author: JUSTICE INGLIS JUSTICE WOODWARD,

text:
    MARISU CESENA, Adm’r of the Estate of Timothy J. Golden, Deceased, Plaintiff-Appellee, v. DU PAGE COUNTY et al., Defendants (Jeffrey B. Fawell, Contemnor-Appellant).
    Second District
    No. 2-89-0867
    Opinion filed August 17, 1990.
    Rehearing denied September 14, 1990.

      WOODWARD, J., specially concurring.
    Jeffrey B. Fawell and Bruce R. Fawell, both of Fawell & Fawell, of Wheaton, and George Patrick Lynch, Ltd., of Chicago (George P. Lynch, of counsel), for appellant.
    Philip H. Corboy and Thomas A. Demetrio, both of Corboy & Demetrio, P.C., of Chicago (Robert J. Single, of counsel), for appellee.
    Thomas P. Sullivan and Thomas S. O’Neill, both of Jenner & Block, of Chicago, for amicus curiae National Association of Criminal Defense Lawyers.
    Robert J. Anderson, of Anderson, Deitsch & Associates, P.C., of Wheaton, for amici curiae Du Page County Bar Association and Du Page Association of Women Lawyers.
    Dennis A. Rendleman, of Illinois State Bar Association, of Springfield, for amicus curiae Illinois State Bar Association.
   JUSTICE INGLIS

delivered the opinion of the court:

Contemnor, Jeffrey Fawell, appeals from an order of the circuit court of Du Page County finding him in contempt of court and imposing a $1,000 fine for each day that he refuses to comply with a court order. Fawell contends that he should not be required to comply with the court order because to do so would result in disclosure of information which the attorney-client privilege protects. We note here that Fawell’s position is supported by amici curiae briefs of the Illinois State Bar Association (ISBA), the Du Page County Bar Association, and the Du Page Association of Women Lawyers.

This case arose as a result of a traffic accident on September 28, 1987. At approximately 10:35 p.m. that night, Fawell received a telephone call from his law partner informing him that a potential client (John Doe) wished to consult with him regarding an emergency matter. Around 12:15 a.m. on September 29, 1987, Fawell arrived at his law office and met with John Doe. Shortly thereafter, Fawell and John Doe went to the Du Page County sheriff’s office to file a report pursuant to section 11 — 401(b) of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 401(b)). However, the sheriff’s deputy refused to accept a report, and no report was ever made in this case.

Thereafter, a grand jury investigation was commenced with respect to Fawell’s representation of John Doe, and a subpoena was issued upon Fawell to testify regarding his representation of John Doe. Fawell filed a motion to quash the subpoena.

On October 28, 1987, a hearing was held on Fawell’s motion to quash the subpoena. Fawell testified that he and his client went to the sheriff’s office to file a report pursuant to the Code. Fawell stated that he walked up to a “window” and began to read a prepared written statement to Deputy Paine but was stopped and told to give the written statement to Paine.. Fawell handed the report to Deputy Paine, who, after reading where the accident occurred, informed Fa-well that the report had to be submitted to the Illinois State Police department because the accident occurred on the tollway (1-88). Fa-well informed Paine that it was proper to file the report at the sheriff’s office and that he was under a time constraint because the report had to be made within three hours of the accident. Paine then told Fawell that he had 48 hours to file the report and again stated that it must be done at the Illinois State Police department office in Oak Brook. After further discussion, Fawell and his client left the sheriff’s department. At no time did Fawell reveal his client’s name to Deputy Paine.

Fawell further testified that he received a telephone call from an Illinois State Police officer requesting his client’s name, but Fawell refused to disclose the information. Two Du Page County assistant State’s Attorneys made similar requests, but Fawell continued to refuse to identify his client.

On cross-examination, Fawell testified that he called the State Police department after the sheriff’s office refused to accept the report, but only did so for “humanitarian” reasons. Fawell was not aware that the automobile accident at issue in this case involved a fatality when he went to file the report at the sheriff’s office.

Deputy James Paine of the Du Page County sheriff’s department testified that he spoke with Fawell on the night in question and agreed that he told Fawell to report the accident to the Illinois State Police department. Paine stated that he never saw Fawell’s client and that Fawell never tendered a written report to him, although Fawell did begin to read the report to him.

On cross-examination, Paine denied telling Fawell that he had 48 hours to file the report. He did admit, however, that he could have accepted the report instead of directing Fawell to the Illinois State Police department. Paine also agreed that Fawell’s client could have been with Fawell at the sheriff’s office but that he did not see him.

On November 6, 1987, the trial court granted Fawell’s motion to quash the grand jury subpoena. Judge Nelligan reasoned that an attorney-client relationship existed between Fawell and John Doe, and, although the client’s identity was generally not privileged information, it was privileged in this instance because the client’s identity “would provide the necessary link to the State to institute a prosecution for a serious felony offense against the client.”

On September 28, 1988, plaintiff, Marisu Cesena, as administrator of the estate of Timothy Golden, filed the lawsuit now before us naming Du Page County, the sheriff of Du Page County, and Mitchell Paine as defendants. The complaint alleged that Timothy Golden was killed when he was hit by an automobile while he was walking on 1-88. It further alleged that defendants were negligent in that they failed to obtain the relevant information concerning the accident, including the identity of the driver of the automobile (John Doe).

On March 10, 1989, Fawell refused to answer certain questions asked at his deposition relating to John Doe’s identity. Thereafter, plaintiff made a motion pursuant to Supreme Court Rule 219(a) (107 Ill. 2d R. 219(a)) to compel Fawell to answer the questions. On August 22, 1989, following numerous continuances, the trial court heard arguments on the motion to compel. On August 28, 1989, Judge Peccarelli ordered Fawell to answer four questions and continued the case to the following day. The four questions were:

“Would you please state to me the name and address of the individual that you met with on the evening of September 28, early morning hours of September 28th, 1987?
* * *
Did that individual at that time inform you as to an incident in which he had been involved in on 1-88 that evening?
***
What did you tell him [Deputy Paine] with reference to the location?
* * *
Did you ever view the automobile that this individual was driving on the night of September the 28th, 1987?”

On August 29, 1989, Fawell informed the court that he would not answer the questions that he was ordered to answer. Fawell’s motion to reconsider was denied, and the court subsequently found Fawell in direct civil contempt of court. Fawell was fined $1,000 per day and ordered incarcerated until he answered the questions. Fawell was released on his own recognizance, and the enforcement of the order was stayed until September 5,1989.

On August 29, 1989, Justice Woodward granted Fawell’s emergency motion requesting a stay of the trial court’s order. The order effectively stayed the trial court’s order until August 30, 1989. On August 30, 1989, Justice Woodward continued the stay until September 8,1989.

On September 7, 1989, this court denied Fawell’s emergency motion to stay the trial court’s order pending appeal. On September 8, 1989, the Illinois Supreme Court granted Fawell’s request to stay the appellate court order until further order of the court. On September 14, 1989, the supreme court granted Fawell a stay of the trial court’s order pending appeal. This appeal followed.

Initially, we must determine whether Fawell and John Doe had established an attorney-client relationship before we decide if the questions involved in this case solicited privileged information. The attorney-client privilege is recognized as one of “the oldest of the privileges for confidential communications known to the common law.” (Upjohn Co. v. United States (1981), 449 U.S. 383, 389, 66 L. Ed. 2d 584, 591, 101 S. Ct. 677, 682; 8 J. Wigmore, Evidence, §2290 (McNaughton rev. 1961); see Hazard, An Historical Perspective on the Attorney-Client Privilege, 66 Calif. L. Rev. 1061, 1071 (1978).) The attorney-client privilege exists to enable a person to consult freely and openly with an attorney without any fear of compelled disclosure of the information communicated. (People v. Adam (1972), 51 Ill. 2d 46, 48, cert. denied (1972), 409 U.S. 948, 34 L. Ed. 2d 218, 93 S. Ct. 289; Knief v. Sotos (1989), 181 Ill. App. 3d 959, 964.) The privilege has been described as being essential “to the proper functioning of our adversary system of justice.” (United States v. Zolin (1989), 491 U.S. 554, 562, 105 L. Ed. 2d 469, 485, 109 S. Ct. 2619, 2626.) The essentials of the creation of the attorney-client privilege have been defined as follows:

“ ‘(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.’ ” Adam, 51 Ill. 2d at 48, quoting 8 J. Wigmore, Evidence, §2292, at 554 (McNaughton rev. 1961).

In the present case, Fawell testified at his hearing to quash the grand jury subpoena that John Doe sought out his legal advice with the expectation that any communications would remain confidential. According to Fawell, all communications were made in confidence and related to the purpose that John Doe was soliciting Fa-well’s advice. Fawell also stated that John Doe told him that he would not waive the privilege. We do note that the court did not hear from John Doe as to the interview and his expectations concerning the communications. Under these circumstances, it is our opinion that, based on Fawell’s testimony at the hearing, an attorney-client relationship was established between Fawell and John Doe such that the privilege would apply to the communications on the night in question.

However, the attorney-client privilege is not absolute. (Taylor v. Taylor (1977), 45 Ill. App. 3d 352, 354.) This is so because a conflict exists between the client’s expectation that the communications remain confidential and the public’s interest in the disclosure of evidence. (People v. Doe (1978), 59 Ill. App. 3d 627, 633; Taylor, 45 Ill. App. 3d at 354.) Consequently, we must balance these two competing interests in this case with respect to whether Fawell must answer the four questions which the trial court ordered him to answer. We will address each question in turn.

We note here that counsel for plaintiff, at oral argument, waived consideration of question numbers two and four. Consequently, we will limit our review in this case to the two remaining questions.

Question number one requested Fawell to state “the name and address of the individual that you met with on the evening of September 28, early morning hours of September 29th, 1987?” Fawell argues that the identity of his client was privileged information because it was never communicated to a third party and was not waived. Fawell asserts that the attempt to report the accident, including his client’s name, was under compulsion of a felony prosecution (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 401(b)) and hence not voluntary. In addition, Fawell contends that John Doe’s identity would be the “last link” necessary to bring adverse judicial proceedings, both civil and criminal, against his client.

