author: JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MIMS DONALD, Defendant-Appellant.
    First District (4th Division)
    No. 1—90—0750
    Opinion filed December 5, 1991.
    Roosevelt Thomas, of Chicago, for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Defendant, Mims Donald, was convicted of aggravated criminal sexual assault and aggravated criminal sexual abuse and sentenced to 20 years in prison. On appeal, he challenges the sufficiency of the evidence.

Background

According to the testimony adduced at trial, the complaining witness (K.D.) was sexually assaulted by Donald, her uncle, in the early morning of October 7, 1988. At the time, K.D. was 12 years and 10 months old. She had gone to her aunt’s home to baby-sit four children while her aunt was at work. Because of her aunt’s hours, K.D. was to spend the night. She went to bed at about 9:30 or 10 p.m.

K.D. testified that at approximately 1 a.m., Donald awakened her and said to come with him to the basement as he had something to show her. When they got there, he started taking off her pajamas, a one-piece garment with feet in them. She was wearing black underwear and a bra underneath, which he did not remove. K.D. testified that her uncle put her on a bed in the basement and lay on top of her. He was in a shirt and underwear. He told K.D. he had to put something in her so she would not get pregnant and she said she felt him do so. She also testified that he pulled her panties to one side and put his penis in her vagina. She was screaming and struggling. She testified that he then got up off of her because she was screaming so loud, and he apologized to her. He said his wife, her aunt, was pregnant and he could not handle any more responsibility.

K.D. went upstairs and Donald came to her room to apologize again. She remained awake the whole night, crying and scared. The next morning, however, she did not tell her aunt. She did say she wanted to go home early.

Donald then told his wife that he knew why K.D. wanted to go home and he told her what he had done. His wife became upset and comforted K.D., while Donald said he would be willing to go to jail. His wife said they would have to tell K.D.’s mother first and the three of them drove to K.D.’s house to do so.

On cross-examination, K.D. admitted that she had spent much time at Donald’s house without incident. She said she had had a very good relationship with him up to that point. She agreed that he appeared to have been drinking the night of the attack. She also admitted telling the police that he had his penis inside her for 5 or 10 minutes. She said she knew it was his penis because she put her hand down when she was pushing him away and could feel it through an opening in his underwear.

K.D. was taken to the hospital for a complete examination. The results of the examination were not presented at trial, however, and are not of record.

The victim’s mother testified that she is Donald’s sister-in-law. She met with him and her sister on October 7, 1988. K.D.’s mother said that when she got into her sister’s car, Donald told her that he had raped her daughter. He said he was sorry, that he would give her money or do whatever he could to help K.D., even if it meant going to jail. He also said he was drunk at the time of the incident.

The State called Donald’s wife to the stand. She and Donald were separated at the time of trial. She testified that when she had returned home from work on October 7, 1988, her niece told her she wanted to go home. Donald was in bed, but as they were leaving, he came out and asked where they were going. She told him and he said he knew why K.D. wanted to leave. The three of them discussed what had happened.

She testified that K.D. started to cry then and said Donald had fallen on her. Donald said he had put some “stuff” in her, a spermicide. The witness said that her husband had purchased the spermicide a few days before, even though she was pregnant. She said they talked about it and Donald said maybe it was not too late. She testified that her husband was the one who purchased contraceptives in their family and he even opened one to use after she told him she was pregnant. She testified that Donald never told her he had raped K.D. He only said he had put the spermicide in her.

Ken Lietz, a police detective, testified that when he arrived at the Donalds’ home to investigate the sexual assault he searched the basement. He saw a bed with laundry on top and a foil wrapper from a spermicide capsule. He showed it to Mrs. Donald, who identified it as similar to the spermicide her husband had brought home.

Donald turned himself in to the police after the incident and told Lietz that he had worked until 12:30 a.m. and gone drinking after-wards with friends, arriving home at around 3 or 4 a.m. He woke up K.D. and told her to go to the basement. Lietz said that Donald confessed that he told K.D. to remove her pajamas and lie down on the bed. He admitted inserting the spermicide but said that it dawned on him what he was doing and so he got up, slipped, and fell on top of K.D. Then he rolled off onto the floor. They talked for about 10 minutes and both went to bed. The next day, he told his wife what had happened.

Detective Lietz also testified that K.D. first told him that Donald had placed a condom in her but later said that it was a capsule, after Lietz found the wrapper in the basement. She also claimed that Donald’s penis was in her for 5 to 10 minutes. Donald told Lietz that he had been drunk on the night of the incident but had never put his penis inside of her..

After the State rested, Mims Donald, 40 years old, testified on his own behalf. He said he had worked until 12:30 the morning of the incident and gone with friends to drink for several hours, sharing with them two pints and a fifth of liquor. He said when he got home he was “pretty well lit up.” He pulled off some of his clothes. He helped one of his daughters get up to go to the bathroom and put her back in bed. Then he went in his room and got a contraceptive device. He went back to the kids’ room and told K.D. to come with him to the basement.

She sat on the bed in the basement and he asked her to pull off her pajamas. She asked him not to hurt her and said how disappointed she was in him, and then started to cry and scream. He testified that he fell on her as he got up to leave and they talked for awhile. Donald said that he did not place any capsule inside her or put his hands on her. He said he did have it in mind to have sex with her but changed his mind when he came to his senses. He also denied telling anyone, including K.D.’s mother, that he had raped K.D. or put anything in her vagina.

He was convicted of aggravated criminal sexual assault, criminal sexual assault, aggravated criminal sexual abuse, and unlawful restraint.

In the sentencing hearing the sole factor in aggravation, apart from the facts of the offense itself, was a 1978 auto theft conviction for which he had received one year of probation. The record, if not the briefs, indicates that a substantial amount of evidence in mitigation was presented, including psychological opinion testimony and letters from friends, family, and co-workers at Borg-Warner, where he had worked. An organization called the Midwest Center on Institutions and Alternatives prepared a “Client Specific Plan” which analyzed his personal and family background, education and employment, marriage and children, substance abuse history and psychological profile. The report traces Donald’s long history of employment, often at several jobs to provide for his family. The diagnostic tests used for evaluating his psychological make-up, including the Minnesota Multiphasic Personality Inventory, were described in the report. The conclusion of the personnel who administered and evaluated the tests was “that Mr. Donald does not fit the profile of a pedophile.”

Donald’s wife testified at the sentencing hearing and said that in the many years that she had known him and had nieces or other young children around the house she had seen no activity of any sexual improprieties or advances on the part of her husband.

Another defense witness was a minister, who testified that Donald worked with the church’s program to feed the hungry. He said he considered Donald to be a productive member of society. The court asked the minister a series of questions about the young victim, whom the witness did not know, at one point asking what the minister thought about specific prison terms as “helping] her forget” the crime.

The defense attorney represented to the court that Borg-Warner had agreed to put Donald on leave of absence instead of firing him if he were to receive a minimum period of incarceration.

A couple of specialists who had either treated or tested Donald also testified. One explained why, in her opinion, Donald did not fit the profile of a “fixated pedophile or child molester” and that his expression of remorse, stress aggravated by alcohol, and other factors indicated that a minimum sentence would be appropriate. The witness also stated that Donald had made substantial efforts to cooperate with his counselling and had been attending Alcoholics Anonymous meetings.

Again, the trial court questioned the witnesses who had evaluated Donald, asking whether they had interviewed the victim.

The record also reveals that on two or three different occasions during the hearing, the court commented that the potential sentence in the case, for the Class X offense, was 60 years (which would be the maximum, extended term).

