the truth of the matter asserted but rather was offered to impeach the testimony of defendant that he was home the entire weekend of June 27 through 29, 1986. Moreover, the State asserts that any error was waived because defendant failed to object to the statement at the time it was made.

The testimony at issue appears in the record as follows:

“[KEITH JENSEN, Prosecutor] Q. Tell us what happened on that Saturday, if you would, please.
[JAMES BIZAILLON, witness] A. I was working in the rear, and I looked up and seen Ernest Perry and Thermon Smith there. I figured Ernest was using the phone. We kind of had an agreement, they could use the phone. I didn’t bother them, they didn’t bother me.
Q. About what time was this?
A. Somewhere around 12:30,1:00.
Q. Were your other employees there at that time?
A. Yes.
Q. Who was there?
A. A guy by the name of Dan Murphy, and Scott Williams.
MR. MATOESIAN [defense attorney]: I’m sorry, the last name was what?
A. Scott Williams.
MR. MATOESIAN: Scott Williams?
A. Yes, sir.
MR. JENSEN: Who used the phone?
A. I believe Ernest did, but when they came over to get me, Thermon was on the phone. He was calling somebody—
MR. MATOESIAN: I will object to what he said. He didn’t see—
A. One of my employees came over and got me and told me that they was talking, what the guy said—
MR. MATOESIAN: I object.
MR. JENSEN: Q. Did your employee come and tell you something at that time?
A. Yes, sir.
Q. And because of what he told you, what did you do?
A. I kicked them out of my shop, told them not to come back.
Q. When you say you kicked them out, who did you kick out?
A. I kicked Ernest and Thermon Smith out.
Q. And are you certain that was the Saturday, the weekend of the murders of Alvin Autery and Mary Irwin?
A. Yes, sir.
Q. Do the Perrys still live across from your—
A. No, sir.
Q. No further questions.”

On redirect examination, the prosecutor again asked questions about why Ernest Perry and defendant were asked to leave the premises:

“REDIRECT EXAMINATION BY MR. JENSEN:
MR. JENSEN: What did you tell Thermon Smith when you told him to leave?
THE WITNESS: I told him, don’t come back, I didn’t need that kind of attention around my business.
MR. JENSEN: Q. When you say that kind of attention, why did you kick him out at that time?
MR. MATOESIAN: Your Honor, I’m going to object, unless he knows firsthand.
THE COURT: Sustained.
MR. JENSEN: Q. What did you tell him as to whether he could use that phone again?
A. I told him I did not allow anybody to make dope deals on my phone.
Q. Did you tell Thermon Smith you didn’t allow it?
A. Yes, sir.
Q. Did you use the word drug deals when you talked with him?
A. I believe that was the phrase.
Q. No further questions.”

The record does not support the State’s position that the statement was nonhearsay because it was offered only to show that defendant was not home the entire weekend of June 26 through 28, 1986. The State made this point on direct examination and was prohibited by objections from defense counsel from delving into the content of the phone conversation. Nevertheless, on redirect, the prosecutor was able to elicit the content of the conversation, which the witness did not overhear. The content of the conversation concerned a drug deal, which corroborated the motive for the crime suggested by Ronald Jackson as told to him by defendant. We agree with defendant that this was inadmissible hearsay.

While we agree with defendant that allowing James Bizaillon to testify that the conversation concerned a drug deal constituted an erroneous admission of hearsay, we do not agree that this error requires a reversal of defendant’s conviction. Where there is no reasonable possibility that a jury would have acquitted the defendant had the hearsay evidence been excluded, the admission of such evidence is harmless error. People v. Hall (1980), 90 Ill. App. 3d 1073, 1077, 414 N.E.2d 201, 204.

In the instant case, the most damaging part of Bizaillon’s testimony was that defendant was seen outside of his home with the codefendant on Saturday, June 27, 1986, a day which defendant claims to have never left his home. Defendant even took the stand on surrebuttal and denied ever being in Mr. Bizaillon’s place of business. In light of this, and in light of the other evidence previously outlined, we do not believe the jury’s verdict would have been different had the hearsay been excluded; therefore, we find its admission harmless.

Ill

The third issue we are asked to consider is whether the trial court erred in requiring defendant to try on a glove found at the murder scene. Defendant argues that he was prejudiced during re-cross-examination because the trial court allowed, over his objection, the State’s request that defendant try on a glove found at the crime scene. Additionally, defendant contends the demonstration was beyond the scope of redirect and should not have been allowed. The State responds that the demonstration was probative and, even if it was prejudicial, any error caused by the demonstration was harmless. We agree.

The test of admissibility of evidence is whether it fairly tends to prove the particular offense charged, and any circumstances may be put into evidence which tend to make the proposition at issue more or less probable. (People v. Peter (1973), 55 Ill. 2d 443, 459, 303 N.E.2d 398, 408.) Physical evidence may be introduced where there is proof to connect the evidence to defendant and to the crime. People v. Smith (1974), 18 Ill. App. 3d 859, 867, 310 N.E.2d 734, 740; People v. King (1973), 10 Ill. App. 3d 847, 294 N.E.2d 300.

In the case at bar, the glove was found at the rear of the victims’ home with blood on it. Defendant does not question the glove’s admissibility but rather the court’s decision granting the State’s request to require defendant to try on the glove. The purpose of demonstrative evidence is not necessarily to prove an issue in the case but to aid the trier of fact in interpreting, understanding, and weighing other evidence in testimony. (People v. Navis (1974), 24 Ill. App. 3d 842, 321 N.E.2d 500.) The general rule is that a court has reasonable discretion in admitting or rejecting exhibits or in permitting demonstrations, and exercise of that discretion will not be interfered with unless there has been an abuse to prejudice defendant. 24 Ill. App. 3d at 848, 321 N.E.2d at 505.

Here, no fingerprints were found at the scene that did not belong to the victims. Therefore, the perpetrator(s) most likely wore something to cover fingerprints. The bloody glove could have been used in the commission of this crime, and it was up to the jury to determine its weight. The State took a calculated risk in asking defendant to try on the glove. It may not have fit. Additionally, defendant was free to argue, as he does here, that the fact that the glove fit was of no probative value because it was likely to fit thousands of others. Argument based upon the evidence presented at trial and legitimate inferences therefrom which may be deduced from that evidence are within the boundaries of proper debate. (People v. Reyes (1981), 102 Ill. App. 3d 820, 429 N.E.2d 1277.) We find no merit in defendant’s argument that he was so severely prejudiced by being required to try on the glove that he deserves a new trial.