Plaintiff disagrees, arguing instead that no privilege existed with respect to the client’s identity because the requirements of section 11 — 401(b) of the Code do not violate an individual’s right against self-incrimination. Furthermore, plaintiff asserts that John Doe waived any privilege with respect to his identity because he never intended his identity to be confidential.

It must be pointed out that this question, by its terms, does not ask Fawell to reveal the name of his client who was involved in the automobile accident on the night in question. The question does not ask who accompanied Fawell to the sheriff’s office that night or even what information the report contained. Either of these questions would, by necessity, force Fawell to reveal John Doe’s identity. Instead, the question asks Fawell whom he “met with” during the “evening” of September 28 and “early morning hours” of September 29. The question poses a problem if Fawell “met with” individuals other than John Doe during the times in question. However, the questions before and after the question of whom Fawell “met with” seem to limit the “individual” to John Doe, although the question could have been phrased to leave no doubt as to limiting the question to John Doe’s identity. Given that both parties briefed, argued, and generally agreed that this question seeks John Doe’s identity from Fawell, we will review this question with these considerations in mind.

The general rule in Illinois is that a client’s identity is not protected under the attorney-client privilege. (People v. Williams (1983), 97 Ill. 2d 252, 295, cert. denied (1984), 466 U.S. 981, 80 L. Ed. 2d 836, 104 S. Ct. 2364; Shatkin Investment Corp. v. Connelly (1984), 128 Ill. App. 3d 518, 525; People v. Doe (1977), 55 Ill. App. 3d 811, 814.) While disclosure of the client’s identity is generally favored, there are two situations in which the identity falls within the protection of the privilege. First, the client’s identity will be protected when it is shown to be in the public interest to do so. (Shatkin Investment Corp., 128 Ill. App. 3d at 525; M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §505.4, at 257 (4th ed. 1984).) Second, the identity is privileged if it appears that the client will be prejudiced in “some substantial way” if his identity were disclosed. Williams, 97 Ill. 2d at 295; Doe, 55 Ill. App. 3d at 814; R. Ruebner, Illinois Criminal Trial Evidence, ch. 3, at 50-51 (1986).

Fawell does not argue that John Doe’s identity is protected because it is in the public interest to do so, but instead argues that the second exception listed above applies in this case. Fawell argues that his client will be subjected to a felony prosecution for not reporting the accident within three hours after it occurred (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 401(b)), along with the possibility of having his driving privileges revoked and becoming the focus of a civil lawsuit.

Plaintiff disagrees, arguing that had Deputy Paine accepted the report, including the client’s name, on the night in question, John Doe would have been subject to all of the above-mentioned penalties except being charged with a felony for failing to report the accident within the specified time period. In addition, plaintiff included a letter in the appendix to its brief from the Du Page County State’s Attorney’s office, dated September 12, 1989, which stated that John Doe would be placed back in the same legal position he would have been in had Deputy Paine accepted the report. Thus, according to the letter, John Doe would not be subject to the felony charge for not reporting the accident. Plaintiff concludes that the unique circumstances present in this case do not rise to the level to be recognized as an exception to the general rule favoring disclosure of a client’s identity.

We note here that Fawell filed a motion to strike the letter from the DuPage County State’s Attorney’s office from plaintiff’s brief. Fawell argued that the letter was dated September 12, 1989, 13 days after the notice of appeal was filed, and thus was not in existence during the trial court proceedings. We granted Fawell’s motion on April 5, 1990, and will consider this appeal in accordance with this ruling.

Addressing the merits of this issue, we agree with Fawell that the disclosure of John Doe’s identity could prejudice John Doe in “some substantial way.” (Williams, 97 Ill. 2d at 295.) Should Fawell be required to reveal his client’s name, the client would be faced with potential criminal and civil liability. Admittedly, John Doe would have been faced with a possibility of criminal and civil liability had Deputy Paine accepted the report on the night in question. However, he would not have been subjected to the possibility of being charged with a felony for failing to report the accident had Deputy Paine accepted the report. We thus conclude that the “substantial harm” exception to the general rule favoring disclosure applies under the specific facts in this case.

We find support for our decision in the recent decision in In re Grand Jury Proceeding, Cherney (7th Cir. 1990), 898 F.2d 565. In Cherney, the court noted that a client’s identity is protected where disclosure would reveal a client’s reason for seeking legal advice. (Cherney, 898 F.2d at 568.) The Cherney court was faced with a situation in which attorney Cherney was representing Jack Hrvatin in a drug conspiracy case. Hrvatin’s fees were paid by an unidentified person who also sought Cherney’s legal advice concerning the conspiracy. The court of appeals held that the unidentified client’s identity was privileged because its disclosure “would be tantamount to revealing the premise of a confidential communication: the very substantive reason that the client sought legal advice in the first place.” 898 F.2d at 568.

A similar result was reached in In re Witness — Attorney Before Grand Jury No. 83 — 1 (S.D. Fla. 1984), 613 F. Supp. 394. In Witness-Attorney, the attorney refused to reveal the identity of his clients) because the attorney received the information in confidence, and to reveal such a confidence would provide the government with the “last link” in an existing chain of incriminating evidence likely to lead to the indictment of the client(s) on drug-smuggling charges. (Witness — Attorney, 613 F. Supp. at 398-99.) The district court agreed, holding that the information was privileged based on the “last link” exception. (613 F. Supp. at 399.) The court noted that the attorney-client relationship must be maintained “even though the result may be distasteful.” 613 F. Supp. at 400.

Several other courts have reached similar results. See Tillotson v. Boughner (7th Cir. 1965), 350 F.2d 663 (client’s identity privileged where disclosure would result in prejudice and identity was a confidential communication); Baird v. Koerner (9th Cir. 1960), 279 F.2d 623, 633 (identification privileged if disclosure would reveal the “ultimate motive of litigation” and be the “link that could form the chain of testimony necessary to convict an individual of a federal crime”); Ravary v. Reed (1987), 163 Mich. App. 447, 415 N.W.2d 240 (disclosure of client’s name not required because it would be tantamount to disclosing the substance of a confidential communication). See generally Asserting the Attorney-Client Privilege: Client Identity, Fee Information, Whereabouts, and Documents, 3 Georgetown Journal of Legal Ethics 113 (1989); 81 Am. Jur. 2d Witnesses §213 (1976).

Our result here is consistent with the balancing test set out in People v. Doe (1977), 55 Ill. App. 3d 811. In Doe, the court stated that a balance must be struck between the purpose of the attorney-client privilege and the public interest in obtaining disclosure of evidence. (Doe, 55 Ill. App. 3d at 814.) The court favored disclosure of Doe’s identity because there was “no suggestion” that the client would be incriminated or in any way harmed if his identity was revealed. (55 Ill. App. 3d at 814-15.) Thus, there was no reason to deviate from the general rule that the client’s identity is not privileged.

In the present case, the client’s identity was a confidential communication of which disclosure could result in “substantial harm” to him. Thus, this is one of the unique and unusual cases in which an exception to the general rule favoring disclosure must be recognized.

Having determined that an exception to the general rule applies in this case, we must next address the question of whether a waiver of the privilege occurred when the client attempted to reveal his identity but was unsuccessful in doing so. We answer this question in the affirmative and hold that the client did waive his claim of privilege with respect to his identity under the specific facts of this case.

We note that the attorney-client privilege can be waived, but only by the client. (People v. Mudge (1986), 143 Ill. App. 3d 193, 195.) This is so because the privilege belongs to the client, and not to the attorney. (People v. Duarte (1979), 79 Ill. App. 3d 110, 125; People v. Marcofsky (1920), 219 Ill. App. 230, 232; M. Graham, Cleary & Graham's Handbook of Illinois Evidence §505.6, at 259 (4th ed. 1984).) Plaintiff contends that “John Doe never intended his identity to be confidential. He thereby waived any privilege.” Plaintiff points out that Fawell conferred with John Doe on the night in question and, as a result, prepared a short written statement to present to the sheriff’s office concerning the automobile accident in order to comply with section 11 — 401(b) of the Code. This section provides, in pertinent part:

“Any person who has failed to stop or to comply with said requirements shall, within 3 hours after such motor vehicle accident, *** report the place of the accident, the date, the approximate time, the driver’s name and address, the registration number of the vehicle driven, and the names of all other occupants of such vehicle, at a police station or sheriff’s office near the place where such accident occurred.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 95V2, par. ll-401(b).)

Plaintiff argues that John Doe waived any possible privilege as to his identity because he never intended his identity to be confidential. Plaintiff points out that John Doe attempted to comply with the reporting provisions contained in the Code, which by its very terms would have required John Doe to disclose his name to the sheriff’s deputy. Plaintiff asserts that John Doe’s identity did not originate in a confidence and with an understanding that it would not be disclosed. (See Consolidated Coal Co. v. Bucyrus-Erie Co. (1982), 89 Ill. 2d 103, 119.) Plaintiff makes this waiver argument despite the fact that no report identifying John Doe was ever successfully made to the sheriff’s department.

Fawell disagrees, arguing instead that there can be no waiver of the privilege because John Doe was under the “compulsion” of section 11 — 401(b) of the Code to make the report after the accident. Fawell points out that John Doe attempted to file the report only to avoid “becoming a convicted felon.” Fawell asserts that the attempt to file the report was involuntary and, furthermore, that no report divulging John Doe’s identity was ever accepted.

In support thereof, Fawell cites New Jersey v. Portash (1979), 440 U.S. 450, 59 L. Ed. 2d 501, 99 S. Ct. 1292. In Portash, the defendant was granted immunity to testify before a grand jury. Thereafter, he was charged with a criminal offense. The trial court ruled that the State could use the immunized grand jury testimony to impeach the defendant’s credibility at trial. The Supreme Court disagreed, holding that testimony given in response to immunity is “the essence of coerced testimony.” (Portash, 440 U.S. at 459, 59 L. Ed. 2d at 510, 99 S. Ct. at 1297.) The Court noted that the testimony was “compelled” and thus could not be used to impeach him at a later criminal trial.