When Donald was given the chance to address the court before imposition of sentence, the court also asked him about the victim. Finally, the court remarked, after hearing the defense plea for lenience in sentencing:

“Okay. Now, I grieve for him, for the fact that his children, maybe his house is in foreclosure and everything else, but you know, we have to look at something, to me more important than all of that stuff. I have got a victim and I haven’t heard one person in this courtroom aside from me, I keep asking questions about the victim, no one else asked a question about the victim. Here is a woman who was raped, thirteen years old. Forget woman. She is a baby. Thirteen year old baby. They are not women. Okay. So we are going to condone every drunk who sits here and comes around and says okay, here’s how I beat it? He wasn’t that drunk that he didn’t know to not get her pregnant. He puts a spermicidal capsule in her vagina, and that there — and now we are supposed to sit here and everyone is supposed to feel sorry for him and I do feel sorry for him because he has problems. The most that means is he is not going to get sixty years, and he probably won’t get thirty years, but the minimum is six. There is no way he is going to get a minimum of six either because I am going to sentence him and he is going to have to pay the penalty, and there were all fine people here and believe me I listened to everyone of them and I took it into account but in the back of my mind, I have to take into account a thirteen year old girl has had her life ruined by her uncle. You heard her testimony, [defense lawyer’s name]. ‘Uncle, I never thought you would do this to me.’ That’s the testimony. That’s how much she loved this man. Isn’t that right?
MR. DONALD: YourHonor-
THE COURT: That’s how much she loved you.
MR. DONALD: True.
THE COURT: For that you must be penalized because you took advantage of a person who loved you, and for that, you get twenty years in the penitentiary [for aggravated criminal assault]. *** On the [criminal sexual assault] Class I, you get the maximum fifteen years Illinois Department of Corrections. On the abuse, Class II, you get seven years Illinois Department of corrections. On the unlawful restraint, three years ***. All concurrent.”

Opinion

On appeal, Donald challenges his convictions of aggravated criminal sexual assault and aggravated criminal sexual abuse as not being proved beyond a reasonable doubt. He has not challenged the propriety of the sentencing, however.

The relevant portion of the aggravated criminal sexual assault statute provides that the offense is established if the accused was 17 years old 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).) The aggravated criminal sexual abuse statute contains the same age restrictions but defines the abuse as “an act of sexual conduct,” which includes a knowing touching or fondling for the purpose of sexual gratification. Ill. Rev. Stat. 1987, ch. 38, par. 12 — 16(c)(1).

Donald first contends that the State failed to prove all the elements of aggravated criminal sexual assault, specifically the element of penetration. He relies on two cases in which the courts found the proof of penetration insufficient. (People v. Kelly (1989), 185 Ill. App. 3d 43, 540 N.E.2d 1125; People v. Smith (1987), 152 Ill. App. 3d 589, 504 N.E.2d 850.) In Kelly, two victims, a five-year-old girl and her seven-year-old cousin, said that the defendant had “poked” their vaginas. The majority of the court ruled that there was insufficient evidence of actual penetration by the defendant, despite evidence of redness and medical evidence that was consistent with penetration (although not conclusive of it). Accordingly, the court reversed the Class X offense of aggravated criminal sexual assault and the eight-year sentence imposed thereon. The court went on to affirm defendant’s convictions for the lesser included offenses of aggravated criminal sexual abuse, however.

In People v. Smith, the 43-year-old defendant was convicted of criminal sexual abuse and sentenced to six years in prison. He had been charged with four counts of aggravated criminal sexual assault, one count of criminal sexual assault, and one count of unlawful restraint. The 11-year-old victim had testified that after school defendant picked her up, threw her on a bed, pulled down her pants and underwear, and put his penis into her vagina after putting a pillow over her head. She said he told her to stop screaming or he would kill her. She did not tell her mother until two days later, after the defendant (who lived with her mother) said he had almost raped the girl and was moving out. The trial court found that the evidence was sufficient to convict for the lesser included offense of aggravated criminal sexual abuse, but not the more serious crime.

We do not agree with Donald that the evidence in this case, construed in the light most favorable to the prosecution, falls short of proof beyond a reasonable doubt that he penetrated the victim. The two cases he cites do not support his position. Kelly involved very young witnesses who apparently did not actually state that the defendant inserted his finger into their vaginas. Moreover, one judge wrote a partial dissent from that opinion on the ground that the evidence was indeed sufficient to prove actual penetration. In Smith, the complaining witness’ allegations had been determined unfounded by the Illinois Department of Children and Family Services. That report was unavailable to defendant because it had been destroyed pursuant to statutory requirements that unfounded incidents of abuse be destroyed. The trial court, judging the victim’s trial testimony, found the proofs inadequate as to the more serious, penetration offense. Other witnesses’ testimony indicated that defendant had “almost” raped the girl. Under those circumstances, the trial court gave the benefit of the doubt to the defendant on the penetration element of the offense.

In the pending case, K.D.’s mother testified that Donald said he had raped her daughter. Donald’s wife testified that he admitted to her that he put the spermicide in K.D., although he said nothing about a rape. The police officers found an empty spermicide capsule, and Donald himself admitted taking one down to the basement. Moreover, in his statements to police after the incident he admitted to inserting the spermicide. He never admitted to inserting his penis in K.D., but the statutory requirement of penetration is not limited to penile penetration. While it may have been preferable for the results of KD.’s medical examination to have been offered at trial and included in the record, its absence is of limited relevance to our standard of appellate review. The trial court judged the credibility and demeanor of the witnesses, and we cannot say the conviction for aggravated criminal sexual assault was not proved beyond a reasonable doubt. See People v. Schott (1991), 145 Ill. 2d 188; People v. Byrd (1990), 206 Ill. App. 3d 996,1006, 565 N.E.2d 776.

Likewise, the facts support the conviction for aggravated criminal sexual abuse, since other sexual acts besides penetration fulfil this offense. On the other hand, it is not readily apparent that Donald was convicted of sexual assault and abuse based on different acts. The abuse count should have been vacated if it was based on the same act as the greater offense, aggravated criminal sexual assault. (See People v. Smith (1987), 152 Ill. App. 3d 589, 504 N.E.2d 850 (aggravated criminal sexual abuse is a lesser included offense of aggravated criminal sexual assault).) The indictment in the record contains multiple counts, a total of 17, including kidnapping counts that were dismissed. Such overkill hardly aids in the analysis; however, the record does contain an order that embodies the four counts upon which conviction and sentence were imposed. The order of sentence and commitment to the Illinois Department of Corrections reflects that the 20-year sentence was imposed for the Class X offense of aggravated criminal sexual assault, section 12 — 14(b)(1) (penetration; victim under 13). The remaining convictions and sentences are listed as follows: 15 years for the Class 1 felony of criminal sexual assault, section 12 — 13(a)(1) (also a penetration offense, but instead of an element based on age of victim, the key is force or threat); seven years for the Class 2 felony of aggravated criminal sexual abuse, section 12— 16(c)(1) (act of sexual conduct with person under 13); and three years for the Class 4 felony of unlawful restraint, section 10 — 3(a).

The act or acts complained of in this case are the penetration by Donald’s fingers (to insert the spermicide) and the penetration by his penis. Either would satisfy the most severe offense of aggravated criminal sexual assault, which requires a penetration of a victim under 13 years of age. K.D. was two months short of 13, so the age element is satisfied. We do not believe, however, that the aggravated criminal sexual abuse count can properly be sustained as a separate conviction because it is also based on the age of the victim and the same act of sexual conduct. (See People v. Smith, 152 Ill. App. 3d at 594, 504 N.E.2d at 853.) We therefore vacate the aggravated criminal sexual abuse conviction and sentence.

In so doing, we would not ordinarily need to remand for re-sentencing. (People v. White (1986), 114 Ill. 2d 61, 499 N.E.2d 467 (remandment not necessary if improper sentencing element cannot be said to have affected sentence).) In this case, however, we believe that the sentencing determination must be vacated for another reason and remanded for a new hearing. The record in this case and the trial court’s comments during the sentencing hearing suggest that the court did not actually balance the statutory factors in mitigation and aggravation. Instead, the court stressed the age of the victim, which is the one element of the offense that brought it into the Class X realm. (See People v. White (1986), 114 Ill. 2d 61, 499 N.E.2d 467 (age of victim — under 13 years — is an essential element of aggravated battery of a child and therefore the court should not use age of victim as an aggravating factor in sentencing determination).) In People v. Embry (1989), 179 Ill. App. 3d 1059, 535 N.E.2d 87, the appellate court vacated a 24-year sentence imposed upon a defendant who had been convicted of aggravated criminal sexual assault because the trial court had considered the elderly victim’s age, a substantive element of the Class X offense, as an aggravating factor. In addition, the trial court had improperly speculated that the defendant might have sexually assaulted another elderly victim in a separate burglary incident if she had not observed his attempt to enter her home.