We also find no merit in defendant’s contention that the demonstration was beyond the scope of redirect examination. The decision to limit the scope of re-cross-examination is within the discretion of the trial court, and such a decision will not be reversible error unless it involves a clear abuse of discretion resulting in manifest prejudice to defendant. (People v. Blackwell (1979), 76 Ill. App. 3d 371, 378, 394 N.E.2d 1329, 1335.) As the State points out, defendant denied committing the crime in question on redirect, and we believe the demonstration was a proper impeachment tactic. We do not believe defendant suffered any undue prejudice as the result of the trial court's action in allowing the State’s request to have defendant try on the glove found at the murder scene.

IV

The next issue we are asked to address is whether it was reversible error for the prosecutor to cross-examine defendant concerning his prior convictions rather than to impeach defendant by introducing certified copies of defendant’s previous convictions.

The rule is clear that impeachment of a defendant should be by means of record of conviction or an authenticated copy. (People v. Madison (1974), 56 Ill. 2d 476, 488, 309 N.E.2d 11, 18.) Cross-examination of a defendant as to a prior conviction is improper where direct examination has not covered the subject. (People v. Adams (1982), 106 Ill. App. 3d 467, 472, 435 N.E.2d 1203, 1207.) However, reversal is not required unless the error has deprived defendant of substantial justice or influenced the determination of his guilt. Madison, 56 Ill. 2d at 488, 309 N.E.2d at 18.

Here, as previously discussed, there was sufficient circumstantial evidence to establish defendant’s guilt. The jury would in any event have learned of defendant’s prior convictions, a proper impeachment tactic. The prosecutor did not belabor the point, asking defendant if he, in fact, had been convicted of four previous felonies. We find that the questions propounded on cross-examination pertaining to defendant’s prior convictions did not constitute reversible error.

V

The fifth issue we must consider is whether defendant’s convictions and sentences for home invasion are lesser-included offenses of the murders of which defendant was convicted. Defendant argues that his convictions and sentences for home invasion must be vacated as they are lesser-included offenses of felony murder. The State responds that the murders and home invasion were separate offenses and that home invasion is not a lesser-included offense of murder.

In People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, our supreme court held “that when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered.” (66 Ill. 2d at 566, 363 N.E.2d at 845.) We agree with our colleagues on the First District Appellate Court that the offenses of murder and home invasion constituted separate and distinct acts permitting the imposition of concurrent sentences. (People v. Amos (1990), 204 Ill. App. 3d 75, 83, 561 N.E.2d 1107, 1114.) We understand defendant’s argument that home invasion is a lesser-included offense of felony murder; however, what defendant fails to consider is that in the instant case, the jury returned general verdicts of guilty against defendant for the murders of Alvin Autery and Mary Irwin. The trial court sentenced defendant to natural life for each of their murders and 30 years’ imprisonment for the offenses of home invasion, the sentences running concurrently. We find the murders and the home invasion offenses to be separate and distinct acts (Amos, 204 Ill. App. 3d at 83, 561 N.E.2d at 1114) and that the trial court did not err in imposing concurrent sentences.

VI

We now address the three additional arguments raised by defendant in his pro se brief. Defendant contends the trial court committed plain error when it permitted the prosecutor to ask questions of jurors on voir dire which informed them that defendant was in the penitentiary system at the time the instant charges were brought. Defendant also objects to the prosecutor’s opening statement which alerted jurors to this fact. Defendant contends there was no legitimate reason for the prosecutor to inform prospective jurors on voir dire and during his opening statement that defendant was in the penitentiary other than to show defendant’s propensity for crime. We disagree.

The prosecutor adequately explained, at the hearing on defendant’s motion for a new trial, his reasons for asking questions on voir dire which alerted prospective jurors to the fact defendant was in the penitentiary at the time the instant charges were filed:

“There were questions in voir dire asked of the Jurors regarding the testimony of a person in the penitentiary. I think that is a legitimate inquiry of potential Jurors to ask if they have any problems with the credibility of a person that has been in the penitentiary.
I also feel that cuts both ways in that if Mr. Smith is attempting to pick a Jury that is favorable to him, he likewise would want to know whether those Jurors are going to automatically disbelieve a person because they have been in the penitentiary or lend any less credibility.
The limited inquiry during voir dire was simply that would they have any preconceived notion or any disqualifying factors as to the credibility of a person simply because he had been in the penitentiary. There was no harping or mention or stressing the fact that Mr. Smith had been in the penitentiary. In fact that was the only way that evidence could be brought about in the fact that this conversation took place inside the Department of Corrections.
There was no prejudice attached, nor was there any mention of the crime that Mr. Smith was in jail for at the time. There was mention of the crime that the witness was in the penitentiary for and that was certainly proper in the voir dire stage.
Likewise, I don’t recall any objection regarding that, nor do I recall any Motion asking that the conversation be elicited without regards to its location or how it came about.
I don’t believe that there were specific remarks regarding the Defendant being incarcerated, with the exception, I do believe a remark was made that they are to judge the credibility of the witnesses the same as they would anyone else, regardless of those witnesses testifying.
The Court made its usual inquiry regarding Jurors and whether or not they felt they could believe the Defendant, whether or not they felt they could follow the burden of proof beyond a reasonable doubt. And if in fact the Defendant chose not to testify would that influence them. And I believe that each and every one of them answered that question in satisfactory form to the Court.”

We agree with the prosecutor that the questions on voir dire concerning whether a prospective juror would automatically disbelieve a person because he was incarcerated cuts both ways. Not only was the prosecutor able to gauge the prospective juror’s response, but so, too, was the defense. After reviewing the record, it is clear that there was no way around the fact that defendant was incarcerated at the time he was charged with the instant offenses. Ronald Jackson’s testimony was central to the State’s case. The State did not unduly prejudice defendant by discussing defendant’s incarceration with prospective jurors or by bringing it up during opening statements. We find no merit in defendant’s argument that it was plain error for this fact to have been disclosed.

The next argument raised by defendant is that the trial court abused its discretion when it allowed the State to introduce into evidence a large butcher knife as the alleged murder weapon. Defendant contends there was no connection between him, the knife, and the crimes charged. We agree.

The test of admissibility of evidence is whether it fairly tends to prove the offense charged, and any circumstances may be put into evidence which tend to make the proposition at issue more or less probable. (People v. Peter (1973), 55 Ill. 2d 443, 303 N.E.2d 398; People v. Nemke (1970), 46 Ill. 2d 49, 263 N.E.2d 97.) Physical evidence may be introduced where there is proof to connect the evidence to defendant and the crime. People v. Smith (1974), 18 Ill. App. 3d 859, 310 N.E.2d 734; People v. King (1973), 10 Ill. App. 3d 847, 294 N.E.2d 300.