Fawell contends that Portash supports his position because the statute in the case at bar also contains an immunity clause. This clause states:

“No report made as required under this paragraph shall be used, directly or indirectly, as a basis for the prosecution of any violation of paragraph (a).” (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 401(b).)

In order to encourage compliance with this section, the legislature has determined that a person who fails to comply “shall be guilty of a Class 4 felony.” Ill. Rev. Stat. 1987, ch. 951lz, par. 11 — 401(d).

Fawell also points out that other courts have determined that a waiver of the attorney-client privilege does not occur when the testimony is involuntarily given. In Simpson v. Braider (D.D.C. 1985), 104 F.R.D. 512, the Federal magistrate pointed out that testimony given pursuant to a subpoena, to defend against criminal charges, or “under circumstances indicating there was realistically no voluntary disclosure” should not result in a waiver of the attorney-client privilege. Simpson, 104 F.R.D. at 523; see also Transamerica Computer Co. v. International Business Machines Corp. (9th Cir. 1978), 573 F.2d 646, 651 (privilege waived only if the disclosure of confidential material is “voluntary and not compelled”).

We find Portash and Simpson to be distinguishable from the specific facts in the present case. Initially, we note that Simpson involved a waiver question in the context of the physician-patient privilege and did not involve an attorney-client relationship like that present in the case at bar. Furthermore, Portash did not involve the attorney-client privilege, but instead was concerned with waiver under a fifth and fourteenth amendment analysis.

Notwithstanding these distinctions, we also note that ornease does not involve testimony given pursuant to immunity at a grand jury proceeding or testimony pursuant to a subpoena. In these instances, the testimony was compelled because the person so testifying had no reasonable way to avoid the grand jury or subpoena. Instead, our case involves John Doe’s attempt, presumably pursuant to Fawell’s advice, to report the accident to the sheriff’s office. Thus, it is evident that John Doe intended, at least on the night in question, that his name be revealed in order to comply with section 11 — 401(b) of the Code. John Doe chose to comply with the reporting provisions of this section in order to avoid being prosecuted for a felony. The statute itself did not compel him to do so. This situation is unlike the above-mentioned cases in that the client here intended to disclose the information and was not forced or compelled to do so.

Furthermore, it is important to point out that the reporting provisions of section 11 — 401(b) of the Code do not require the driver of the automobile to relate the circumstances or details of the accident itself. This section simply requires a driver to identity himself or herself without providing any information which may indicate that a criminal offense had actually occurred.

With respect to Fawell’s argument that the reporting requirement “compelled” John Doe into making a report, we note that our supreme court has determined, in People v. Lucus (1968), 41 Ill. 2d 370, that requiring a driver to reveal his name and address does not infringe upon the driver’s “guaranty against self-incrimination.” (Lucus, 41 Ill. 2d at 373-74.) The court noted that the act of identification, by itself, in no way relates to the circumstances of the accident or provides information concerning the details of the event. (41 Ill. 2d at 374.) While Lucus involved the construction of section 135 of the Code (now codified as section 11 — 403 (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 403)) and also involved a fifth amendment claim as opposed to an attorney-client privilege analysis, we find its reasoning concerning the requirement of providing a driver’s name and address persuasive under the facts in the case at bar.

Furthermore, our supreme court has also determined that matters a client intends to disclose to third parties, who are not agents of either the attorney or client, are not privileged. (In re Himmel (1988), 125 Ill. 2d 531, 542; People v. Werhollick (1970), 45 Ill. 2d 459, 462; see also People v. Adams (1983), 116 Ill. App. 3d 315, 322 (information intended to be revealed to third parties not privileged).) Given that John Doe intended to disclose the information concerning his identity to a third party (Deputy Paine), we find that any privilege he had with respect to his identity was waived.

We next address the issue of whether it would have been unethical for Fawell to reveal the identity of his client in this case. Fawell contends that John Doe’s identity is a “confidence” or “secret” which cannot be disclosed under the Code of Professional Responsibility. The ISBA devotes a considerable portion of its brief in support of Fawell’s position on this issue.

According to Canon 4 of the Code of Professional Responsibility, which our supreme court has adopted, an attorney “should preserve the confidences and secrets of a client.” (107 Ill. 2d Canon 4.) A “confidence” is defined as “information protected by the attorney-client privilege under applicable law,” while a “secret” involves “other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing to or would likely be detrimental to the client.” 107 Ill. 2d R. 4 — 101(a).

• 13 We have already determined that John Doe’s identity in this case was privileged information. Thus, had there been no waiver of the privilege with respect to this information, Fawell would not be forced to disclose his client’s identity. Our determination on this issue would certainly classify John Doe’s identity, but for the waiver, as a “confidence” pursuant to Rule 4 — 101(a). However, because we have already determined that John Doe waived the privilege with respect to his identity, we do not believe that his identity can be properly classified as a “confidence.”

Furthermore, even if we were to find that John Doe’s identity was a “secret,” we still do not believe that it would have been unethical for Fawell to reveal John Doe’s identity. Plaintiff correctly points out that an exception to Rule 4 — 101(a) exists in this case because Fawell is under a court order to reveal his client’s identity. Rule 4 — 101(d)(2) states that an attorney may reveal “confidences or secrets when permitted under disciplinary rules or required by law or court order." (Emphasis added.) (107 Ill. 2d R. 4 — 101(d)(2).) Thus, revealing John Doe’s identity, even though it may be classified as a confidence or secret, would not subject Fawell to discipline for violating the Code of Professional Responsibility.

We agree with the ISBA’s position that even though a court order has directed Fawell to reveal John Doe’s identity, the decision is still within Fawell’s discretion based on our Code of Professional Responsibility. This is the case because Rule 4 — 101(d)(2) states that an attorney “may,” and not “shall,” disclose client confidences when under a court order to do so. The ISBA points out that ISBA Opinion No. 538 (August 27, 1976) addressed a similar issue and determined that the attorney’s decision whether to disclose the client’s identity was discretionary, with neither decision violating the Code of Professional Responsibility.

The trial court was aware of the inherent conflict Fawell faced between complying with the court order and not revealing any confidences of his client. The court stated:

“I think the Court must by its inherent power — and I do this with reluctance. I have a great deal of respect for Mr. Jeff Fa-well and both counsel that appear before me.
By the same token, we have a difference of opinion. And that’s all been announced, even with that great respect I have for him, Mr. Fawell, Jeffrey Fawell.
However, I must enforce my orders. * * *
I know Mr. Fawell is an honorable lawyer ***.
* * *
*** I do this with all due respect to Mr. Fawell. * * *
I know it’s done as a difference of opinion.”

We also realize the predicament Fawell is faced with in this case as he attempts to harmonize his ethical responsibility to his client and his duty as an officer of the court. It is our opinion that, given the waiver of the client's identity in this case, Fawell’s duty to obey the court order, at least with respect to question number one, must supersede his perceived ethical duty to his client to keep the identity a “secret.” Thus, we hold that the trial court properly ordered Fawell to answer the first question. By answering this question, Fawell will not be violating the Code of Professional Responsibility.

We must next address the propriety of the other question at issue in this appeal. Question number three asked Fawell to reveal what he told Deputy Paine with reference to the location of the accident. The answer to this question is clearly not protected by the attorney-client privilege. The question, by its very terms, asks Fawell to reveal information which he disclosed to a third party (Deputy Paine). Thus, even if this information was obtained through confidential communications with John Doe, it is evident that the disclosure to the third party, who was not the agent of the client or Fawell, resulted in the waiver or destruction of the privilege. (Werhollick, 45 Ill. 2d at 462; In re Langswager (N D. Ill. 1975), 392 F. Supp. 783, 786; see also Spencer v. Burns (1952), 413 Ill. 240, 248 (“communications made by a client to an attorney for the purpose of being disclosed by him to others do not fall within the rule of privilege”).) The justification for this rule is that communications are not considered to be made in confidence when they are intended to be disclosed to a third party. (Henderson v. National R.R. Passenger Corp. (N.D. Ill. 1986), 113 F.R.D. 502, 509; Suburban Sew ’n Sweep, Inc. v. Swiss-Bernina, Inc. (N.D. Ill. 1981), 91 F.R.D. 254, 258-59.) Absent any attorney-client privilege with respect to this question, we find no error in the trial court’s order requiring Fawell to answer the question.

In sum, we hold that the trial court properly ordered Fawell to answer questions one and three. We need not address the propriety of questions two and four due to the fact that plaintiff waived consideration of these questions during oral argument in this case.

We must next address the final issue in this case: namely, whether the contempt order violated Fawell’s due process rights and whether the sentence imposed was excessive. Fawell argues that he was not notified as to the charges against him because there was no citation or charge filed against him. Fawell also asserts that he was unable to present an appropriate defense and was not proved guilty beyond a reasonable doubt. In order to address Fawell’s due process argument, we must first determine what type of contempt is involved in this case.

Criminal contempt is conduct which is directed against the dignity and authority of the court. (People ex rel. Kazubowski v. Ray (1971), 48 Ill. 2d 413, 416, cert. denied (1971), 404 U.S. 818, 30 L. Ed. 2d 118, 92 S. Ct. 78; Central Production Credit Association v. Kruse (1987), 156 Ill. App. 3d 526, 531.) In comparison, civil contempt is coercive in nature and usually consists of failing to comply with a court order. (Kazubowski, 48 Ill. 2d at 416; In re Estate of Maslowe (1985), 133 Ill. App. 3d 1043, 1046.) This case involves civil contempt because Fawell’s contempt was based upon his failure to comply with a court order, which could be purged by his compliance with the terms of the order. See People v. Boclair (1987), 119 Ill. 2d 368, 373; People v. Rodriguez (1987), 162 Ill. App. 3d 149, 153-54.

We must also determine whether the contempt in this case was direct or indirect. Direct contempt arises from acts that are committed in the court’s presence, while indirect contempt arises from acts that occur outside the presence of the court. (Central Production, 156 Ill. App. 3d at 531; People v. Patrick (1980), 83 Ill. App. 3d 951, 954.) In the present case, the trial court ordered Fawell to “answer the questions before 4:30 this afternoon.” The court then continued the matter to 9:30 a.m. the following day “to find out what happened.” Thus, the question of whether Fawell complied with the order involved circumstances existing outside the presence of the court, making this contempt indirect.