In the case on appeal, the trial court continuously stressed the victim’s age and her relationship to Donald, commenting that for “taking advantage of a person who loved [him],” Donald “must be penalized” with a term of 20 years in prison.

We also question whether it was appropriate for the court to challenge defense character witnesses who testified in the mitigation phase of the hearing by repeatedly inquiring about the victim’s well-being. Without in any way minimizing the harm that was done to the young victim in this case, we nevertheless point out that the sentencing factors in mitigation are to focus on the defendant and his potential for rehabilitation as well as his background, not the impact on the victim. (See People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541; People v. Gibbs (1977), 49 Ill. App. 3d 644, 364 N.E.2d 491.) The State did not offer any victim impact material and no evidence in aggravation was formally introduced.

Aggravated criminal sexual assault, as a Class X crime (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(c)), carries a sentence in the range of 6 to 30 years. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(a)(3).) Other courts have recognized, however, that the upper end of the range may be an abuse of discretion and out of line with those imposed in similar cases. See People v. Harris (1989), 187 Ill. App. 3d 832, 844, 543 N.E.2d 859, 865 (appellate court vacated 25-year sentence in aggravated criminal sexual assault case, “cautiously [finding] that the trial court abused its discretion” in sentencing a 39-year-old offender convicted of aggravated criminal sexual assault upon the seven-year-old daughter of his girlfriend).

The court in Harris acknowledged that the sentence was within the statutory range and that the trial court had considered factors in aggravation and mitigation. Nevertheless, the court reviewed the mitigating. factors, which are somewhat similar to those present in the instant record. Harris was 39, an alcoholic, with only misdemeanor convictions and no prior record of sex crimes. He had only a fourth-grade education because he was employed at an early age to support his family. His employment record indicated he was a dependable individual. He also supported three children and their mother. The Harris court found, “Although defendant’s acts are heinous, which we in no way condone, we find that the sentence imposed is excessive.” (187 Ill. App. 3d at 845, 543 N.E.2d at 866.) The court then reviewed similar cases in which the courts had imposed minimum, six-year sentences for essentially the same act as present in the case before it, penetration of a young child’s vagina with defendant’s finger. The court further noted that, “even in cases involving more serious criminal acts with children, the sentences imposed have not been as severe as in the instant case.” In support, the Harris court cited these cases: People v. Watson (1989), 178 Ill. App. 3d 796, 533 N.E.2d 1011 (defendant sentenced to eight years following conviction of aggravated criminal sexual assault for inserting his penis and finger into his seven-year-old stepdaughter’s vagina); People v. Daniels (1987), 164 Ill. App. 3d 1055, 518 N.E.2d 669 (defendant received six years for, among other things, directing her son to put his penis into her vagina during a pornographic home video); People v. Fisher (1988), 169 Ill. App. 3d 785, 523 N.E.2d 368, appeal denied (1988), 122 Ill. 2d 583, 530 N.E.2d 254 (defendant received 10 years for licking, smelling, and inserting a knife into the vagina of his 35-month-old niece); People v. Bayer (1987), 160 Ill. App. 3d 218, 513 N.E.2d 457, appeal denied (1987), 117 Ill. 2d 546, 517 N.E.2d 1088 (defendant received 14 years for, on numerous occasions, placing his penis into the mouth of his nine-year-old stepdaughter to the point of ejaculation and sexually penetrating her vagina with his finger.)

Harris emphasized that, under the Illinois Constitution, rehabilitation is a significant objective of sentencing. The court held that a reduced sentence “will allow defendant at least the possibility of being restored to a meaningful, productive life, and at the same time will be adequate retribution for his offenses, provide protection for society, and serve as a deterrent.” (Harris, 187 Ill. App. 3d at 847, 543 N.E.2d at 868.) But cf. People v. Helton (1990), 195 Ill. App. 3d 410, 420, 552 N.E.2d 398 (declining to “reweigh” sentencing factors and implying criticism of Harris decision) (affirming 15-year sentence imposed upon defendant who had a criminal history of sexual misconduct with minors and who blamed victims and otherwise lacked rehabilitative potential).

In the pending case, the trial testimony reveals that Donald was immediately remorseful for his conduct toward K.D. and turned himself in. The sentencing material indicates that he has never before been imprisoned for any offense and has a record of probation only. Nothing indicates that he has in the past or would be likely in the future to sexually attack children, and the complaining witness testified that he had never before behaved improperly around her. According to a report prepared for the sentencing hearing, Donald grew up and attended school in rural Mississippi, quitting after the eighth grade to help his sharecropper parents “work the fields.” He has been steadily employed since he started working. He had worked at Borg-Warner for many years at the time of his imprisonment, and the record contains praise for his work as well as his character by several of his coworkers and his supervisor. He supports five children and appears to have a good relationship with them. He was facing marital and financial problems at the time of the incident. The psychological testing and recommendations, by no means binding on the trial court, nevertheless indicate that Donald, who apparently is addicted to alcohol and caffeine, should undergo continuing psychological therapy. In fact, the report had recommended a sentence of periodic imprisonment with continued counselling and continued attendance at AA meetings.

In light of these facts and the trial court’s repeated emphasis on the harm to the victim during the defense presentation of factors in mitigation, we conclude that Donald should receive a new sentencing hearing. (See People v. Bolyard (1975), 61 Ill. 2d 583, 338 N.E.2d 168 (reversing sentence and remanding because trial court stated that taking indecent liberties with a child was the “most sinful, reprehensible” of all crimes); People v. Zemke (1987), 159 Ill. App. 3d 624, 512 N.E.2d 374 (vacating trial court’s denial of probation and imposition of maximum penalty following guilty plea of criminal sexual abuse, where the court stated its belief that no crime was worse).) We also believe that the 20-year sentence imposed herein is excessive under the facts of record. Accordingly, we remand this case for a new sentencing hearing.

For the foregoing reasons, we affirm all convictions except that for aggravated criminal sexual abuse, which we vacate, and remand for a new sentencing hearing.

Affirmed in part; vacated in part, and remanded.

JIGANTI, P.J., and JOHNSON, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE JIGANTI JUSTICE McMORROW,

license: Public Domain

text:
    THOMAS DRINANE et al., Plaintiffs-Appellees, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant.
    First District (4th Division)
    No. 1—91—0279
    Opinion filed December 5,1991.

      McMORROW, J., specially concurring.
    James J. Hoffnagle, of Taylor, Miller, Sprowl, Hoffnagle &• Merletti, of Chicago, for appellant.
    William S. Wojcik, of Wojcik & Wojcik, of Chicago, for appellees.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiffs, Thomas, Edward, and Geraldine Drinane, filed a petition to vacate an arbitration award made pursuant to the uninsured motorist claim of Thomas Drinane against State Farm Mutual Automobile Insurance Company. After answering the petition, State Farm moved for summary judgment. The trial court denied State Farm’s motion. The plaintiffs’ motion for summary judgment was granted, and State Farm’s petition for reconsideration was denied. State Farm follows with this appeal.

Following an accident involving an uninsured motorist, the plaintiffs, the Drinanes, made a claim against State Farm. Under the terms of the policy, the claim was submitted to the American Arbitration Association, which selected E. Steven Yonover as the arbitrator. State Farm was represented in the arbitration by the law firm of Querrey & Harrow, Ltd. During the arbitration proceedings, Yonover was acting as an attorney for other plaintiffs in a pending unrelated lawsuit. Yonover’s plaintiffs were proceeding against a party insured by State Farm and represented by Querrey & Harrow, Ltd. Yonover did not disclose his involvement in the pending lawsuit to the American Arbitration Association or the parties to the arbitration. Yonover rendered an award for the plaintiffs in the amount of $27,000.