In the instant case, a butcher knife was found by a boy who was snake hunting in a vacant lot. Testimony varied as to how far the lot was from the victims’ home, with the closest estimation being some four blocks away. The knife underwent forensic tests at the crime lab. The presence of blood, not visible to the naked eye, was found, but because there was so little blood found, no further tests could be conducted. The pathologist, Dr. Nanduri, testified that the butcher knife or something of a similar nature could have caused the victims’ injuries. Ronald Jackson testified defendant told him he had disposed of the murder weapon. No other evidence was presented connecting the butcher knife to defendant. We find the State did not sufficiently connect the knife to either defendant or the crime; thus, the knife was improperly admitted into evidence. Nevertheless, we do not find the error so grave as to require reversal of defendant’s conviction or to require a new trial. People v. Collins (1980), 85 Ill. App. 3d 1056,407 N.E.2d 871.

The knife was but one weapon introduced as a possible murder weapon. A bent kitchen knife, a radio, and a broken fan found at the scene were also introduced as possible murder weapons. The jury heard evidence concerning the knife and, therefore, knew of its tenuous connection to the instant crimes and defendant. The prosecutor did not dwell on the knife, and we do not believe its admission so prejudiced defendant so as to require a new trial.

The final contention raised by defendant is that he was denied effective assistance of counsel as guaranteed by both the United States and the Illinois Constitutions. U.S. Const., arts. VI, XIV.

In Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, the Supreme Court set the standards to be applied in cases involving specific allegations of ineffective assistance of counsel. Recognizing that it is all too easy to second-guess an attorney’s performance, the Strickland court stated: “[A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance ***.” (466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.) In order to establish ineffective assistance, the defendant must show (1) that counsel’s performance was deficient in that counsel committed errors “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,” and (2) that those errors in fact were prejudicial to his defense. (466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) In the case at bar, we find that the alleged errors of defense counsel do not meet the Strickland standard. On the contrary, the record indicates that defense counsel conducted proper cross-examination of the witnesses, raised numerous objections, adequately presented defendant’s alibi witnesses, and, overall, sought to protect defendant’s interests. Defendant has not shown us that “there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” (Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068-69.) We conclude that defendant failed to establish ineffective assistance of counsel under the Strickland standard.

VII

Admittedly, we have found error below; nevertheless, we find no prejudice because of these errors, either singularly or cumulatively. In our estimation, the errors do not affect the verdict or cast reasonable doubt upon defendant’s guilt. Thus, with no prejudice to defendant, there is no reason to reverse the judgment of conviction. See People v. Collins (1980), 85 Ill. App. 3d 1056, 407 N.E.2d 871.

For the foregoing reasons, the judgments of the circuit court of Madison County are affirmed.

Affirmed.

CHAPMAN, P.J., and WELCH, J., concur.


source: Caselaw Access Project

author: JUSTICE WOODWARD

license: Public Domain

text:
    MONTEREY COAL COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Louis LaFuria et al., Appellees).
    Fourth District (Industrial Commission Division)
    No. 4—91—0902WC
    Opinion filed December 3,1992.
    Rehearing denied March 30,1993.

      L. Robert Mueller, of Livingstone, Mueller, O’Brien & Davlin, P.C., of Springfield, for appellant.
    Harold B. Gulley, Jr., of Raleigh, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

On March 27, 1986, claimant, Louis LaFuria, filed an application for adjustment of claim pursuant to the Workers’ Occupational Diseases Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 172.36 et seq.). Said application alleged that claimant had sustained impairment of his heart and lungs due to his employment with respondent, Monterey Coal Company. On December 11, 1989, this matter was heard by an arbitrator, who subsequently determined that claimant was totally and permanently disabled due to the effects of an occupational disease. A majority of the Industrial Commission (Commission) affirmed the arbitrator’s decision, and the circuit court of Macoupin County confirmed the Commission’s decision. This timely appeal followed.

Respondent raises four issues, namely: (1) whether the Commission erred in finding that claimant had proved disablement under section 1(f) of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 172.36(f)); (2) whether the Commission erred in finding that claimant had coal workers’ pneumoconiosis; (3) whether the Commission erred in finding a causal connection between claimant’s coal workers’ pneumoconiosis and his condition of ill-being; and (4) whether the Commission erred in finding that claimant was permanently and totally disabled.

At the arbitration hearing, claimant testified that he last worked for respondent on August 3, 1983. On said date, he was 65 years old and had worked as a coal miner approximately 37 years for various coal companies, the last of which was respondent. Claimant had worked as a coal shooter, coal driller and mine examiner. He was constantly exposed to and inhaled coal and rock dust. Claimant was last exposed to coal dust on August 3, 1983.

Claimant stated that he would have continued working but for his breathing difficulties. He had first experienced breathing problems eight years prior to his retirement. Working as a mine examiner, a job which required extensive walking, claimant noticed that he had trouble breathing while walking. Claimant’s breathing problems worsened after he retired. As of the arbitration hearing, he could do little physical activity before losing his breath. Claimant had trouble sleeping, often having to get up to gasp for air. Further, claimant had a cough which had worsened over time.

Claimant described numerous physical problems. He had two back surgeries in 1986 and has since walked with a limp. In 1967, claimant had one-half his stomach removed due to ulcers and has undergone prostate surgery. Additionally, he has a prosthetic right eye and has hearing difficulties. Claimant smoked cigarettes for 15 years until the age of 35.

On April 14, 1986, Dr. Parviz Sanjabi examined claimant to evaluate his lungs. In a letter written to claimant’s counsel on the same date, Dr. Sanjabi stated that claimant’s principal complaint was a reduced tolerance to exercise. Claimant related a history of shortness of breath when going up inclines or climbing steps. Claimant had no regular cough or sputum production but did have occasional periods of coughing which produced sputum. A chest X ray indicated mild simple pneumoconiosis and some linear densities bilaterally.

Dr. Saeed Khan testified via an evidence deposition taken on December 7, 1989. Board certified in internal medicine, Dr. Khan estimated that 15% of his practice consists of the care and treatment of coal miners with lung and associated pulmonary diseases. He examined claimant on March 5, 1987. Dr. Khan took claimant’s history, noting complaints of morning cough for the previous eight years and an increased shortness of breath on exertion over the prior three years. Claimant also described coughing and wheezing spells and chest tightness. Claimant told Dr. Khan he was taking medication prescribed by his family physician, which was intended to aid his breathing. In his physical examination of claimant, Dr. Khan observed that he was short of breath even when at rest. The results of pulmonary function studies were consistent with coal workers’ pneumoconiosis, emphysema and restrictive lung disease. Further, the results of blood gas studies were also consistent with coal workers’ pneumoconiosis and emphysema. Chest X rays revealed hypertranslucency on both sides and interstitial pulmonary fibrosis consistent with coal workers’ pneumoconiosis and emphysema. Dr. Khan described coal workers’ pneumoconiosis as “a chronic slowly progressive disease,” which continues to progress even when the person is removed from exposure to coal and rock dust.