Having determined that this case involves indirect civil contempt, we must next decide whether Fawell’s due process rights were violated. Ordinarily, the alleged contemnor in an indirect contempt situation is entitled to notice, a fair hearing, and an opportunity to be heard. (Weglarz v. Bruck (1984), 128 Ill. App. 3d 1, 8; Sunset Travel, Inc. v. Lovecchio (1983), 113 Ill. App. 3d 669, 675.) However, when the alleged contemnor admits such an indirect contempt in court, it may be punished as a direct contempt. In re Estate of Melody (1969), 42 Ill. 2d 451, 453.

This is precisely the situation in the case at bar. The trial court asked Fawell, “Have you answered the questions?” to which Fa-well’s attorney replied, “No, he has not, Judge.” Fawell then agreed that he did not answer the questions, even though he understood what the court order required him to do. Fawell’s attorney then told the trial court that “[h]e is not going to answer them.” Thus, this is an instance where the trial court properly summarily punished Fawell even though the contemptuous conduct occurred out of the court’s presence, given that Fawell admitted in open court that he would not comply with the court order. (See People v. Pomeroy (1950), 405 Ill. 175, 180.) We find no violation of Fawell’s due process rights under these circumstances.

We next address the propriety of the sentence imposed in this case. Fawell, along with the Du Page County Bar Association and the Du Page Association of Women Lawyers, contends that the $l,000-per-day fine was excessive given the importance of the issue involved and the substantial difference of opinion on this issue. The power to punish for contempt rests within the sound discretion of the trial court, and its decision will not be overturned absent a clear abuse of discretion. (In re Estate of Wernick (1988), 176 Ill. App. 3d 153, 156, cert. denied (1989), 493 U.S. 809, 107 L. Ed. 2d 19, 110 S. Ct. 50; Central Production, 156 Ill. App. 3d at 531.) Given the underlying statute of limitations problem in the civil lawsuit, it is clear that the trial court imposed a severe fine because it was concerned with having Fawell comply with the order in a short period of time. However, the statute of limitations has now run in the civil lawsuit, and thus the immediacy which the trial court was properly concerned with is no longer at issue in this case. Given that the trial court determined that Fawell’s refusal to answer the questions was not done in a contemptuous manner, but instead was done based on a difference of opinion, we agree with Fawell that the amount of the fine should be reduced. Under these unusual circumstances, we determine that the fine of $1,000 per day should be reduced to $100 per day, as we now expect Fawell to comply with the court order.

For the above-stated reasons, the order of the circuit court of Du Page County is affirmed with respect to questions one and three. Fa-well is directed to answer these questions. The order with respect to questions two and four is vacated, as plaintiff determined not to pursue these questions on appeal. We have also reduced Fawell’s fine to $100 per day should Fawell refuse to answer questions one and three.

Affirmed in part, vacated in part, and modified in part.

REINHARD, J., concurs.

JUSTICE WOODWARD,

specially concurring:

I agree with the majority that the facts in this case invoke the “substantial harm” exception to the general rule that disclosure of a client’s name is not protected by the attorney-client privilege. Under the facts of this case, the attorney-client privilege has been waived. Succinctly, John Doe waived the attorney-client privilege of his own accord and with the consent and approval of attorney Fawell when he accompanied Fawell to the sheriff’s office where Fawell attempted to file the required report.

Fawell stated that his client, John Doe, accompanied him to the sheriff’s office, which was a public building, and the route to get to the building was exposed to the view of anyone present. Fawell stated that his client was standing in the general vicinity of where he was standing when he attempted to give the report to deputy sheriff Paine. Fawell stated that he did indicate to Paine that his client was with him by a gesture of his hand. Fawell described the window that Paine was behind when he attempted to submit the report. It was similar to a walk-up bank window with thick glass and a U-shaped opening under the window.

In his argument to this court, Fawell draws a distinction between acts that are “compelled” and those that are “voluntary.” Although the majority rejected this argument, I agree with Fawell that since the making of the report was required by section 11 — 401(b), it was “compelled” testimony and, therefore, did not waive the attorney-client privilege. (See New Jersey v. Portash (1979), 440 U.S. 450, 59 L. Ed. 2d 501, 99 S. Ct. 1292; Simpson v. Braider (D.D.C. 1985), 104 F.R.D. 512.) However, nothing “compelled” John Doe to accompany Fawell to the sheriff’s office, a public building, to make the report.

The purpose behind section 11 — 401(b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 401(b)) is to obtain information. Nothing in the language of that statute prohibits a third party, such as an attorney, from making the report on behalf of a client. Indeed, that is exactly what Fawell was attempting to do when he began to read the statement to Deputy Paine. By so doing, Fawell acknowledged that his client’s presence at the sheriff’s office was unnecessary and hence not “compelled” but “voluntary.” The fact that Deputy Paine did not see John Doe is irrelevant since Fawell testified that John Doe accompanied him to the sheriff’s office; therefore, there was no intent by Fawell or John Doe not to disclose John Doe’s identity. Thus, although the making of the report was required by the statute and, therefore, “compelled,” John Doe’s presence at the sheriff’s office was voluntary and with his attorney’s consent. These facts waive the attorney-client privilege.


source: Caselaw Access Project

author: JUSTICE GREEN JUSTICE STEIGMANN,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL BURTON, Defendant-Appellant.
    Fourth District
    No. 4-89-0794
    Opinion filed August 16, 1990.
    STEIGMANN, J., concurring in part and dissenting in part.
    Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Richard E. Goff, State’s Attorney, of Clinton (Kenneth R. Boyle and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

Section 4 — 3 of the Criminal Code of 1961 (Code), inter alia, states the following:

“(a) A person is not guilty of an offense, other than an offense which involves absolute liability, unless, with respect to each element described by the statute defining the offense, he acts while having one of the mental states described in Sections 4 — 4 through 4 — 7.
(b) *** If the statute does not prescribe a particular mental state applicable to an element of an offense (other than an offense which involves absolute liability), any mental state defined in Sections 4 — 4, 4 — 5 or 4 — 6 is applicable.” Ill. Rev. Stat. 1987, ch. 38, pars. 4 — 3(a), (b).

Sections 4 — 4 through 4 — 7 of the Code contain provisions pertaining to intent (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 4), knowledge (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 5), recklessness (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 6), and negligence (Ill. Rev. Stat. 1987, ch. 38, par. 4— 7). The primary issue in this case concerns the question of whether a defendant is entitled to have the jury instructed as to the necessity of the State proving beyond a reasonable doubt the existence of each of the mental states implied by section 4 — 3(b) of the Code. We hold such instruction is not necessarily required.

On January 9, 1989, an indictment was returned in the circuit court of De Witt County charging defendant Paul Burton with various counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(b)(1)) on various dates between January 1986 and September 1988. After a trial by jury, defendant was convicted on June 30, 1989, of three counts of aggravated criminal sexual assault and one count of aggravated criminal sexual abuse. (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 16(c)(l)(i).) On September 6, 1989, the court sentenced defendant to concurrent terms of imprisonment of 10 years for each such assault and 5 years for the abuse conviction. Defendant has appealed.

The jury was instructed in part concerning (1) the definitions of the elements of aggravated criminal sexual assault (Illinois Pattern Jury Instructions, Criminal, Nos. 11.33, 11.65 (2d ed. Supp. 1989) (IPI Criminal 2d (Supp. 1989))); and (2) the elements the State must prove in order to convict for that offense (IPI Criminal 2d No. 11.35 (Supp. 1989)). The defense objected to those instructions, because they did not refer to the mental state implied by section 4 — 3(b) of the Code to be an element of aggravated criminal sexual assault. Defendant maintains on appeal this ruling entitles him to a new trial as to the aggravated criminal sexual assault convictions. He also asserts reversible error resulted when the circuit court refused his motion to dismiss the assault charges. This motion was made after the State had filed a response to defendant’s request for a bill of particulars. Defendant maintains this response was too vague. We disagree with defendant’s contentions and affirm.

No contention is made that the evidence did not support the verdicts. Evidence was presented that defendant, a man in his fifties, on several occasions, within the time alleged in the indictment, placed his penis in the mouths of, and his fingers in the vaginas of, two girls who were under the age of 13 years at the times pertinent.

We consider first, the main issue concerning the propriety of the instructions. Section 12 — 14(b)(1) of the Code provides:

“The accused commits aggravated criminal sexual assault if:
(1) the accused was 17 years of age or over and commits an act of sexual penetration with a victim who was under 13 years of age when the act was committed ***.” (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(b)(1).)

Section 12 — 12(f) of the Code states:

“ ‘Sexual penetration’ means any contact, however slight, between the sex organ of one person and the sex organ, mouth or anus of another person, or any intrusion, however slight, of any part of the body of one person or of any animal or object into the sex organ or anus of another person, including but not limited to eunnilingus, fellatio or anal penetration. Evidence of emission of semen is not required to prove sexual penetration.” (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 12(f).)

Knowledge by the accused of the age of the victim is not an element of the aggravated criminal sexual assault charged here. People v. Sanders (1989), 191 Ill. App. 3d 483, 548 N.E.2d 103; People v. Barfield (1989), 187 Ill. App. 3d 257, 543 N.E.2d 157.

Indeed, the statutory provisions for the aggravated criminal sexual assaults for which defendant was charged make no mention of any mental states for the elements involved. Section 4 — 9 of the Code states:

“A person may be guilty of an offense without having, as to each element thereof, one of the mental states described in Sections 4 — 4 through 4 — 7 if the offense is a misdemeanor which is not punishable by incarceration or by a fine exceeding $500, or the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described.” Ill. Rev. Stat. 1987, ch. 38, par. 4 — 9.

Aggravated criminal sexual assault is not a misdemeanor (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(c)), nor does the statute defining that offense clearly indicate a legislative purpose to impose absolute liability for the conduct described. Accordingly, by the terms of section 4— 3(a) of the Code, the State was required to prove a mental state for each of the elements of the offense of aggravated criminal sexual assault even though no such mental states were expressly set forth in the statutory language defining the offense.