In arguing for vacatur of the arbitration award, the plaintiffs asserted that pursuant to the rules of the American Arbitration Association, Yonover should have disclosed his involvement in the pending lawsuit. Under Rule 9 of the American Arbitration Association Accident Claims rules, an arbitrator is required to “disclose any circumstances likely to create a presumption of bias which might disqualify [the] arbitrator as an impartial arbitrator.” The plaintiffs alleged that Yonover’s pending lawsuit was a relationship which created an appearance of bias against the plaintiffs. The Drinanes’ attorney asserted that had he known of the relationship between Yonover, State Farm, and Querrey & Harrow created by the pending lawsuit, he would have objected to Yonover’s appointment as sole arbitrator. The plaintiffs moved for vacatur of the arbitration award pursuant to the Uniform Arbitration Act (Ill. Rev. Stat. 1989, ch. 10, par. 112(a)(1)), whereunder an arbitration award procured by “corruption, fraud or other undue means” shall be vacated upon a party’s application. The plaintiffs contended that Yonover’s failure to disclose the pending lawsuit constituted “undue means.”

In the proceedings below, the Querrey & Harrow attorney representing State Farm in the Drinane claim submitted an affidavit attesting that he never talked to Yonover about Yonover’s pending claim against State Farm, nor had he ever seen the file concerning Yonover’s plaintiffs, or talked with anyone at Querrey & Harrow or State Farm about Yonover’s plaintiffs’ claim. State Farm’s claims superintendent for the Drinane case, Eileen Hauflaire, attested by affidavit that she had never communicated in any manner with Yonover concerning either the Drinane claim or Yonover’s plaintiffs’ claim against the State Farm insured. In her affidavit, Hauflaire stated that she had never handled Yonover’s plaintiffs’ claim, nor had she communicated with anyone at State Farm about the pending claim. The superintendent who had charge of the Drinane claim before Hauflaire made a similar affidavit, as did the claims specialists handling the Drinane case.

Steven Fruth, the Querrey & Harrow attorney representing State Farm against Yonover’s plaintiffs’ claim, submitted an affidavit attesting that he had never talked with Yonover, or anyone at State Farm or Querrey & Harrow about the Drinane claim. The State Farm claim superintendent for Yonover’s plaintiffs’ claim against State Farm’s insured stated through affidavit that he had never communicated with Yonover concerning the Drinane claim. Nor had he worked on the Drinane claim or spoken with anyone at State Farm or Querrey & Harrow about the Drinane claim. Fred Schnitzius, the former claims superintendent for Yonover’s plaintiffs’ case, made a similar affidavit as did the claims specialists.

Yonover testified that he had not been biased in favor of or against either party in the arbitration proceeding. Yonover also attested that his only communication with State Farm concerning his clients’ claim was with the State Farm personnel handling that claim. He never talked to Steven Fruth or any State Farm personnel regarding the Drinane claim. The only member of Querrey & Harrow with whom he communicated about the Drinane claim was the attorney representing State Farm in the case.

The trial court denied State Farm’s motion for summary judgment on the Drinanes’ petition to vacate the arbitration award. The Drinanes’ summary judgment motion was granted. State Farm filed a motion for reconsideration of the order vacating the arbitration award. The court denied State Farm’s motion for reconsideration and State Farm follows with this appeal.

.In arguing their position on appeal, the plaintiffs make in substance the same argument they submitted in their motion for summary judgment. They do not allege that there was any actual bias on Yonover’s part. The plaintiffs assert that it is the impression of possible bias that the arbitrator failed to avoid. It was not until oral argument before this court that the plaintiffs clearly articulated that the appearance of bias with which they were concerned was that Yonover, in awarding a low award against State Farm, would curry State Farm’s favor in his pending case.

The Drinanes heavily rely upon the case of Commonwealth Coatings Corp. v. Continental Casualty Co. (1968), 393 U.S. 145, 21 L. Ed. 2d 301, 89 S. Ct. 337, for the the proposition that it is not only actual fraud or bias that is prohibited, but the mere appearance of bias as well. In Commonwealth Coatings, the asserted interest of the arbitrator was that on numerous occasions he had provided services for a fee as an engineering consultant for one of the parties in arbitration. His work for the party-contractor had in some cases involved the very projects involved in the arbitration dispute. The Supreme Court, in a plurality opinion, held that under such circumstances the arbitrator might “reasonably be thought” biased against one litigant, while favorable to another. (Commonwealth Coatings, 393 U.S. at 150, 21 L. Ed. 2d at 305, 89 S. Ct. at 340.) Justice J. White, in a narrower concurring opinion, interpreted the Court’s ruling as holding that an arbitrator must make a disclosure when he has a “substantial interest in a firm which has done more than trivial business with a party.” (393 U.S. at 151-52, 21 L. Ed. 2d at 306, 89 S. Ct. at 340-41 (White, J., concurring).) Because of the tension between the plurality and concurring opinion of Commonwealth Coatings, we agree with those courts which have tended to view the opinion as limited in its application. See Merit Insurance Co. v. Leatherby Insurance Co. (7th Cir. 1983), 714 F.2d 673, cert, denied (1983), 464 U.S. 1009, 78 L. Ed. 2d 711, 104 S. Ct. 529; Andros Compania Maritima, S.A. v. Marc Rich & Co. (2d Cir. 1978), 579 F.2d 691.

We also believe that the holding of another case to which Drinane cites, Calabrese v. State Farm Mutual Automobile Insurance Co. (1989), 187 Ill. App. 3d 349, 543 N.E.2d 215, must also be considered narrow in scope. In Calabrese, the party seeking to vacate an arbitration award alleged in his complaint that the arbitrator had failed to disclose that he was representing other plaintiffs in pending cases against the defendant’s insureds, and that the arbitrator had received payment for services from the defendant-insurer in 27 cases. The Calabrese court determined that the complaining party’s allegations were sufficient “to plead a claim for vacatur of the arbitration award.” (Emphasis in original.) (Calabrese, 187 Ill. App. 3d at 352, 543 N.E.2d at 218.) The Calabrese court specifically limited its holding to the pleading stage of the proceedings.

Aside from the factual distinction between Calabrese and the present case, this court has stated before that at the summary judgment stage of the proceedings, the parties move beyond an examination of the sufficiency of the pleadings. (Loyola Academy v. S & S Roof Maintenance, Inc. (1990), 198 Ill. App. 3d 799, 556 N.E.2d 586, appeal allowed (1990), 133 Ill. 2d 559, 561 N.E.2d 693.) That which may be sufficient to plead a cause of action does not necessarily survive a summary judgment motion. (See Holland v. Arthur Andersen & Co. (1991), 212 Ill. App. 3d 645, 571 N.E.2d 777.) Because in the present case the parties are appealing from an order of summary judgment, we do not view Calabrese as dispositive.

The use of arbitration as a method of settling disputes is looked upon favorably by the courts (William B. Luche, Inc. v. Spiegel (1970), 131 Ill. App. 2d 532, 266 N.E.2d 504), and all reasonable presumptions indulged in favor of an arbitration award. (See Sweet v. Steve’s Cartage Co. (1977), 51 Ill. App. 3d 913, 365 N.E.2d 1110.) The burden is on the moving party to present competent evidence to support an assertion that the award should be invalidated. See Brown v. Atwood (1922), 224 Ill. App. 77.