Based upon claimant’s history, the physical examination, X ray and test results, Dr. Khan concluded that claimant was “not a suitable candidate to perform any other gainful employment.”

Dr. Ludimere Lenyo testified for claimant in an evidence deposition taken on June 14, 1989. Dr. Lenyo, board certified in internal medicine, examined claimant on April 26, 1988. Dr. Lenyo estimated that 30% of his practice dealt with pulmonary problems. He had extensive experience with coal workers’ pneumoconiosis patients. At the subject examination, claimant described shortness of breath upon exertion which made it impossible to do household chores. He became exhausted by going up an incline for 30 to 40 feet. Claimant also related a history of coughing and sputum production. Dr. Lenyo’s physical examination of claimant revealed an interstitial lung disease, which results in the scarring of the lungs and the substantial limitation in their ability to expand. Pulmonary function studies also revealed interstitial lung disease consistent with claimant’s history and physical examination. A chest X ray taken during the examination revealed a profusion of small irregular opacities in the lower, middle and upper lung zones. Dr. Lenyo concluded that these opacities were caused by exposure to coal dust. He opined that claimant had coal workers’ pneumoconiosis, caused by his employment. Dr. Lenyo described coal workers’ pneumoconiosis as a permanent and incurable condition which gradually worsens over the years. He stated that additional exposure of claimant to coal dust would endanger his health. Further, Dr. Lenyo indicated that claimant’s condition had continued to worsen even after his retirement.

In March 1989, Dr. Peter Tuteur examined claimant at respondent’s request. Dr. Tuteur is board certified in internal medicine, with a subspecialty in pulmonary diseases. Testifying by evidence deposition taken on August 2, 1989, Dr. Tuteur stated that claimant gave him a medical history which included his inability to climb more than one flight of stairs or to walk more than four blocks due to shortness of breath. Claimant also reported that he had a daily cough which produced whitish-yellow sputum. He also described awakening at night, wheezing and breathless. This condition necessitated him getting up, walking around and expectorating for relief.

Dr. Tuteur’s physical examination of claimant revealed that his breathing sounds were normal and that occasional wheezes were heard during the forced expiratory volume maneuvers. Chest X rays taken of claimant during this examination were read by Dr. Tuteur as showing no evidence of coal workers’ pneumoconiosis. Blood gas studies demonstrated a mild obstructive ventilatory defect, which improved significantly with the administration of a bronchodilator. Dr. Tuteur concluded that claimant had chronic bronchitis, the cause of which was possibly related to claimant’s previous cigarette consumption but more likely due to claimant’s peptic ulcer disease, which potentially caused regurgitation and aspiration.

Respondent first argues that claimant failed to prove disablement under section 1(f) of the Act. Specifically, respondent maintains that claimant provided no medical evidence to support his contention that his disablement occurred within the statutory two-year period. Respondent also argues that claimant’s testimony was sufficiently contradictory and incredible that his testimony alone was not sufficient to prove disablement within two years after his retirement in 1983.

Claimant asserts that respondent has waived this issue by failing to raise it before the arbitrator. Claimant further maintains claimant’s disablement was proved both by his testimony and that of Drs. Khan, Sanjabi and Lenyo.

We initially address claimant’s argument that respondent waived this contention. The issue was apparently before the Commission. The majority’s decision and the dissent both addressed the issue of whether claimant’s disablement occurred within the statutory period, despite the fact the record does not show that respondent specifically made this argument. Accordingly, we find that this issue is properly before us.

It is the Commission’s province to draw reasonable inferences from the evidence and to determine what weight the evidence is to be given; its decision on a question of fact will not be disturbed unless it is against the manifest weight of the evidence. (Paganelis v. Industrial Comm’n (1989), 132 Ill. 2d 468, 548 N.E.2d 1033.) Where the inferences drawn by the Commission are reasonable, a court of review will not discard them merely because other inferences could be drawn from the evidence. Warren v. Industrial Comm’n (1975), 61 Ill. 2d 373, 335 N.E.2d 488.

The relevant statute provides:

“No compensation shall be payable for on or account of any occupational disease unless disablement, as herein defined, occurs within two years after the last day of the last exposure to the hazards of the disease, except in cases of occupational disease caused by berylliosis or by the inhalation of silica dust or asbestos dust and, in such cases, within 3 years after the last day of the last exposure to the hazards of such disease and except in the case of occupational disease caused by exposure to radiological materials or equipment, and in such case, within 25 years after the last day of last exposure to the hazards of such disease.” Ill. Rev. Stat. 1985, ch. 48, par. 172.36(f).

Concerning the issue of whether claimant proved his disablement, his testimony indicates that he was disabled upon his retirement, after approximately 37 years of coal mining. His breathing problems prevented him from fulfilling his work duties with respondent. He had experienced significant breathing problems eight years prior to his retirement.

Moreover, claimant gave physical histories to his examining physicians which included shortness of breath, periodic coughing with occasional sputum production and inability to perform any tasks requiring exertion.

Dr. Khan examined claimant approximately 19 months after the relevant statutory disablement period had ended. In Dr. Khan’s deposition, the following colloquy took place:

“Q. You indicated that it’s possible for coal workers’ pneumoconiosis to progress after removal from coal dust exposure; is that correct?
A. It is a chronic, slowly progressive disease and after-even after removing the patient from that environment the disease goes on in progression and eventually they get cor pulmonale or pneumonia or heart failure due to lung disease and they die. That is the usual terminal cause of these patients.
Q. Is every individual that has, in your opinion, coal workers’ pneumoconiosis, are they all going to progress with the disease like that or will some just stay the same as they are once they leave the coal dust exposure:
A. Vast majority of those will progress slowly over the years.
Q. Okay. And what’s the basis of your opinion about that, Doctor?
A. Well, basis of this opinion is medical information obtained from the medical knowledge.” (Emphasis added.)

Dr. Lenyo examined claimant approximately 33 months after the subject disablement period had expired. Dr. Lenyo found it significant that claimant had symptoms of chronic lung diseases. Moreover, the findings of Dr. Lenyo’s physical examination of claimant confirmed claimant’s medical history. Dr. Lenyo described coal workers’ pneumoconiosis as a permanent and irreversible condition, which gradually worsens over the years.