Defendant’s theory he was entitled to instructions setting forth the required mental states which the State had to prove to convict him of the offense of aggravated criminal sexual assault is based upon the general requirement that the jury be instructed as to each element of each offense charged. (People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141; People v. Ogunsola (1981), 87 Ill. 2d 216, 429 N.E.2d 861.) He also maintains failure to set forth the required mental state in the instructions in issue deprived him of due process, because the instructions relieved the State of proving beyond a reasonable doubt each element of the offense charged. Francis v. Franklin (1985), 471 U.S. 307, 85 L. Ed. 2d 344, 105 S. Ct. 1965; Sandstrom v. Montana (1979), 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450.

This court has recently rejected defendant’s theory requiring instructions as to mental states, implied to be part of an offense by section 4 — 3 of the Code, in People v. Avant (1989), 178 Ill. App. 3d 139, 532 N.E.2d 1141, and People v. Talley (1988), 177 Ill. App. 3d 170, 531 N.E.2d 1139. (See also People v. Leonard (1988), 171 Ill. App. 3d 380, 526 N.E.2d 397, cert. denied (1989), 490 U.S. 1008, 104 L. Ed. 2d 162, 109 S. Ct. 1647; People v. Ortiz (1987), 155 Ill. App. 3d 786, 508 N.E.2d 490.) The rationale of these rulings is that the mental states there implied by section 4 — 3 of the Code were in the nature of general criminal mental states, distinguished from specific mental states about which the jury must be advised in instructions defining an offense or describing the elements the State must prove.

We address this subject again to consider what, if any, effect the decision by the Illinois Supreme Court in People v. Terrell (1989), 132 Ill. 2d 178, 547 N.E.2d 145, raised by the dissent, has upon the prior precedent. There, a defendant convicted, as here, of aggravated criminal sexual assault argued he was deprived of equal protection when the penalty for that offense was more severe than that for aggravated criminal sexual abuse. (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 16(e).) The assault offense is a Class X felony while the abuse offense is only a Class 2 felony. The definition of the abuse offense sets forth mental states of intent or knowledge while, as we have indicated, no mental state is specifically described as an element of the assault offense. In Terrell, that defendant argued that lack of a stated mental state for the assault offense inherently made that offense less culpable than one requiring intent or knowledge. The supreme court rejected that argument, pointing out that section 4 — 3(a) of the Code made intent, or knowledge, the mental state for aggravated criminal sexual assault.

A highly respected authority on criminal law has suggested mental states involved in criminal cases can better be analyzed with “ciarity” by “abandoning the ‘specific intent’ — ‘general intent’ terminology” and notes the Model Penal Code does so. (W. LaFave & A. Scott, Substantive Criminal Law §3.5(e), at 316 (1986), citing Model Penal Code §2.02, Comment, at 231 n.3 (1985).) Some argument can be made that article 4 of the Code was intended to do away with the difference between general and specific mental states, particularly ■with regard to intent. The decision in Terrell would be consistent with such a theory. If the “specific intent” — “general intent” dichotomy has been abolished, the rationale for the previously cited appellate court decisions making unnecessary instructions defining mental state in certain situations is invalid.

However, the Illinois Supreme Court has not treated article 4 of the Code as changing the concept of specific and general criminal intent. In People v. Gold (1967), 38 Ill. 2d 510, 516, 232 N.E.2d 702, 706, decided under the Code, the court held that as the statutory definition for rape set forth no mental state, the offense was “a general-intent crime” which could be properly alleged in the language of the statute. In People v. White (1977), 67 Ill. 2d 107, 365 N.E.2d 337, the court concluded that, although not so stated in the Code, the intent to permanently deprive the victim of property was still an element of robbery. Accordingly, because the offense was one requiring specific intent, voluntary intoxication was still a defense to such a charge. Nineteen months later, in People v. Banks (1979), 75 Ill. 2d 383, 388 N.E.2d 1244, White was overruled. The court concluded the intent to permanently deprive the victim of property was not an element of robbery and need not be alleged. The offense stated did not require any specific type of intention.

Notably, at the time of White and Banks, as now, robbery consists of the “[taking of] property from the person or presence of another by the use of force or by threatening the imminent use of force.” (Ill. Rev. Stat. 1989, ch. 38, par. 18 — 1.) At all times pertinent, such a robbery has become an armed robbery when committed while the robber is “armed with a dangerous weapon.” (Ill. Rev. Stat. 1989, ch. 38, par. 18 — 2.) The White court had concluded the offense included the unstated factor that the robber acted with the intent to permanently deprive the victim of the property taken, and that was an element of the offense upon which the jury must be instructed. The Banks court decided that element was no longer a part of the offense. Had the intent to permanently deprive the victim of property been an unstated element of the offense, that offense would have been a specific-intent offense regardless of whether that specific type of intent was stated in the Code definition of the offense.

Section 4 — 3(a) of the Code has always required that for a non-absolute liability offense to occur, the offender must act “with respect to each element described by the statute defining the offense” with one of the mental states set forth in sections 4 — 4 through 4 — 7 of the Act. (Ill. Rev. Stat. 1989, ch. 38, par. 4 — 3(a).) However, the White court did not hold that intoxication would negate the defendant’s knowing or intentional use of force or threat of use of force, or the defendant’s knowledge that he was armed with a dangerous weapon. The Banks court did not say or indicate that the charge need allege the implied mental states for those elements of the offense of armed robbery. Thus, the recognition by the court of the difference between (a) mental states set forth in very specific language in statutes creating offenses or generally recognized to be very specific, and (b) mental states implied by section 4 — 3 of the Code to be either intent, knowledge, recklessness, or negligence clearly supports the decisions of this court in Avant and Talley.

Very lengthy instructions would be required if instructions always need be given concerning the unstated mental states implied by section 4 — 3 concerning each element of each offense charged. Take, for example, the offense of armed robbery. (Ill. Rev. Stat. 1989, ch. 38, par. 18 — 2.) The jury would have to be instructed that for the offense to occur: (1) the robber must have known he was taking property or intended the property to be taken; (2) the robber intended to use force or knew he was using force, or threatening imminent force; and (3) the robber knew he was carrying on his person, or armed with, a dangerous weapon. In almost every offense, the statute providing for the offense is silent as to the mental state required for some element of the offense.

Usually, the mental states implied by section 4 — 3 of the Code are mental states which almost always accompany the acts alleged. The Terrell court indicated that to be the situation there. (Terrell, 132 Ill. 2d at 210-11, 547 N.E.2d at 159.) In People v. Talley (1988), 177 Ill. App. 3d 170, 173, 531 N.E.2d 1139, 1141, this court indicated that the hallmark of a general intent crime was that the mental state required ordinarily followed the element of the conduct prohibited. The case of Louisiana v. Daniels (1958), 236 La. 998, 1007, 109 So. 2d 896, 899, was cited.

As with the robbery offenses, the mental state implied here by section 4 — 3 of the Code would necessarily accompany the prohibited elements of the offense of sexual assault. Defendant would have been extremely unlikely to have inserted his penis in the mouths of the two girls without intending to do so and knowing he did. While an adult caring for and bathing a small child might unintentionally and unknowingly place a finger in such a position as to create the slight penetration into the vagina or anus of a child described in section 12— 12(f) (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 12(f)) of the Code, the definition of aggravated criminal sexual assault would surely be given a commonsense interpretation to make such conduct innocent. Absent that type of situation, the Terrell opinion makes clear that the mental state required for aggravated criminal sexual assault based on such penetration would naturally flow from the commission of the prohibited acts.

We conclude Terrell does not require us to change our ruling in regard to the inclusion in instructions of the general criminal mental states implied by section 4 — 3 of the Code. However, as we mentioned in regard to the cases of White and Banks, some mental states involved in offenses, although not specifically mentioned in the statute defining the offense, may be implied in the offense and be specific enough to require instruction to the jury. Under some circumstances, the mental state implied by section 4 — 3 of the Code may possibly be so specific as to require instruction. See People v. Grant (1981), 101 Ill. App. 3d 43, 427 N.E.2d 810.

Here, the implied mental states were not specific, and the circuit court did not err in giving the pattern instructions, which did not set forth those mental states.

Even though defendant was originally charged in count III with aggravated criminal sexual assault, the jury found him guilty of the included offense of aggravated criminal sexual abuse. As we previously noted, defendant is challenging his conviction on that count because of the State’s response to defendant’s bill of particulars in which the State asserts that it can provide no more specific information than that the offense charged in count III occurred sometime between January 1986 and September 1988. Defendant argues that this range of 33 months in the State’s response denied him due process of law, because defendant had a possible alibi defense which this 33-month range made it impossible for him to present. Accordingly, defendant argues that the trial court erred in denying his motion to dismiss count III. We disagree.

We begin our analysis by noting a rather striking inconsistency in defendant’s argument. If he cannot tell from the State’s response on which particular day within a 33-month period he is supposed to have committed the crime charged, then how can he possibly know he “has a possible alibi defense” which is being defeated because of the State’s uncertainty? By pointing out this inconsistency, we do not mean to suggest that a defendant who receives a response no more precise than this suffers no prejudice to the preparation of his defense; instead, we are simply pointing out the difficulty of determining with specificity just what that prejudice may be in a given case. Furthermore, the fact that the defendant may have suffered some prejudice does not, without more, justify dismissing the charges against him. This is particularly true where, as here, children are the alleged victims of sex abuse. To hold otherwise would be to jeopardize large numbers of such prosecutions, particularly with very young children, simply because they could not provide specific dates and times.

As long as the crime charged allegedly occurred within the applicable statute of limitations period, the State should be required to do no more than provide the defendant with the best information it has regarding when the offense took place. (People v. Patrick (1967), 38 Ill. 2d 255, 260, 230 N.E.2d 843, 845.) We reaffirm that the precise date the offense was allegedly committed is not an element of the offense. People v. Cregar (1988), 172 Ill. App. 3d 807, 821, 526 N.E.2d 1376, 1386.

For the reasons stated, we find no error in the trial court’s denial of defendant’s motion to dismiss count III.

Accordingly, we affirm the judgments of conviction and sentence.