An order to vacate an arbitration award must be bottomed upon “very substantial grounds.” (See Giddens v. Board of Education (1947), 398 Ill. 157, 166, 75 N.E.2d 286, 291.) Illinois courts have held that where vacatur of an arbitration award is sought on the basis of bias on the part of an arbitrator, the interest or bias must be “direct, definite and capable of demonstration, rather than remote, uncertain or speculative.” (Giddens v. Board of Education, 398 Ill. at 167, 75 N.E.2d at 291.) The Seventh Circuit Court of Appeals in Merit Insurance Co. v. Leatherby Insurance Co. (7th Cir. 1983), 714 F.2d 673, 682, has stated that in general “the mood is one of reluctance to set aside arbitration awards for failure of the arbitrator to disclose a relationship with a party.”

In coming to grips with the term “undue means” of section 12(a)(1) of the Uniform Arbitration Act, the court in Seither & Cherry Co. v. Illinois Bank Building Corp. (1981), 95 Ill. App. 3d 191, 197, 419 N.E.2d 940, 945, stated that the term “refers to some aspect of the arbitrator’s decision or decision-making process which was obtained in some manner which was unfair and beyond the normal process contemplated by the arbitration act.” The Seither court’s interpretation of the language of section 12(a)(1) is in keeping with the ejusdem generis rule of statutory construction, under which general words that follow particular words are to be construed as meaning things of the same general character, sort, kind or class of those specifically named. (McEvoy v. Brown (1958), 17 Ill. App. 2d 470, 150 N.E.2d 652.) Accordingly, the term “undue means” should be construed as meaning something of the general character of “fraud” or “corruption,” the more particular terms of section 12(a)(1).

We believe that in the present case the interest that the plaintiffs assert the arbitrator should have disclosed is too remote, uncertain, and speculative to provide the very substantial grounds necessary to vacate an award allegedly procured by “undue means,” as contemplated by section 12 of the Arbitration Act. At best, any benefit the arbitrator might have gained by his control over the award against State Farm is indefinite, no more than a bare chance of an advantage.

The closest analogy to the role of an arbitrator is the judiciary. The State of Illinois has established guidelines that prohibit judges from participating in cases in which they have a substantial financial interest. (107 Ill. 2d R 63, Canon 3 (C)(1)(d).) Under the Code of Judicial Conduct, other interests that are not characterized by ownership, such as the interest the plaintiffs in the present case assert, may also be disqualifying. However, where any “interest other” is alleged, the outcome of the case must substantially affect the interest. (107 Ill. 2d R. 63, Canon 3 (C)(1)(d).) In analyzing a similar rule under the American Bar Association Code of Judicial Conduct, the court in In re Virginia Electric & Power Co. (4th Cir. 1976), 539 F.2d 357, 368, noted that a judge “must necessarily consider the remoteness of the interest and its extent or degree” (finding that a judge’s interest in the utility’s speculative recovery was de minimis).

The codes of judicial conduct, as interpreted by case law, appear to recognize that as professionals, judges are capable of and indeed are frequently called upon to observe the finer distinctions of their ethical responsibilities. In the case of People v. Banks (1987), 121 Ill. 2d 36, 43, 520 N.E.2d 617, 620, it was argued that it was a conflict of interest for one public defender to represent a party asserting the incompetency of another public defender. In holding that such a situation does not create a per se conflict, the Illinois Supreme Court observed that “it is erroneous to assume that public defenders have such an allegiance [to the public defender’s office] [that they] are unable to subordinate it to the interests of their clients.” (121 Ill. 2d at 43.) Similarly, trial judges regularly hear motions to suppress confessions or other evidentiary matters and after the matters are excluded proceed to hear the case without a jury.

Judges regularly are called upon to adjudicate cases involving attorneys who will be instrumental in determining whether a judge is to be recommended by a local bar association for retention or for other judicial positions. Before the bench may appear members of the judge’s former political party who were instrumental in the judge obtaining the position she or he holds. Similarly, former campaign committee members may be involved in the cases the judge hears. A judge’s regular schedule may well include former colleagues on the bench, law clerks, or prosecutors and public defenders. Less dramatic, but far more significant, is the fact that the judge may be called upon to hear cases argued by members of the bar with whom, over decades of practicing law and exercising his judicial duties, the judge has formed warm and enduring friendships.

It is deceptively simple to say that a judge or an arbitrator should disclose all relationships that create a possible appearance of bias. Scrupulous adherence to that nebulous standard would be impractical. The need to maintain the highest of ethical standards must be balanced against the practicality of avoiding every superficial appearance of evil. (Weglarz v. Bruck (1984), 128 Ill. App. 3d 1, 9, 470 N.E.2d 21 (Jiganti, J., dissenting).) We also do not believe that the courts should encourage a concept which easily allows disgruntled parties to use the pretext of bias to invalidate awards. See Commonwealth Coatings Corp. v. Continental Casualty Co. (1968), 393 U.S. 145, 150, 21 L. Ed. 2d 301, 305, 89 S. Ct. 337, 340 (White, J., concurring).

The idea that a judge or arbitrator must disqualify himself anytime there is an “impression of a possible bias,” without more, abandons any confidence that we might put in the ability of the legal profession to assume responsibility for ethical choices. It also has a chilling effect on the desire of judges and arbitrators to participate in those very activities which may make them more effective in their judicial capacity. It is desirable to encourage judges to participate in civic and community activities so that they may bring a thorough knowledge of society’s standards and sensibilities to the adjudicatory process. See McKay, The Judiciary and Nonjudicial Activities, 35 Law & Contemp. Probs. 9 (1970).

Similarly, an arbitrator versed in the area of the matter he is called upon to arbitrate cannot but advance the arbitration process through his experience. (See Andros Compania Maritima, S.A. v. Marc Rich & Co. (2d Cir. 1978), 579 F.2d 691, 701 (“a principal attraction of arbitration is the expertise of those who decide the controversy”).) Such experience does not occur in a vacuum, however. In the present case, State Farm offers the observation that those attorneys who form the accident claims panel of the American Arbitration Association generally practice the law of negligence and have experience handling accident claims. An attorney experienced in handling accident claims will have inevitably come into contact with other attorneys and law firms that handle similar cases. He will also have come into contact with insurance companies, very possibly State Farm, which is one of the largest, if not the largest, insurance company in the country. It is not only impossible, but undesirable, to expect an arbitrator to have been isolated from such contact.

With these observations in mind, we do not believe that the plaintiffs in the present case have shown the very substantial grounds necessary to support the allegation that the arbitration award should be vacated because it was procured by undue means. Summary judgment in favor of the plaintiffs is reversed.

Reversed.

JOHNSON, J., concurs.

JUSTICE McMORROW,

specially concurring:

Although I agree with the majority that the facts of the instant cause do not warrant vacature of the arbitration award, I write separately to record my departure from the majority’s analogy between the conduct of arbitrators and the conduct of judges or assistant public defenders. (222 Ill. App. 3d at 811-12.) In my view, the majority’s analogy is contrary to the precedent upon which the majority relies and is not relevant to disposition of the instant appeal.

The majority’s opinion relies upon the concurring opinion of Justice White in Commonwealth Coatings Corp. v. Continental Casualty Co. (1968), 393 U.S. 145, 21 L. Ed. 2d 301, 89 S. Ct. 337, with respect to the appropriate standard by which to gauge an arbitrator’s duty to disclose grounds that could reveal the arbitrator’s potential bias. In that concurring opinion, however, Justice White distinguished between judges and arbitrators, and specifically noted, “The Court does not decide today that arbitrators áre to be held to the standards of judicial decorum of Article III judges, or indeed of any judges. It is often because [arbitrators] are men of affairs, not apart from but of the marketplace, that they are effective in their adjudicatory function. [Citation.]” (393 U.S. at 150, 21 L. Ed. 2d at 305, 89 S. Ct. at 340 (White, J., concurring).) Similarly, in Merit Insurance Co. v. Leatherby Insurance Co. (7th Cir. 1983), 714 F.2d 673, upon which the majority also relies, the court emphasized the distinction between the appropriate standard of judicial conduct as compared to that applicable to arbitrators. 714 F.2d at 679, 682; see also Morelite Construction Corp. v. New York City District Council Carpenters Benefit Funds (2d Cir. 1984), 748 F.2d 79; Toyota of Berkeley v. Automobile Salesmen’s Union, Local 1095 (9th Cir. 1987), 834 F.2d 751.