Further, Dr. Sanjabi, who examined claimant approximately eight months after the close of the statutory disablement period, found evidence of mild simple pneumoconiosis, with minor linear densities present.

The Commission determined that claimant was disabled on August 3, 1983, the date of his retirement. The Commission found that claimant’s testimony was credible and that it was supported by the medical histories he gave the examining physicians and the testimony of Drs. Khan and Lenyo.

We find that the record supports the Commission’s determination of the disablement issue. Of particular importance is the subject disease’s progression. Both Dr. Khan and Dr. Lenyo, who have substantial experience in dealing with coal workers’ pneumoconiosis patients, describe the disease as chronic and slowly progressive. In other words, this lung disorder does not simply manifest itself in a short period but, instead, proceeds in a gradual and evermore debilitating manner over a number of years. Therefore, we reject respondent’s argument that, because Drs. Khan and Lenyo examined claimant several years after the statutory period expired, their opinions should have no influence in determining this issue.

Based upon claimant’s testimony, the medical histories he gave examining physicians and the testimony of Drs. Khan and Lenyo, the Commission permissibly inferred that claimant’s disablement occurred within the statutory period.

Next, respondent contends that the Commission’s finding that claimant had coal workers’ pneumoconiosis was against the manifest weight of the evidence. In effect, respondent maintains that the testimony of its examining physician should be given more weight than that of Drs. Khan and Lenyo. In response, claimant argues that there is ample evidence to support the Commission’s finding. It is for the Commission to decide which of two conflicting opinions is to be accepted. (Material Service Corp. v. Industrial Comm’n (1983), 97 Ill. 2d 382, 454 N.E.2d 655.) Making actual determinations is primarily the Commission’s function. A court of review will not overturn its findings unless they are contrary to the manifest weight of the evidence. C.D. Turner & Sons, Inc. v. Industrial Comm’n (1983), 96 Ill. 2d 231, 449 N.E.2d 836.

Dr. Sanjabi determined that, based upon his reading of a chest X ray, claimant had simple mild pneumoconiosis. Dr. Khan diagnosed claimant’s condition as coal workers’ pneumoconiosis. Dr. Lenyo determined that claimant had coal workers’ pneumoconiosis. The fact that Dr. Tuteur came to an opposite conclusion is not a sufficient basis upon which to overturn the Commission’s finding as to this issue.

Next, respondent contends that claimant did not prove a causal relationship between claimant’s pneumoconiosis and his condition of ill-being. Claimant argues that the record supports the Commission’s finding. It is within the province of the Commission to determine questions concerning causal connection, and its findings will not be overturned unless they are against the manifest weight of the evidence. Frigo v. Industrial Comm’n (1990), 199 Ill. App. 3d 880, 557 N.E.2d 624.

Claimant testified that he was exposed to coal and rock dust on a daily basis during his 37 years of employment in the industry. Drs. Sanjabi, Khan and Lenyo concluded that claimant had coal workers’ pneumoconiosis, a disease caused by the deposition of large amounts of coal dust in the lungs. Dr. Lenyo specifically opined that claimant’s lung condition was caused by his employment. Thus, there is sufficient medical evidence to support the commission’s decision regarding the causal connection between claimant’s employment and his condition of ill-being.

Finally, respondent argues that the Commission erred in finding that claimant was permanently and totally disabled. Claimant asserts that the evidence of the extent and nature of his disability is sufficient to support the Commission’s finding. Determination of the extent or permanency of a claimant’s disability is a question of fact and the Commission’s decision will not be set aside unless it is manifestly erroneous. Esposito v. Industrial Comm’n (1989), 186 Ill. App. 3d 728, 542 N.E.2d 843.

A person is totally and permanently disabled for the purpose of workers’ compensation benefits when he is unable to make some contribution to industry sufficient to justify payment of wages to him. (A.M.T.C. of Illinois, Inc., Aero Mayflower Transit Co. v. Industrial Comm’n (1979), 77 Ill. 2d 482, 397 N.E.2d 804.) However, a claimant need not be reduced to total physical incapacity or helplessness to be found totally and permanently disabled. (A.M.T.C. of Illinois, Inc., 77 Ill. 2d at 487, 397 N.E.2d at 806.) A person is totally disabled when he cannot perform services except those that are so limited in quantity, dependability or quality that there is no reasonably stable market for them. Sterling Steel Casting Co. v. Industrial Comm’n 1979), 74 Ill. 2d 273, 384 N.E.2d 1326.

The record clearly demonstrates claimant is unable to perform the tasks necessary to being gainfully employed. Drs. Khan and Lenyo determined that claimant could not be exposed to coal dust. His age (71 as of the arbitration hearing), his lack of education and training, plus his significant physical limitations are the principal factors that support the Commission’s finding that there is no reasonably stable market for his services. Accordingly, the Commission’s finding that claimant is totally and permanently disabled is not against the manifest weight of the evidence.

For reasons stated above, we affirm the judgment of the circuit court.

Affirmed.

McCULLOUGH, P.J., and RAKOWSKI, STOUDER, and H. LEWIS, JJ., concur.


author: JUSTICE DOYLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT W. KRAUSE, Defendant-Appellant.
    Second District
    No. 2—91—0438
    Opinion filed March 3, 1993.

      Glenn M. Sowa, of Law Offices of Donahue, Sowa & Bugos, of Geneva, for appellant.
    Dallas C. Ingemunson, State’s Attorney, of Yorkville (William L. Browers and Gregory L. Slovacek, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DOYLE

delivered the opinion of the court:

Defendant, Robert W. Krause, was found guilty by a jury of official misconduct (Ill. Rev. Stat. 1991, ch. 38, par. 33 — 3(c)). The court sentenced defendant to a 30-month term of probation. Defendant appeals his conviction, raising the following issues: (1) whether the trial court erred in denying defendant’s motion to dismiss the indictment; (2) whether defendant was proved guilty of the offense beyond a reasonable doubt; and (3) whether the trial court erred in prohibiting defendant from offering character testimony in his defense.

Defendant first contends that it was error to deny his motion to dismiss the indictment and his motion in arrest of judgment because the indictment failed to state an offense. The indictment charged that, on July 23, 1990, defendant, “a public employee *** committed misconduct when, in his official capacity as a Kendall County deputy patrolman, he with intent to obtain personal advantage for himself performed an act in excess of his lawful authority in that he utilized the Law Enforcement Data System (LEADS), in his official capacity requesting computer information on a person by the name of Judith G. Zydowsky [sic], *** said information being obtained for the purpose of facilitating the offense of prostitution.”