Affirmed.

McCullough, j., concurs.

JUSTICE STEIGMANN,

concurring in part and dissenting in part:

I concur in that portion of the majority opinion which holds that defendant was not denied due process of law because the State could not be more specific in its response to defendant’s request for a bill of particulars than to provide a range of 33 months in which the offense of aggravated criminal sexual abuse occurred.

I respectfully dissent from that portion of the majority opinion which holds that the jury did not need to be instructed that the State must prove defendant had the mental state of intent, knowledge, or recklessness in order to convict him of aggravated criminal sexual assault.

Even though the information charging defendant with aggravated criminal sexual assault alleged he committed that offense by “knowingly” committing an act of sexual penetration upon the victims, the following instructions relating to that charge were given to the jury over defendant’s objection:

“A person commits the offense of aggravated criminal sexual assault when he:
commits an act of sexual penetration with a victim; and
was 17 years of age or older and the victim was under 13 years of age when the act was committed.”

See IPI Criminal 2d No. 11.33, at 171-72 (Supp. 1989).

“To sustain the charge of aggravated criminal sexual assault, the State must prove the following propositions:
First: That the defendant committed an act of sexual penetration upon [L.A.H.]; and
Second: That the defendant was 17 years of age or older and that [L.A.H.] was under 13 years of age when the act was committed.
If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.”

See IPI Criminal 2d No. 11.35, at 176-77 (Supp. 1989).

“To sustain the charge of aggravated criminal sexual assault, the State must prove the following propositions:
First: That the defendant committed an act of sexual penetration upon [A.M.]; and
Second: That the defendant was 17 years of age or older and that [A.M.] was under 13 years of age when the act was committed.
If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.”

See IPI Criminal 2d No. 11.35, at 176-77 (Supp 1989).

“The term ‘sexual penetration’ means any contact, however slight, between the sex organ of one person and the mouth of another person, any intrusion, however slight, of any part of the body of one person into the sex organ of another person, including but not limited to cunnilingus, fellatio, or anal penetration. Evidence of emission of semen is not required to prove sexual penetration.”

See IPI Criminal 2d No. 11.65, at 192 (Supp. 1989).

“A person commits the offense of aggravated criminal sexual abuse when he is 17 years of age or older and commits an act of sexual conduct with a victim who was under 13 years of age when the act was committed.”

See IPI Criminal 2d No. 11.38, at 181-83 (Supp. 1989).

“To sustain the charge of aggravated criminal sexual abuse, the State must prove the following propositions:
First: That the defendant committed an act of sexual conduct with [L.A.H.]; and
Second: That the defendant was 17 years of age or older; and
Third: That [L.A.H.] was under 13 years of age when the act was committed.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.”

See IPI Criminal 2d No. 11.40, at 186-87 (Supp. 1989).

“The term ‘sexual conduct’ means any intentional or knowing touching or fondling by the accused, either directly or through the clothing, of any part of the body of a child under 13 years of age, for the purpose of sexual gratification or arousal of the victim or the accused.”

See IPI Criminal 2d No. 11.64, at 192 (Supp. 1989).

Defense counsel objected to all of the aggravated criminal sexual assault instructions (IPI Criminal 2d No. 11.35, at 176-77 (Supp. 1989)) on the ground that they failed to include an element of the offense, namely, that the defendant had acted “knowingly.” The court overruled the objection. Defendant preserved the issue by including it in his motion for a new trial, which the trial court denied.

On appeal, defendant concedes that the definition of aggravated criminal sexual assault, as set forth in section 12 — 14 of the Code, contains no specific mental state (Ill. Rev. Stat. 1987, ch. 38, par. 12— 14). He argues, however, that sections 4 — 3 and 4 — 9 of the Code (Ill. Rev. Stat. 1987, ch. 38, pars. 4 — 3, 4 — 9), when read in conjunction, require that a mental state of acting intentionally, knowingly, or recklessly must be alleged and proved when aggravated criminal sexual assault is charged.

Section 4 — 3 of the Code, inter alia, states the following:

“(a) A person is not guilty of an offense, other than an offense which involves absolute liability, unless, with respect to each element described by the statute defining the offense, he acts while having one of the mental states described in Sections 4 — 4 through 4 — 7.
(b) *** If the statute does not prescribe a particular mental state applicable to an element of an offense (other than an offense which involves absolute liability), any mental state defined in Sections 4 — 4, 4 — 5 or 4 — 6 is applicable.” (Ill. Rev. Stat. 1987, ch. 38, pars. 4 — 3(a), (b).)

Sections 4 — 4 through 4 — 7 of the Code contain provisions pertaining to intent (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 4), knowledge (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 5), recklessness (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 6), and negligence (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 7).

Section 4 — 9 of the Code reads as follows:

“A person may be guilty of an offense without having, as to each element thereof, one of the mental states described in Sections 4 — 4 through 4 — 7 if the offense is a misdemeanor which is not punishable by incarceration or by a fine exceeding $500, or the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described.” Ill. Rev. Stat. 1987, ch. 38, par. 4 — 9.

The majority opinion specifically acknowledges that aggravated criminal sexual assault is not a misdemeanor (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(c)), and that the statute defining that offense does not “clearly [indicate] a legislative purpose to impose absolute liability for the conduct described.” (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 9.) Given these facts and the recent supreme court decision in Terrell, I believe that defendant’s argument is correct.

In Terrell, the supreme court construed the foregoing sections of the Code in the context of an aggravated criminal sexual assault case and stated the following:

“The defendant argues that the aggravated criminal sexual assault statute *** does not require an unlawful purpose on the part of the person who commits an act of sexual penetration and, therefore, punishes innocent as well as culpable conduct. The defendant maintains that it is unreasonable and arbitrary for the legislature to punish offenses based upon an act of sexual penetration, which requires no mental state, more severely than offenses based upon an act of sexual conduct, which requires a mental state. The defendant contends that the aggravated criminal sexual assault statute therefore violates due process.
The State argues that the defendant has waived this issue by failing earlier to challenge the constitutional validity of section 12 — 14. The defendant responds that the issue is reviewable under the plain error rule. Because we find no merit in the defendant’s contentions, we need not consider whether the defendant is barred from raising them in this appeal.
In People v. Burmeister (1986), 147 Ill. App. 3d 218[, 497 N.E.2d 1212], the court considered and convincingly rejected a similar challenge to the constitutionality of the aggravated criminal sexual assault statute. Although the definition of ‘sexual penetration,’ unlike the definition of ‘sexual conduct,’ does not expressly require a mental state, the legislature clearly did not intend the aggravated criminal sexual assault statute to define a strict liability or public welfare offense. (Ill. Rev. Stat. 1985, ch. 38, par. 4 — 9.) Accordingly, a mental state of either intent or knowledge implicitly is required for sexual penetration to occur. (Ill. Rev. Stat. 1985, ch. 38, pars. 4 — 3, 4 — 4, 4— 5, 4 — 6, 4 — 9.) So construed, the aggravated criminal sexual assault statute does not punish innocent conduct or set up an unconstitutional anomaly between the greater offense of aggravated criminal sexual assault and the lesser offense of aggravated criminal sexual abuse. (People v. Burmeister (1986), 147 Ill. App. 3d 218, 224[, 497 N.E.2d 1212].) Rather, both aggravated criminal sexual assault and the lesser offense of aggravated criminal sexual abuse require an intentional or knowing act by the accused." (Emphasis added.) Terrell, 132 Ill. 2d at 208-09, 547 N.E.2d at 158.

The majority opinion recognizes that in the above language, the supreme court is “pointing out that section 4 — 3(a) of the Code made intent, or knowledge, the mental state for aggravated criminal sexual assault.” (201 Ill. App. 3d at 119.) The majority opinion nevertheless rejects defendant’s argument by drawing a distinction between (1) those offenses which have their “mental states set forth in very specific language” in the statutes defining them, and (2) those offenses for which mental states are implied by section 4 — 3 of the Code. (201 Ill. App. 3d at 121.) I do not agree that this distinction is valid under Illinois law.

The inquiry before this court is the following: What answer does the supreme court’s authoritative construction of the aggravated criminal sexual assault statute as containing a mental state require on the questions of (1) does the State need to charge that mental state, and (2) does the court need to instruct on that mental state? I believe that the answer required by Terrell to both of these questions is clearly yes.

My analysis may be summed up as follows: When the supreme court has authoritatively construed a statute as containing one of the mental states of intent, knowledge, or recklessness, then that mental state is present in the statute in question to the same extent as if the legislature had originally written in the words “intentionally,” “knowingly,” or “recklessly.”

Certainly no citation of authority is needed for the proposition that mental states, as set forth in statutory definitions provided by the legislature, must be included in instructions given to the jury. Any court would think it most odd if some burglary case went to trial and, over the objection of the defendant, the court struck the word “knowingly” from the instructions describing how the defendant entered the building in question. (IPI Criminal 2d No. 14.06, at 312 (2d ed. 1981).) This court would have no difficulty reversing that conviction and telling the trial judge to include the mental state in the instruction.

My point is that there is absolutely no difference between statute A, which contains a mental state written into it by the legislature, and statute B, which contains three alternative mental states under section 4 — 9 of the Code, as “written” into it by an authoritative construction of the supreme court. I do not understand how Illinois law permits a principled distinction between these hypothetical statutes to be drawn.

I also do not agree with the majority opinion’s efforts to resurrect the notions of “general intent” and “specific intent.” As Professor Wayne LaFave has observed in his treatise on criminal law, “greater clarity could be accomplished by abandoning the ‘specific intent’— ‘general intent’ terminology, and this has been done in the Model Penal Code.” (W. LaFave & A. Scott, Substantive Criminal Law §3.5(e), at 316 (1986).) The drafters of the Model Penal Code abandoned this terminology because “the concept of ‘general intent’ *** has been such an abiding source of confusion and ambiguity in the penal law.” Model Penal Code §2.02, Comment, at 231 n.3 (1985).