The majority’s analogy between judges and arbitrators contradicts this precedent. In addition, the majority’s analysis may impart a predisposition with respect to evaluation of judicial conduct, as distinguished from conduct of an arbitrator, under circumstances similar to those presented herein. I decline to adopt the majority’s analogy, and indicate no opinion respecting standards to be applied in the evaluation of judicial conduct.

The majority’s references to standards of judicial conduct, judicial evaluations by local bar associations, friendships between members of the bench and bar, and conflict of interest of the public defender’s office are superfluous to the question posed in the instant cause. The heart of the issue in the case at bar is whether the arbitrator’s failure to disclose his representation of a nonparty in a separate lawsuit against an insured of State Farm created an appearance of bias sufficient to vacate the arbitration award. Our courts have adopted the Federal standard, drawn from Justice White’s concurrence in Commonwealth Coatings, with respect to vacature of arbitration awards because of an arbitrator’s appearance of bias. See Calabrese v. State Farm Mutual Automobile Insurance Co. (1989), 187 Ill. App. 3d 349, 543 N.E.2d 215; Grane v. Grane (1985), 130 Ill. App. 3d 332, 473 N.E.2d 1366; Freeport Construction Co. v. Star Forge, Inc. (1978), 61 Ill. App. 3d 999, 378 N.E.2d 558; see also Sarnoff v. De Graf Brothers, Inc. (1990), 196 Ill. App. 3d 535, 554 N.E.2d 335; J & K Cement Construction, Inc. v. Montalbano Builders, Inc. (1983), 119 Ill. App. 3d 663, 456 N.E.2d 889.

Under the Federal court’s jurisprudence, an appearance of bias is sufficient to set aside an arbitrator’s award where the record shows that the relationship creating the appearance of bias “was so intimate — personally, socially, professionally, or financially — as to cast serious doubt on [the arbitrator’s] impartiality.” (Merit, 714 F.2d at 680.) In order to set aside the arbitrator’s award, the “circumstances [must be] such that a man of average probity might reasonably be suspected of partiality” and “must be powerfully suggestive of bias.” (Merit, 714 F.2d at 681.) Courts have examined “(1) the financial interest the arbitrator may have in the proceeding; (2) the directness and nature of the alleged relationship between the arbitrator and a party to the proceeding; and (3) whether the relationship existed at the same time as the challenged proceeding. [Citation.]” (Sun Refining & Marketing Co. v. Statheros Shipping Corp. (S.D.N.Y. 1991), 761 F. Supp. 293, 299.) The courts “pragmatically ‘employ[ ] a case-by-case approach in preference to dogmatic rigidity.’ ” Sun Refining, 761 F. Supp. at 298, quoting Andros Compania Maritima, S.A. v. Marc Rich & Co. (2d Cir. 1978), 579 F.2d 691, 700.

Applying this precedent to the instant cause, the record discloses insufficient evidence to conclude that the arbitrator’s conduct was adequate to set aside his award. Plaintiff points to no more than the circumstance that the arbitrator, in his separate capacity as an attorney in private practice, had a pending lawsuit against an insured of State Farm. There is nothing in the record to reveal that the arbitrator had any contact, whether professional, business, or social, with the attorney representing State Farm in the arbitration proceeding. Plaintiff does not contend that the arbitration proceeding was unfair or improper, or that the arbitrator appeared partial or biased in his handling of the arbitration hearing. Moreover, plaintiff is unable to demonstrate that the arbitration award was improper or irregular. In light of all of these circumstances, I agree with the majority’s determination that the facts of record in the instant cause did not warrant the vacature of the arbitrator’s award because of an appearance of bias.

For these reasons, I specially concur.


author: PRESIDING JUSTICE RAKOWSKI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY GOLIDAY, Defendant-Appellant.
    First District (6th Division)
    No. 1—88—3195
    Opinion filed December 6, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Pamela Pfrang, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Judy DeAngelis, Special Assistant State’s Attorney, and Renee Goldfarb and Sari London, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE RAKOWSKI

delivered the opinion of the court:

After a jury found defendant-appellant Jerry Goliday guilty of murder, he was sentenced to a term of imprisonment of 24 years. Defendant raises a number of issues on appeal, including: (1) whether the use of an erroneous voluntary manslaughter instruction at defendant’s trial requires this court to reverse defendant’s conviction and order a new trial; and (2) whether the State failed to disprove the affirmative defense of self-defense beyond a reasonable doubt. We reverse defendant’s conviction and remand for a new trial.

The following testimony was elicited at trial. Defendant’s girl friend, Salen Holman, lived with her mother, Ruthie May Jenkins, her child (by defendant), her brother, Dwayne Holman, and the victim, Ray Dennis, at Dennis’ apartment.

Salen testified that on June 15, 1987, when she and defendant talked in the bedroom, defendant became increasingly angry when she told defendant that they could not get back together. According to Salen, defendant was drinking vodka and said “let me finish drinking my stuff because I am fixing to kick some ass.” Defendant then began tugging at her shirt, and slapped her in the face. When the victim came into the room, he grabbed defendant’s arm and Salen got away. Defendant chased her, swinging the bottle of vodka at her. Salen left the apartment, but defendant caught her on the street and after threatening to cut her face with the bottle, dragged her by the hair back to the apartment.

When they got to the front door, defendant proceeded into the unit, while Salen stayed outside for five or six minutes. Salen then said she observed the victim slumped over and coming up the stairs with defendant almost on his back, stabbing him with a knife several times. Salen and her brother then ran out of the apartment and flagged down a police car. When Salen returned to the apartment, she saw the victim on the bed with her mother wiping his head with a towel.

Dwayne Holman testified that when defendant came back to the apartment, defendant .punched the victim in the head, causing the victim to collapse. Dwayne ran to the dresser and got a knife and he and defendant tussled, during which time Dwayne stabbed defendant three times. After defendant had been cut, Dwayne dropped the knife to the floor. Defendant picked it up and then stabbed the victim twice in the head as the victim was walking to his bedroom. The victim tried to get out the door, but defendant jumped on the victim’s back and continued to stab him in the head. Dwayne then grabbed his sister, and they ran until they saw a squad car. Dwayne acknowledged on cross-examination that he never told the police that he had gotten the knife first. Dwayne Holman testified further that at the time of trial he was in the custody of the juvenile Department of Corrections at St. Charles. He was there for violation of probation and a parole hearing was forthcoming. His delinquent adjudications for theft, robbery and armed robbery were pointed out on cross-examination.

Ruthie May Jenkins, Salen’s mother and the victim’s girl friend, testified to substantially the same events as Salen and Dwayne. She said that when Dwayne woke her and the victim, she saw defendant chasing Salen with a bottle in his hand. She told Dwayne to call the police, but then defendant returned to the apartment and hit the victim in the eye. When the victim fell toward her at this time, she went to get a towel to wipe the blood. When she returned, defendant and the victim were outside of the apartment. The victim then staggered back into the apartment, bleeding. Ruthie tried to get the victim on the bed, but defendant came back in and repeatedly stabbed the victim in the head again. When she tried to go to the victim’s aid, defendant hit her, knocking her unconscious. Then, the police arrived. Ruthie did not inform the police that Dwayne was the first to get the knife, and she did not see Dwayne stab defendant although she did see defendant pick the knife up off the floor.

Chicago police officer Dennis Jackson testified that at about 6:40 a.m. on June 15, 1987, he saw two teenagers run up to his squad car and they informed him that there had been a stabbing at 427 East Oakwood. They proceeded to the location, where he observed the victim’s face covered with blood. An ambulance was summoned, the knife was pointed out to Jackson, and he was told that the offender was defendant. Jackson was also advised where defendant lived and what defendant was wearing.