The standard a reviewing court applies to determine the sufficiency of an indictment which is challenged for the first time on appeal is whether the indictment apprised the defendant of the precise offense charged with sufficient specificity so that he could prepare his defense and plead the resulting conviction as a bar to future prosecutions based on the same conduct. (People v. Thingvold (1991), 145 Ill. 2d 441, 448.) However, defendant in the present case moved to dismiss the indictment before trial. Our analysis, therefore, includes whether the indictment complies with the requirements of the Code of Criminal Procedure of 1963. (See Ill. Rev. Stat. 1991, ch. 38, par. Ill — 3(a); Thingvold, 145 Ill. 2d at 448.) Section 111 — 3(a) requires the indictment to state the name of the offense and its statutory section, the nature and elements of the offense, the date and county where the offense was committed as definitely as can be done, and the name of the accused, if known, or any name or description of an unknown accused which will allow identification with reasonable certainty. (Ill. Rev. Stat. 1991, ch. 38, par. Ill — 3(a).) The language of the statute may be sufficient to apprise the defendant of the nature and elements of the offense; however, if the statutory language does not particularize the offense, the indictment must specify the act the defendant committed. (People v. Wisslead (1985), 108 Ill. 2d 389, 394-95.) Section 33 — 3(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 33 — 3(c)) is one of those statutes which, standing alone, does not particularize the offense. People v. Samel (1983), 115 Ill. App. 3d 905, 909.

Defendant first argues that the allegations in the indictment, that defendant performed an act in excess of his lawful authority and that defendant, in his official capacity, requested computer information, negate each other. We disagree. The elements of the offense include that the defendant, in his official capacity, performed an act in excess of his lawful authority. (Ill. Rev. Stat. 1991, ch. 38, par. 33 — 3(c).) Moreover, a public official may act within the scope of his official duties, yet act in excess of his lawful authority at the same time. (Cf. People v. Scharlau (1990), 141 Ill. 2d 180, 196.) “An act is performed in one’s official capacity if it is accomplished by exploitation of his position as a public officer or employee.” (People v. Kleffman (1980), 90 Ill. App. 3d 1, 3.) Thus, these allegations are not mutually exclusive, but instead they form the basis of the offense.

Defendant further argues that the indictment is deficient because it fails to allege facts sufficient to inform defendant of the nature of the charge against him. According to defendant, the indictment fails to particularize the personal advantage defendant intended to obtain. This argument lacks merit. The indictment clearly states that the personal advantage was the facilitation of the prostitution in which defendant intended to engage. This language is sufficient to apprise defendant of the nature of the charge against him. See People v. Mehelic (1987), 152 Ill. App. 3d 843, 849.

Defendant incorrectly maintains that he was charged with official misconduct predicated on the offense of prostitution. What the indictment charges is official misconduct based on the improper use of the LEAD system. (See People v. Hollingsead (1991), 210 Ill. App. 3d 750, 766-68 (the violation of a rule or regulation of an administrative body may form the basis for prosecution of official misconduct).) Thus, defendant’s argument, that obtaining information via LEADS is not an act prohibited by the prostitution statute, is irrelevant. We conclude that the indictment was not deficient.

We next address defendant’s contention that he was not proved guilty of the offense beyond a reasonable doubt. The evidence at trial established that defendant was a patrol sergeant who worked the midnight shift. Defendant was required to abide by the rules and regulations of the Kendall County sheriff’s department, including Rule 8, which provided in relevant part:

“[P]ersonal association with persons who have been convicted of a felony within the last five years or who are under criminal investigation or indictment, or who have an open and notorious reputation in the community for felonious activity is prohibited.”

Rule 27 provided that an officer may use the sheriff’s department facilities to obtain information only for law enforcement purposes, and Rule 59 prohibited an officer from using the sheriff’s department facilities for private gain or advantage.

Judith Zydowski, an undercover Chicago police officer, testified that on July 23, 1990, she was investigating escort services to determine whether they engaged in prostitution. She found an ad in the Reader newspaper for a male escort. Zydowski called the telephone number listed in the ad, and a man answered. The man asked her a variety of personal questions, such as her name, her height, weight, date of birth and driver’s license number. Zydowski testified that she did not give the man a fictitious name. Zydowski further testified that the man asked for the correct spelling of her name. The man instructed her to book a room at a hotel in Hillside, Illinois, and indicated that she would have to pay for the room. Zydowski asked how much he charged, and the man told her “he’d have to check [Zydowski] out” and call her back.

The Kendall County dispatcher testified that defendant telephoned her around 1:30 p.m. and asked her to run “a name and date of birth,” a driver’s license check, and a firearm owner’s identification (FOID) check on Judith Zydowski. The dispatcher used the LEADS terminal to access this information. The dispatcher informed defendant that Zydowski “listed clear” and that Zydowski had a valid driver’s license and a valid FOID card.

According to Zydowski, about 10 to 15 minutes after the initial phone conversation, the man called her back and told her he had checked Zydowski out. The man said his services cost $125 per hour and $50 for each additional hour. The man instructed Zydowski to obtain a room and call him back. Zydowski called the hotel and explained that she wanted a room for an undercover operation. The hotel management agreed, so Zydowski called the man back. He told her to go to the hotel and call him when she arrived there. The man also inquired into what type of man Zydowski wanted. She told him that she “was into men who were clean. He said that all the men were clean and that they all practiced safety.” Zydowski then went to the hotel with two other police officers. When Zydowski got to the room, she called the man again. He informed her that he would be sending a man to the room within 30 minutes. After 30 minutes elapsed, the same man called the room and told Zydowski that the escort would arrive in 10 minutes.

About 10 minutes later, at approximately 3:30 p.m., Zydowski heard a knock on the hotel room door. She opened the door and admitted defendant into the room. Defendant identified himself as “Chris.” Zydowski recognized his voice as the same voice on the phone. Defendant asked Zydowski for identification, and she gave him her driver’s license. He looked at it and said it was okay. Zydowski told defendant that it was the first-year anniversary of her divorce and she was doing something spontaneous and crazy. Zydowski told defendant she wanted to have anal intercourse. He agreed, but wanted the money first. Zydowski then arrested defendant.

Defendant testified that he called the dispatcher and requested information on Zydowski because he wanted to determine if she was a felon. Defendant explained that he was attempting to abide by Rule 8 of the rules and regulations of the sheriff’s department by seeking to avoid personal association with felons.

We will not reverse a conviction challenged on sufficiency of evidence grounds unless the evidence is so improbable that there remains a reasonable doubt of the defendant’s guilt. (People v. Eyler (1989), 133 Ill. 2d 173, 191.) The standard of review is whether, considering all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 49.) It was the jury’s function to assess the credibility of the witnesses and to resolve conflicts or inconsistencies in their testimony based on the evidence. People v. Frieberg (1992), 147 Ill. 2d 326, 360.