In a recent article, Professor Timothy O’Neill points out that in an effort to rid Illinois of the confusing distinction between “general intent” and “specific intent,” the Illinois legislature followed the suggestions of the Model Penal Code when the Criminal Code of 1961 was enacted. (O’Neill, Illinois’ Latest Version of the Defense of Voluntary Intoxication: Is It Wise? Is It Constitutional? 39 De Paul L. Rev. 15, 24-25 (1989) (hereinafter O’Neill).) Yet, regrettably the distinction lives on because of the courts’ reluctance to give it up. O’Neill, 39 DePaul L. Rev. at 26-29.

In my judgment, the distinction between “general intent” and “specific intent” is to the substantive criminal law what res gestae is to the law of evidence: both archaic relics, purporting to convey meaning, but in fact conveying none. Calling the term “res gestae" nonsense, Professor Michael H. Graham writes that, “Nothing short of complete abandonment of res gestae as an explanation of admissibility permits rational analysis of exceptions [to] the hearsay rule ***.” ^ Graham, Cleary & Graham’s Handbook of Illinois Evidence §803.2, at 549 (4th ed. 1984).) I suggest that nothing short of complete abandonment of the “general intent” — “specific intent” distinction permits rational analysis of the law regarding the mental states applicable to various offenses.

I further disagree with the majority opinion that the decisions of the supreme court in People v. White (1977), 67 Ill. 2d 107, 365 N.E.2d 337, and People v. Banks (1979), 75 Ill. 2d 383, 388 N.E.2d 1244, add anything to the analysis of the issue before us. Those cases both dealt with the charge of armed robbery under section 18 — 2 of the Code (Ill. Rev. Stat. 1977, ch. 38, par. 18 — 2), a charge that has as an element thereof the use of force or the threat to imminently use force. (Ill. Rev. Stat. 1977, ch. 38, pars. 18 — 1(a), 18 — 2(a).) I believe that the presence of this element involving force is a sufficient basis to distinguish those cases from the present one.

I do not believe Terrell can be distinguished from the present case on the ground that the supreme court in Terrell was not addressing any issue regarding jury instructions. Of course the supreme court did not address that issue; no such issue was raised for it to address. Here, the issue was appropriately raised and preserved at the trial level.

Because, in my judgment, the. supreme court’s decision in Terrell compels the reversal in the present case, we need not and cannot concern ourselves with the effects of that reversal upon other cases either yet to be tried or pending appeal.


author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MASIEO L. RICHMOND, Defendant-Appellant.
    Fourth District
    No. 4-89-0323
    Opinion filed August 16, 1990.
    Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Defendant Masieo L. Richmond was found guilty of the offense of first-degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1) after a jury trial in the circuit court of Macon County. Subsequently he was sentenced to a 50-year term of imprisonment. He appeals, contending (1) the prosecution deliberately elicited testimony that the defendant requested an attorney immediately upon learning of the victim’s death; (2) the prosecution improperly introduced testimony of other crimes; and (3) the court improperly restricted cross-examination of a key prosecution witness and refused to permit an offer of proof relating to that cross-examination.

The State’s case consisted of the testimony of 32 witnesses, stipulations, and exhibits. The evidence clearly established that Patsy Rosich, a 5-foot 4-inch, 120-pound female, was murdered by the infliction of a severe beating to her head. The medical evidence was unrefuted and, while Patsy was epileptic, the severe injuries to her head, in absence of other serious bruises to her body, could not have been caused by falling downstairs. The evidence establishes the beating which resulted in her death was administered in her apartment sometime between 8 and 9 p.m. on November 1, 1988. Witnesses established defendant was in the hall near Patsy’s apartment at about 8 p.m. Several witnesses heard an altercation soon after defendant was seen in the hall, and three witnesses watched as Patsy, during the altercation, tried to crawl out of her apartment, only to be snatched back by someone pulling her legs. Prior to being snatched back into the apartment, a voice from the apartment said, “Come on, baby, come back.” Silence then returned to the apartment. The onlookers did nothing. (So much for mankind.)

No one saw the defendant enter or leave Patsy’s apartment during the evening of November 1, 1988. No one else, including Patsy, was seen coming or going from Patsy’s apartment after the altercation. However, defendant entered the apartment on the morning of November 2, 1988. He then went across the street in a nervous state at about 9:30 a.m., called James (Sonny) Powell to say he had an emergency, and asked him to bring a car to Patsy’s apartment building. Sonny arrived at the apartment building. The defendant carried Patsy to the car and, together with Sonny, took her to Decatur Memorial Hospital (DMH).

Life-support systems were attached to Patsy. Defendant, who gave the DMH staff registration information, was taken into a separate room where he lay down and had his blood pressure checked. He provided the hospital with a false name. In the nurse’s absence, the defendant left without telling the DMH staff. He had reported to DMH that Patsy had a seizure and he found her “that way this morning.”

On November 3, 1988, after it had been determined that Patsy was brain dead, life-support systems were removed and she was pronounced dead.

Patsy had a history of epilepsy, and Dilantin and phenobarbital had been prescribed for her condition. Traces of both drugs were found in her system during her hospital treatment and by the pathologist. The autopsy, in addition to the head wounds, indicated at least two patches of her hair were missing. Hair of the same type, with roots still attached, was found both in her apartment and on the jacket the defendant was wearing the night of November 1, 1988. The cause of death was brain swelling due to closed-head trauma, which was caused by a blunt-impact injury.

Police testimony established that defendant gave conflicting statements as to his whereabouts on the evening of November 1, 1988, eventually admitting that he had been on the stairs of Patsy’s apartment building and that he knew her. In the spring of 1988, a protection order had been entered prohibiting him from abusing her.

Witness Susan Harrison was allowed to testify, over objection, that in the summer of 1988 she saw the defendant slap Patsy in the face, kick her, and pull her hair. Harrison also testified that in early November 1988, after Patsy was hospitalized, she heard the defendant say, in discussing Patsy, he had “just stomped the shit out of the bitch and took her to the hospital.”

I

Defendant’s first alleged error arises from the following testimony of police officer Brian Bell. The testimony took place during the State’s examination of Officer Bell:

“Q. [Prosecutor]: How long did this interview take place-take?
A. A little over an hour.
Q. And was there a specific occasion that resulted in the conversation ending?
A. Yes, sir. Mr. Richmond advised me that he no longer wanted to make any statements; that he wanted to consult with an attorney.
Q. And was any information brought to his attention before he made that statement to you?
[Defense Counsel]: Object. Relevance.
THE COURT: What was the last question? I didn’t even hear the question.
Q. [Prosecutor]: Was any information given to Mr. Richmond before he made that statement?
THE COURT: Sustained. I don’t understand the question.
Q. [Prosecutor]: Do you recall anything else that happened during the interview?
A. Yes, sir. I had left the interview room for a very short period of time and I returned and at that time I had been advised that Patsy Rosich had passed away. I advised Mr. Richmond of that fact and continued to interview him for, I believe, less than ten minutes, and he told me that he wanted to speak to an attorney.”

Defendant contends introduction of the post-arrest silence violates due process (Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240), and further claims it is a constitutional violation because it violates defendant’s fifth amendment rights and penalizes the defendant for exercising those rights (Griffin v. California (1965), 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229).

In Doyle, defendants were charged with a marijuana sale and early on exercised their right to remain silent. At separate trials, the defendants came up with an exculpatory story and, over objection, the prosecution was allowed to cross-examine them about why they did not tell this story when arrested. The Doyle majority opinion stated:

“We hold that the use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment. The State has not claimed that such use in the circumstances of this case might have been harmless error. Accordingly; petitioners’ convictions are reversed and their causes remanded to the state courts for further proceedings not inconsistent with this opinion.” Doyle, 426 U.S. at 619-20, 49 L. Ed. 2d at 98-99, 96 S. Ct. at 2245-46.

In Griffin, the charge was murder in the first degree, and the defendant did not testify. California provided, by statute, the right to comment about the failure to testify. After considering various reasons why a defendant might elect not to testify, the Supreme Court said:

“[We] hold that the Fifth Amendment, in its direct application to the Federal Government, and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” Griffin, 380 U.S. at 615,14 L. Ed. 2d at 110, 85 S. Ct. at 1233.

In People v. Kennedy (1975), 33 Ill. App. 3d 857, 338 N.E.2d 414, this court reversed a conviction, where the State repeatedly inquired about, and then argued in reference to, defendant’s request for an attorney after refusing to allow the recording of his voice. The recording was to be used to determine whether defendant had made phone calls to give bomb warnings. The refusal to give a voice sample was treated as a determination to remain silent. The State’s questioning and comments about these matters were, in that context, treated as plain error.

Initially, we observe defendant did not object at trial, nor did he include this allegation of error in his post-trial motion. Both the trial court objection and the written post-trial motion raising the issue are required to preserve allegations of error. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) Failure to do either constitutes waiver of the alleged error.

An exception to the waiver rule is contained in Rule 615(a) (107 Ill. 2d R. 615(a)), also known as the plain error rule, which provides that plain errors affecting substantial rights may be noticed even though they were not brought to the attention of the trial court. The plain error rule is a limited exception to the waiver doctrine (People v. Carlson (1980), 79 Ill. 2d 564, 577-78, 404 N.E.2d 233, 239) and “does not mandate that a reviewing court consider all errors involving substantial rights whether or not the same have been brought to the attention of the trial court.” (People v. Pickett (1973), 54 Ill. 2d 280, 282, 296 N.E.2d 856, 858.) Issues which were waived" will be considered only if the evidence is closely balanced (People v. Gacho (1988), 122 Ill. 2d 221, 239, 522 N.E.2d 1146, 1155, cert. denied (1988), 488 U.S. 910, 102 L. Ed. 2d 252, 109 S. Ct. 264; People v. Garcia (1983), 97 Ill. 2d 58, 87, 454 N.E.2d 274, 286), or if the error is of such magnitude that the commission thereof denies the accused a fair and impartial trial (Carlson, 79 Ill. 2d at 576-77, 404 N.E.2d at 238; Pickett, 54 Ill. 2d at 283, 296 N.E.2d at 858).