Dr. Edmund R. Donoghue, a pathologist who performed the autopsy on the victim, testified that the victim died as a result of multiple stab wounds to the head, back, face and shoulders.

Chicago police officer Gil Erbacheo testified that on June 15, 1987, at about 7 a.m. he placed defendant under arrest. Defendant was able to walk on his own, but was brought to Provident Hospital. Defense counsel attempted to elicit from Officer Erbacheo what defendant had said at the time he was arrested, but the trial court disallowed the testimony. Likewise, defense counsel was not allowed to elicit from the officer whether defendant was given shots or pills at the hospital.

In his own behalf, defendant testified that early in the morning on June 15, 1987, defendant, who was 17 at the time, walked to Dennis’ apartment. Defendant had been there many times as a guest before. On this occasion, defendant was upset due to Salen having broken up with him two days before. Earlier in the evening, defendant had been drinking with a friend. Defendant arrived at the apartment at about 2:30 a.m., and was let in to the apartment by 16-year-old Dwayne Holman.

When defendant arrived, he found Salen, Ruthie May and Ray Dennis drinking in a bedroom. Defendant spoke with the group for about a half hour, and then defendant and Salen went into Salen’s bedroom to feed the baby. The conversation turned to why Salen had broken up with defendant. When Salen refused to explain the presence of a new necklace she was wearing, defendant slapped her more than once. The other individuals at the apartment came to the room, but Salen ran from the apartment with defendant following her. Defendant then pulled Salen back to the apartment.

According to defendant, when he reentered the apartment, the victim struck defendant on the left shoulder with a baseball bat. Defendant and the victim tussled with the bat, when Dwayne came at defendant from behind and stabbed him with a knife. Defendant punched Dwayne and Dwayne dropped the knife. The victim continued to swing at defendant with the bat. Defendant picked up the knife, rushed at Dennis and stabbed him once beneath the left shoulder. The two men then struggled over the knife, and the altercation moved to a bedroom. During the struggle, defendant stabbed the victim several more times. Defendant’s finger was cut, and he testified that he was fighting for his life. Eventually, the victim gave up.

Defendant then dropped the knife and ran from the apartment. When he got home, his mother saw that he was injured and called the police and an ambulance. The police came and took defendant to the emergency room at the hospital. Defendant testified that he was medicated at the hospital and went to sleep. Later, defendant was awake but still drowsy when he spoke with the police and an assistant State’s Attorney. Because defendant was so sleepy, he could not remember what he said at this time.

Defendant denied that he hit Ruthie or that he stabbed the victim while the victim was on the ground. Defendant testified that he stabbed the victim while the victim faced him. Defendant acknowledged that at the time of the occurrence, he weighed about 200 pounds, while the victim weighed about 142 pounds. Defendant considered himself to be the victim, although defendant admitted that he did not report what happened to the police.

The parties stipulated that if Russel Born were to testify, he would state that on September 7, 1988, he had a conversation with Dwayne Holman in the conference room of the court room. During this conversation, Dwayne stated that both he and the victim were “tusseling [sic]” with defendant after Holman had stabbed defendant. Further, the stabbing of defendant occurred in the kitchen area.

Additionally, it was stipulated that Officer Rooks would testify that he spoke with Ruthie May Jenkins at the scene of the occurrence. Jenkins told Rooks that she had-found the knife involved lying on the floor near the television.

In rebuttal, the State called Assistant State’s Attorney Peter Fischer, who testified that on June 15, 1987, he was assigned to the felony review unit of the State’s Attorney’s office. Fischer was assigned the instant case and went to Provident Hospital, where he spoke to defendant. According to Fischer, defendant waived his Miranda rights and related the following to Fischer. Defendant told Fischer that he had struck his girl friend several times, that Dwayne Holman came to the room and defendant told Dwayne to leave. He and Salen continued to argue, with the argument moving from the bedroom to the kitchen. Defendant further told Fischer that Dwayne came into the kitchen area with a knife, accompanied by Ruthie and the victim. Dwayne then jumped on defendant and stabbed him, and defendant hit Dwayne. Dwayne dropped the knife, which defendant picked up. Then, according to Fischer, defendant stated that he turned toward the victim, who approached defendant "with a baseball bat. Defendant told Fischer that he stabbed the victim about five times, dropped the knife and ran to his mother’s house. Fischer said that the conversation lasted about 10 minutes, and that during the conversation, defendant appeared alert and not drowsy.

The first issue we address is whether the use of an erroneous voluntary manslaughter instruction at defendant’s trial requires this court to reverse defendant’s conviction and order a new trial.

The State first argues that under the facts of this case, defendant was not entitled to a voluntary manslaughter instruction in the first place. The record, however, clearly reveals evidence, which if believed by the jury, entitled defendant to such an instruction.

In People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141, the Illinois Supreme Court held that the giving of a similar instruction to the jury as was given in this case was error. Reddick errors, however, can still be harmless. In the recent case of People v. Shields (1991), 143 Ill. 2d 435, 445, 575 N.E.2d 538, the supreme court observed “our subsequent decisions have recognized that the errors identified in Reddick may indeed be harmless in appropriate cases.” In rejecting a rule of automatic reversal, the court observed that “the instructions should not be judged in artificial isolation but must instead be considered in light of the record as a whole, including the evidence and arguments presented to the jury.” (143 Ill. 2d at 446, citing Cupp v. Naughten (1973), 414 U.S. 141, 146-47, 38 L. Ed. 2d 368, 373, 94 S. Ct. 396, 400.) Here, the error, which is constitutional in nature, will be deemed harmless if it can be shown beyond a reasonable doubt that it was harmless. See Shields, 143 Ill. 2d at 446-47, citing Chapman v. California (1967), 386 U.S. 18, 24, 17 L. Ed. 2d 705, 710-11, 87 S. Ct. 824, 828.

In our view, the instructional error in this case was not harmless beyond a reasonable doubt. While there clearly was sufficient evidence which, if believed, would support the conviction, there was other evidence which, if believed, would support a claim of unreasonable belief manslaughter. Defendant did, after all, testify that the victim struck him with a baseball bat, that he was stabbed by Dwayne Holman as he struggled, and that the victim again came at him with the bat. Further, the victim’s alcohol level was .336. Other factors which support a holding of lack of harmlessness include the inebriation of the witnesses, the impeachment of Dwayne and prior inconsistent statements of the occurrence -witnesses. Dwayne, for example, had told Russell Born that at the time of the stabbing, both he and the victim were struggling with defendant, contrary to his trial testimony. Although both Dwayne and Salen testified that Ruthie May was intoxicated, Ruthie May denied that either she or the victim was intoxicated at the time. Further, there was no physical evidence supporting the occurrence witnesses’ version of the incident, that stabbings occurred outside the apartment in the hall. Accordingly, we are unable to say with certainty that the trial court’s result would have been the same had a proper instruction been given. See People v. Harris (1989), 133 Ill. 2d 118, 547 N.E.2d 1241; People v. Fierer (1988), 124 Ill. 2d 176, 529 N.E.2d 972.

We next address whether the State failed to disprove the defense of self-defense beyond a reasonable doubt. (See People v. Taylor (1979), 76 Ill. 2d 289, 391 N.E.2d 366.) Defendant argues that some of the “physical evidence” (apparently the location of bloodstains) contradicts the occurrence witnesses’ version of the incident. Also, defendant notes that Dwayne Holman was impeached at trial, and that Ruthie May Jenkins was intoxicated at the time of the incident. Thus, according to defendant, the defense of self-defense was not disproved beyond a reasonable doubt.

The requirements for determining whether the use of force is justified as self-defense are as follows:

“ ‘(1) [T]hat force is threatened against a person; (2) that the person threatened is not the aggressor; (3) that the danger of harm is imminent; (4) that the force threatened is unlawful; (5) that the person threatened must actually believe: (a) that a danger exists, (b) that the use of force is necessary to avert the danger, (c) that the kind and amount of force which he uses is necessary; and (6) that the above beliefs are reasonable.’ ” (People v. Crum (1989), 183 Ill. App. 3d 473, 482, 539 N.E.2d 196, quoting People v. Kyles (1980), 91 Ill. App. 3d 1019, 1021, 415 N.E.2d 499.)