The elements of official misconduct, as charged, require the State to prove that a public officer, in his official capacity, performed an act in excess of his lawful authority with the intent to obtain a personal advantage for himself. (Ill. Rev. Stat. 1991, ch. 38, par. 33 — 3(c).) Defendant argues that he cannot be convicted of the offense because Rule 8 of the Kendall County sheriff’s department prohibits association with felons, and it was his purpose to abide by Rule 8 when he used the LEAD system. The State responds that the evidence showed that defendant violated two rules of the sheriff’s department which prohibit the use of the resources and facilities of the sheriff’s department for private gain.

The jury could have found that defendant’s asserted reason for using the LEADS information was inherently improbable. To accept defendant’s explanation, the jury would have had to believe that defendant wanted to avoid breaking a rule while breaking the law. The State presented evidence to show that defendant was using the LEAD system to determine whether his proposed client was an undercover police officer and, if so, he would not have arranged to meet with her. The jury might reasonably have believed that defendant, a police officer, would have known that undercover police officers do not use their actual names. Zydowski testified that she does not ordinarily use her real name when working undercover, and it was an exception that she gave her real name on this occasion. The evidence indicates that defendant failed to discover that Zydowski was a police officer because the LEADS information revealed that “Judith Zydowski” was an actual person and not a false undercover name. Thus, the jury might have found that defendant employed the LEAD system to facilitate prostitution by minimizing his risk of falling into the hands of undercover police investigators.

In any event, even if the jury had accepted as true defendant’s claim that his only purpose in using LEADS was to comply with Rule 8 by avoiding association with felons, it might still have found that defendant’s own testimony established the essential elements of official misconduct as charged. It is apparent from the testimony that defendant was acting in an official capacity in making an unauthorized request for the computer information, and he does not deny that he intended to engage in the offense of prostitution. He maintains, however, that in view of his professed Rule 8 motivation, he had no intent to obtain a personal advantage for himself in requesting the information.

If defendant’s motive in using LEADS was, as he claims, to avoid associating with felons during the course of his planned prostitution activity, it is no less evident that he intended to use the information for his personal advantage. Defendant was privileged neither to engage in criminal activity nor to utilize official computer records as a device for screening or selecting clients for his unlawful enterprise. We need not be concerned with why defendant found it necessary to screen his potential clients through LEADS. The fact that he did so, as an instrumental step preliminary to meeting with Zydowski, sufficiently demonstrates that it was his intention to use the computer information to facilitate his planned commission of an offense. Defendant must not now be heard to argue that he did not seek the information for his personal advantage. We con-elude that defendant was proved guilty beyond a reasonable doubt.

Finally, defendant contends that the trial court erred in prohibiting him from presenting reputation testimony in his defense. Evidence of a defendant’s reputation for honesty is admissible when it relates to some issue involved in the crime charged, or when the defendant’s reputation for honesty has first been attacked by the State. (People v. Colclasure (1990), 200 Ill. App. 3d 1038, 1044-45; People v. Doll (1984), 126 Ill. App. 3d 495, 501.) Evidence of good reputation for truth and veracity is not admissible merely because a defendant has testified at trial. (Colclasure, 200 Ill. App. 3d at 1045; Doll, 126 Ill. App. 3d at 501.) Only after defendant’s credibility has been placed in issue will supporting reputation evidence be warranted. For example, such testimony would be admissible where the State has presented evidence to show defendant’s bad reputation for veracity, impeached defendant with a prior conviction, or attacked his veracity during cross-examination. Mere contradiction of defendant’s testimony is not, in itself, sufficient to allow the introduction of supportive reputation testimony. (People v. George (1978), 67 Ill. App. 3d 102, 108.) We find in the record of the present case no indication that the State attacked defendant’s testimonial veracity. The trial court correctly determined that defense evidence of defendant’s good reputation for veracity was inadmissible on that basis.

Defendant further contends that the offense of official misconduct necessarily implicates the character trait of dishonesty and that defense reputation testimony was warranted on that separate basis. Even assuming, arguendo, that the trait of dishonesty is inherent in the offense as charged, it is our view that defendant’s testimonial admissions effectively render irrelevant any consideration of defendant’s reputation for honesty. We conclude, therefore, that error in excluding the testimony, if any, was harmless under the particular circumstances of this case. Further, the trial court correctly excluded defense reputation evidence relating to defendant’s chastity or morality as irrelevant in view of defendant’s testimony admitting that he intended to engage in prostitution.

The judgment of the circuit court is affirmed.

Affirmed.

WOODWARD and GEIGER, JJ., concur.


author: JUSTICE UNVERZAGT

text:
      In re J.A., a Minor (The People of the State of Illinois, Petitioner-Appellant, v. J.A., Respondent-Appellee).
    Second District
    No. 2—91—0233
    Opinion filed March 3, 1993.

      Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers, David A. Bernhard, John X. Breslin, and Robert M. Hansen, all of State’s Attorneys Appellate Prosecutor's Office, of counsel), for the People.
    G. Joseph Weller and Steven E. Wiltgen, both of State Appellate Defender’s Office, of Elgin, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The State appeals from the circuit court’s order dismissing its petition to have the respondent, J.A., declared a delinquent minor. The State contends the court erred in dismissing the petition on the ground of prejudicial delay.

On August 1, 1989, the State filed a petition for adjudication of wardship of respondent. Count I alleged that respondent, who was born August 16, 1979, was a delinquent minor by virtue of having committed arson (Ill. Rev. Stat. 1989, ch. 38, par. 20 — 1(a)). It further alleged that he knowingly damaged by fire a garage belonging to Jacque Cribb.

Count II alleged that respondent committed criminal damage to property (Ill. Rev. Stat. 1989, ch. 38, par. 21 — 1(b)). Count II further alleged that the minor recklessly damaged the garage by lighting a soda can filled with gasoline which fell over and spilled out. This in turn ignited a nearby lawn mower, which caused the garage to burn.

The cause was continued a number of times for various reasons. On July 9, 1990, the matter was called for status. The parties stated that they were unable to reach an agreement regarding a disposition, so the court set an August 2 trial date.

On August 2, the State filed a motion for a continuance. The State, represented by a Rule 711 law student (134 Ill. 2d R. 711), stated that the prosecutor assigned to the case was on trial in another courtroom. In addition, he stated that two material witnesses from the Waukegan fire department were out of State and thus unavailable.