We find neither basis for invoking the exception applies. The facts in Doyle, Griffin, and Kennedy are far different than those now before this court. While the testimony of Officer Bell relating why defendant elected to terminate the inquiry was subject to objection based upon constitutional grounds, the repetition and emphasis present in Doyle, Griffin, and Kennedy were not present here. Nor do we find the evidence, much of which we acknowledge is circumstantial, closely balanced. In making this determination, we recognize the defendant’s presence at Patsy’s apartment building on November 1, 1988, and on the morning of November 2, 1988, together with the trip to the hospital, was basically admitted by defendant in his statements and clearly established by other witnesses. Accordingly, we conclude any error in this regard is waived.

II

Prior to trial, defendant filed a motion in limine, seeking to exclude certain evidence. The court denied the motion in part. Accordingly, the State introduced evidence that Patsy obtained an order of protection against defendant in May 1988, which would not expire until May 1989. The State also presented the testimony of Harrison concerning the physical abuse of Patsy by defendant in the summer of 1988. Defendant maintains this evidence was erroneously admitted, since its sole purpose was to show propensity to commit crime.

In People v. Lucas (1989), 132 Ill. 2d 399, 429, 548 N.E.2d 1003, 1015, the court explained:

“Generally, evidence of prior acts and offenses may not be introduced to show propensity to commit crime. (People v. Bartall (1983), 98 Ill. 2d 294, 309-10.) However, evidence of other crimes is admissible if it tends to prove modus operandi, design, motive or knowledge. (People v. Shum (1987), 117 Ill. 2d 317, 352; People v. McKibbins (1983), 96 Ill. 2d 176, 182; see also M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §404.5, at 163 (4th ed. 1984).) In fact, evidence of other offenses is admissible if relevant for any purpose other than to show propensity to commit crime. People v. King (1986), 109 Ill. 2d 514, 530; People v. Dewey (1969), 42 Ill. 2d 148, 157; see also M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §404.5, at 163 (4th ed. 1984).
In the case before us, the defendant’s involvement in the decedent’s death was established by his own testimony. However, the defendant claimed that he did not have the intent to kill or cause great bodily harm to Danny. Evidence that the defendant was involved in prior incidents in which the decedent suffered similar injuries was admissible to show the presence of intent and the absence of accident. The evidence was relevant for a purpose other than to show the defendant’s propensity to commit crime, and was therefore admissible. See McKibbins, 96 Ill. 2d at 186; Dewey, 42 Ill. 2d at 157.”

Earlier, the court stated:

“Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable than it would be without such evidence. (See People v. Johnson (1986), 114 Ill. 2d 170, 193; People v. Monroe (1977), 66 Ill. 2d 317, 322 (adopting Fed. R. Evid. 401).) Evidence which tends to establish that the accused had a motive for killing the decedent is relevant, and if the evidence, at least to a slight degree, tends to establish the motive relied on, it is also competent. Stewart, 105 Ill. 2d at 56; People v. Branion (1970), 47 Ill. 2d 70, 77.” Lucas, 132 Ill. 2d at 427, 548 N.E.2d at 1014.

Here, the evidence of the summer incident shows that defendant was seeking money from Patsy and that the defendant was pulling Patsy’s hair during the incident. The trial evidence further shows that defendant explained to police that the reason he went to Patsy’s apartment was to seek a loan of money, and that Patsy was having trouble coming up with the November rent. This evidence clearly goes to the question of the motive for the beating. Similarly, the autopsy evidence showed Patsy had hair pulled from her head during the murder. Thus, the questioned evidence also goes to establish modus operands

Evidence of other crimes has also been found admissible to demonstrate a defendant’s dislike for, or attitude toward, the victim. (People v. Crayton (1988), 175 Ill. App. 3d 932, 946, 530 N.E.2d 651, 660.) This is applicable to the admission of the order of protection. Further, any error concerning its admission is harmless since the record already establishes by the above-mentioned testimony that there had been physical confrontations between Patsy and defendant before.

Ill

Defendant’s last contention relates to the trial court’s restriction during the cross-examination of Susan Harrison. Harrison was the only witness to testify as to a statement from defendant admitting to the beating of Patsy. Harrison’s testimony that defendant said he had “just stomped the shit out of the bitch and took her to the hospital” was the only evidence definitely putting the defendant in Patsy’s apartment at the time of the beating. Other facts certainly indicated the likelihood of defendant being involved, but the conclusion of guilt based solely on the other evidence would be only by inference. The other person allegedly present at the time of the statement, a friend of defendant’s, testified he did not remember the incident.

The following took place during cross-examination of Harrison in an attempt to impeach her testimony:

“Q. [Defense Counsel:] Are you doing this for crimestopper money?
A. [Witness:] No.
[Prosecutor]: Your Honor, I’m going to object to that question.
A. [Witness:] No.
[Defense Counsel]: You have been interested in crimestopper money in other cases, haven’t you?
[Prosecutor]: Object.
THE COURT: Sustained as to crimestopper cases.
[Defense Counsel]: I’m going to get into the interest or bias.
THE COURT: The objection shall be sustained.
[Defense Counsel]: Your Honor, may I make an offer of proof?
THE COURT: No.”

This testimony was the first that mentioned “crimestopper” money. Defendant argues that the limitation was an unconstitutional limitation of his right to confront the witness, and the denial of the right to make an offer of proof was reversible error. We first address the offer-of-proof issue.

Trial courts are required to permit counsel to make offers of proof (In re Estate of Undziakiewicz (1964), 54 Ill. App. 2d 382, 385, 203 N.E.2d 434, 436), and a refusal to permit the offer is error (In re Marriage of Strauss (1989), 183 Ill. App. 3d 424, 428, 539 N.E.2d 808, 811; Blazina v. Blazina (1976), 42 Ill. App. 3d 159, 166, 356 N.E.2d 164, 170; M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §103.7, at 22 (5th ed. 1990)). (See, e.g., People v. Minnis (1983), 118 Ill. App. 3d 345, 353-57, 455 N.E.2d 209, 215-18 (reversing and remanding for a new trial where court refused to permit offer of proof on applicability of battered woman syndrome to facts of case).) However, the refusal of the offer is not error if the suggested testimony is not relevant. Strauss, 183 Ill. App. 3d at 428, 539 N.E.2d at 811.

The witness’ interest, including compensation for testimony, is properly subject to inquiry when seeking to impeach. (Ill. Rev. Stat. 1987, ch. 38, par. 155 — 1; Chicago City Ry. Co. v. Carroll (1903), 206 Ill. 318, 68 N.E. 1087; M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §607.7, at 358 (5th ed. 1990).) We understand “crimestopper” awards are given to those who assist in providing evidence in criminal cases. If Harrison was, or would be, paid for furnishing evidence against the defendant in this case, inquiry into such matters would be relevant and permissible. The witness’ anticipation of possible compensation would also be of major interest in determining her interest in the outcome of the trial. Without further examination of the record, we would be required, in this case, to reverse because of the limitation on the cross-examination on the issue of payment and also find the court created reversible error by not allowing the offer of proof. However, additional testimony and the subsequent argument to the court require a different result.

Following the denial of the offer of proof, defense counsel continued with his cross-examination and the State then examined on redirect with the following taking place:

“Q. [Prosecutor:] Ms. Harrison, you are here today because of a subpoena that you received?
A. Yes.
Q. Is anyone paying you to testify?
A. No, they are not.
Q. Did anyone apply any threats or coercion to force you to testify?
A. No.
* * *
Q. [Prosecutor:] Did anyone tell you what to say today?
A. No, they didn’t.
[Defense Counsel]: Objection.
THE COURT: She may respond to that question.
A. No, they didn’t.
[Prosecutor]: Thank you. Nothing further.”

On re-cross-examination, the following transpired:

“Q. [Defense Counsel:] You would like to get paid for it today?
[Prosecutor]: Objection, not relevant.
THE COURT: She may respond to the question.
A. No. Simply because I know Masieo and Pat both.
Q. Your car doesn’t have much gas, right? You’d like to get paid for that, wouldn’t you?
A. Well, I’d like to get paid for a lot of things, you know.
Q. You’ve come to Court several times, is that correct, last couple of days?
A. Well, I came on the first day and then I haven’t been back until today.
Q. You’d like to get paid for your gas, is that right?
A. No. I would like to just leave and be home and be with my kids ’cause I’ve got two sick babies at home.”

In addition, at the time defendant was to argue his motion for directed verdict at the close of the State’s case, the following took place:

“THE COURT: Show, then, the People rest.
Show, then, the Written Motion for Directed Verdict at the Close of the State’s Case. Any arguments or comments, Mr. Baxter?
[Defense Counsel]: Your Honor, I would just state that although I made an offer — I was going to make an offer of proof on Susan Beasley Harrison’s — The question I asked her which was sustained over objection, I feel that I should have been allowed an offer of proof regarding her involvement or desire for crime stopper money. I state that because I had a conversation "with her.
* * *
[Defense Counsel]: I feel I should have been allowed to make an offer of proof because I had a conversation where she inquired to me that there was another case that she thought she was entitled to crime stopper money for and what she should do about it. Now, that was the sole purpose of me asking that question. There was objection made and it was sustained and it was for that basis that I felt that I should have been allowed to make an offer of proof on that point outside the presence of the jury. That’s what I wanted to say for the basis of the record.
THE COURT: We’ll show that representation. You were allowed to ask was she being offered any crime stoppers money in this case and I allowed her to respond. It’s the position of the Court that what she’s doing in another case does not relate here.

[Defense Counsel]: I just wanted to put that on the record.” We conclude from the redirect and re-cross, together with the representation at the time of the motion for directed verdict, that the defense’s proposed inquiry related to prior criminal cases in which Harrison had been a witness or a proposed witness. We agree with the trial court that evidence of compensation paid a witness in prior cases has no relevance in the present case. If we were to rule to the contrary, it would appear that inquiry into the facts and background of the prior cases would be proper. Evidence is relevant if it tends to prove a matter in controversy. (Bullard v. Barnes (1984) 102 Ill. 2d 505, 519, 468 N.E.2d 1228, 1235.) We conclude that Harrison’s testimony in prior unrelated cases, and possible compensation therefore, is too remote to reliably act as impeachment in the present case.

Affirmed.

KNECHT, P.J., and McCULLOUGH, J., concur.