Noting that the matter had been specially set, the court called it “absolutely inexcusable” that the State failed to inform the court or defense counsel of its scheduling problems prior to the case being called for trial. Nonetheless, the court granted the State a continuance to August 28. The court specifically admonished the State to contact personally its witnesses to ensure their availability and to inform defense counsel and the court ahead of time if there was going to be a problem.

On August 28, the cause was called for trial. The assistant State’s Attorney informed the court that her primary witness, Officer Carry, was on “annual leave.” She stated that she was prepared to present her witnesses other than Officer Carry, then continue the matter for Carry’s testimony. She did not think she could prove her case without Carry.

Defense counsel objected to a further continuance. The court reminded the assistant State’s Attorney that it had specifically ordered the State to determine the availability of its witnesses ahead of time and indicated that it would not grant a further continuance. The State then requested leave to withdraw the petition. The court apparently believed that it had no discretion to deny the request and therefore granted the State’s motion to withdraw the petition.

On September 6, the State refiled the petition. However, it was not served on the minor until December 18. Eleven attempts were made to serve the summons at 1025 Hickory, which had been the minor’s address when the previous petition was filed. On November 9, 1990, an alias summons was issued to the respondent at 2035 Atlantic Avenue. This summons was not served because the officer attempting service found that the address did not exist. The highest street number on Atlantic Avenue was 1021. Yet another summons was issued, apparently to the correct address, and was served on December 18, 1990, on the eighth attempt.

Respondent filed a motion to dismiss the refiled petition, alleging that the State’s Attorney’s actions were abusive, that the delay in serving respondent was unjust, and that the overall delay was prejudicial to his best interests.

The court conducted a hearing on respondent’s motion on January 25, 1991. The State argued that much of the delay in the case was attributable to respondent, that the State’s actions were not an intentional attempt to harass or prejudice respondent, and that the failure to serve respondent was due to his change of address.

The court granted respondent’s motion and dismissed the petition. The court found that prejudice to the minor could be presumed. Balancing the interests of the minor and the public, the court concluded that the delay was a fundamental deprivation of due process, warranting dismissal of the petition. The State filed a timely notice of appeal.

On appeal, the State contends that the court improperly dismissed the petition on the ground of a prejudicial delay in bringing the minor to an adjudicatory hearing. The State maintains that the total amount of delay attributed to it was reasonable under the circumstances and that respondent has failed to demonstrate any actual and substantial prejudice resulting from the delay.

In In re C.T. (1983), 120 Ill. App. 3d 922, the Appellate Court, First District, relying on People v. Lawson (1977), 67 Ill. 2d 449, determined that the trial court had the authority to dismiss a delinquency petition where it found a fundamental denial of due process due to prejudicial delay. (120 Ill. App. 3d at 926-27.) The court noted that the juvenile court’s function is to ensure that the best interests of the minor respondent, his family and society are served. (120 Ill. App. 3d at 925.) The court held, however, that respondent is required to show actual and substantial prejudice. Once the minor makes a clear showing of prejudice, the burden shifts to the State to show the delay was reasonable. (120 Ill. App. 3d at 927.) In C.T, the court after two continuances requested by respondent marked the case “final.” The State filed a single motion for continuance due to the unavailability of a witness. The court denied the motion and dismissed the petition. The appellate court found that respondent failed to demonstrate actual and substantial prejudice. 120 Ill. App. 3d at 929.

Cases subsequent to C.T. have held that prejudicial delay may be presumed under certain circumstances. In In re F.H. (1989), 190 Ill. App. 3d 321, the court held that prejudice to respondent could be presumed where the adjudicatory hearing took place more than nine months after respondent answered ready for trial and one year after the delinquency petition was filed. (190 Ill. App. 3d at 331.) The court found that the record showed “a certain degree of laxity by the State” which supported the conclusion that the delay was neither justified nor reasonable. 190 Ill. App. 3d at 331-32.

Despite the presumption of prejudice, the court proceeded to balance the interests of the respondent, his family, and society. The court noted that the overriding concern of the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1989, ch. 37, par. 801 — 1 et seq.) is the welfare of the minor, that the Act is intended to be remedial rather than punitive, and that it specifically provides for promptness in juvenile proceedings. 190 Ill. App. 3d at 332-33; Ill. Rev. Stat. 1989, ch. 37, par. 805-14.

This balancing of the competing interests resulted in a determination that the dismissal of the petition was justified. The court noted that respondent was required to absent himself repeatedly from school and was subject to prolonged anxiety regarding his fate. During the proceedings, the minor had attempted “to lead a socially constructive life.” (190 Ill. App. 3d at 333.) The court noted that the prolonged proceedings had adversely affected respondent’s above-average grades. The court further noted the disruption wrought on respondent’s family. Although the offense was serious, the court believed the effect of the proceedings on respondent and his family outweighed any adverse impact on society. 190 Ill. App. 3d at 333-34.

In the instant case, the court correctly balanced the various interests served by the Juvenile Court Act. As in F.H., the social investigation report reveals that respondent is an above-average student and, except for this one incident, has led a law-abiding life. Respondent has missed time from school to attend court appearances, and his father has missed time from work to appear with him. Including the pendency of this appeal, it has now been nearly four years since the incident which gave rise to these proceedings. “The threat of the loss of liberty should not indefinitely hang over a minor’s head.” In re Armour (1973), 15 Ill. App. 3d 529, 536.

Moreover, the interests of society will not be disserved by the dismissal of the petition. Although the State characterizes respondent’s conduct as “arson,” the specific allegations of the petition do not appear to support such a charge. Rather, the petition alleges that respondent and his friend lit a soda can filled with gasoline which was tipped over, setting the garage on fire. While this conduct was undoubtedly stupid, it must be remembered that respondent was nine years old at the time and is presumed to have lacked the judgment of an adult. In short, respondent is guilty of little more than a childish prank which went awry. It is not as though a dangerous person is being turned loose on the streets. Moreover, although the record is unclear, it appears that either restitution to the victim has already been paid or, at least, that the minor’s family has insurance available to cover the loss. Thus, some provision has been made for the victim.

We further note that in the instant case, unlike cases such as C.T., the State disregarded the court’s orders. The State ignored the court’s direction to contact its witnesses prior to the August 28 trial date and inform the court ahead of time if there would be a conflict. Moreover, even after the petition was refiled, it required another 3V2 months to effect service on respondent. Although respondent’s family did move during the pendency of the proceedings, the record supports the court’s implicit finding that the State was less than diligent in procuring service of the refiled petition. The court was justified in dismissing the petition as a means of upholding its authority.

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

Affirmed.

McLAREN and QUETSCH, JJ., concur.