(See Ill. Rev. Stat. 1987, ch. 38, par. 7 — 1.) The determinative question where deadly force is used is whether defendant’s belief that it was necessary to use deadly force was reasonable under the circumstances. People v. Collins (1989), 187 Ill. App. 3d 531, 534, 543 N.E.2d 572.

After reviewing the record sub judice, we conclude that there was sufficient evidence to support defendant’s conviction. When an appeals court reviews the sufficiency of evidence, “ ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 461, 472, quoting Jackson v. Virginia (1979), 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573-74, 99 S. Ct. 2781, 2788-89.) Discrepancies in the testimony of witnesses go to the issue of credibility, which must be judged by the trier of fact. (People v. Thomas (1981), 96 Ill. App. 3d 443, 450, 421 N.E.2d 357, 363.) Where there is a disputed question as to self-defense, it is a question for the jury to decide (see People v. Feierabend (1981), 98 Ill. App. 3d 731, 736, 424 N.E.2d 765), and it is for the jury to decide what witnesses to believe and what weight to give their testimony. People v. Collins (1985), 106 Ill. 2d 237, 261-62, 478 N.E.2d 267.

Here, while defendant was clearly tussleing with and stabbed by Dwayne Holman, the witnesses testified that defendant was not threatened by the victim in the manner defendant testified. The fact that blood may have been found in areas of the apartment not specifically accounted for in the witnesses’ testimony is not particularly troublesome, as both the defendant and the victim were stabbed repeatedly, the victim staggered within the apartment and the incident, by all accounts, went from room to room. The credibility of the witnesses and defendant was for the jury, and we hold that the jury’s resolution was not so improbable or unsatisfactory as to require outright reversal.

We have considered the other issues defendant presents and consider them unlikely to recur or without merit.

Accordingly, the judgment of the circuit court is reversed and remanded for a new trial.

Reversed and remanded.

EGAN and LaPORTA, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD PARSONS, Defendant-Appellant.
    First District (6th Division)
    No. 1—90—1038
    Opinion filed December 6, 1991.

      Altheimer & Gray, of Chicago (Mark T. Hechinger and Phillip J. Zisook, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Veronica X. Calderon, and Ketki M. Shroff, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE RAKOWSKI

delivered the opinion of the court:

Defendant-appellant Ronald Parsons was charged by information with possession of more than 15 grams of a controlled substance, namely cocaine, with intent to deliver. A jury found defendant guilty of the charge, and defendant was sentenced to a term of imprisonment of 12 years, three years’ mandatory supervised release and a fine of $40,000. Defendant appeals this judgment requesting that his conviction be reversed outright, remanded for a new trial or remanded for an evidentiary hearing.

Chicago police officers Frank Goff, Victor Guerrieri and Gerry Hutch testified at trial. They related that on August 4, 1987, they were at the home of Ronald Nemerow, along with Detective Abreu. The reason for their presence was to execute a search warrant for marijuana. During execution of the warrant, Nemerow asked how he could become an informant. Nemerow was told that he would have to give the officers two arrests to prove himself reliable, and the amount he would be paid would depend on the amount of drugs eventually seized. Nemerow asked the officers, “How about if I could get you four ounces?” Officer Goff told Nemerow that this would be a good start.

Nemerow proceeded to make a phone call. Goff testified that Nemerow said “Hi, its me. Yeah. You got that information we talked about. Yeah. Where? What time? Okay.” Nemerow then hung up the phone and told the officers to go to the Edens Plaza shopping center, and that there defendant would have four ounces of cocaine. Both Nemerow and his van were searched. In the van, the officers found a number of electric ceiling Casablanca fans and track lighting fixtures. The officers and Nemerow then proceeded to the shopping plaza.

Once there, Nemerow parked his van near the entrance to a store. One of the police officers stayed in the van while Officers Goff and Abreu stationed themselves in the entranceway to the store. Defendant drove his car, a white Volvo station wagon, into the parking lot, circled the area and parked across from the van. Defendant’s car was about 100 feet from the van and faced in the opposite direction. Goff and Abreu, who were in undercover garb, were about 100 feet from defendant’s vehicle.

Nemerow then exited his van and walked toward defendant’s car. At this time, Goff and Abreu began to approach the vehicle as well. Goff testified that when he got to a point of about 15 feet from the vehicle, he saw defendant peer over his shoulder and peel the horn section of his car off. Defendant then removed a clear plastic bag containing white powder from the steering column. According to Goff, when defendant saw the officers, he tried to put the bag back into the steering column. The officers were on the driver’s side of defendant’s vehicle.

All of the officers testified that Nemerow never entered defendant’s car. The distance from the car Nemerow got, however, varied from the officers’ accounts, from being alongside the car to 15 feet away. The officers testified that as defendant saw them, he tried to drive away, but that his car was blocked by another officer in a police vehicle. Goff testified that Abreu entered defendant’s car and recovered a bag of cocaine from the horn section. Goff testified at trial that he took a second bag from the horn section, although at a hearing on a motion to suppress Goff had testified that he wasn’t sure whether it was Abreu or Goff himself who recovered the second bag. Officer Guerrieri testified that Goff removed both bags, while Officer Hutch testified that he saw Goff remove one bag. It was stipulated that 218.53 grams of cocaine were recovered from defendant’s car.

Defendant testified in his own behalf. He stated he did not even know what four ounces of cocaine looked like. He was 49 years old at the time of trial and had no prior convictions. He was in the real estate business and had a net worth of over $2 million, primarily through real estate investments in condominiums and shopping centers.

Defendant knew Nemerow through a lease agreement regarding a condominium unit located in Vernon Hills, Illinois. The named lessee was Nemerow’s girl friend, although Nemerow paid the rent. Defendant collected his own rents and saw Nemerow once a month for this purpose. Also, Nemerow sold various goods after buying out store inventories. Defendant had purchased carpeting and sweatshirts from Nemerow.

In July of 1987, defendant was remodeling his basement and arranged to purchase track lighting and four Casablanca ceiling fans from Nemerow. On August 4, 1987, Nemerow called defendant. Defendant asked if Nemerow had the lights and fans, and Nemerow, according to defendant, said “Yeah.” They decided to meet at the Edens Plaza and not at the condominium because Nemerow said he wanted to remain near his address.

Defendant further testified that he drove his car in the parking lot and parked it next to Nemerow's van. Nemerow then debarked from the van and entered defendant’s car. Within seconds, two men approached the car. Defendant said that Nemerow put a plastic bag on the floor, and then said “Get the hell out of here.” Defendant drove a few car lengths but was cut off by a car. Defendant then got out of his car, and the police pulled Nemerow from the passenger seat. Defendant said that both he and Nemerow were then searched. According to defendant, Officer Abreu went in the car, held up the bag Nemerow had dropped and said “We got the cane.” Goff never entered the car. Defendant denied ever removing the horn assembly and placing any cocaine in his car.

During the hearing on post-trial motions, defendant was allowed to make a statement on his own behalf. During this statement, which included arguments in mitigation and numerous other matters, defendant made the following comments:

“Sam [defense counsel] is overworked. I think Sam when he gets out on the floor here, you can’t get any better. But if you take a juggler and give him four balls and then five balls, and then eight balls and then ten balls, sooner or later there is going to be mistakes made *** Sam’s got a system that he’s got like tunnel vision. He only works at one case at a time. For two and a half years I’m on the outside and Sam doesn’t talk to you and its frustrating.
* * *
Over the two and a half years, twice I set up a deposition meeting with Ron Nemerow to come down to Sam’s office. One time it took about two months to set up this meeting because Sam is too busy. *** And its hard to set up appointments with Sam, you know, you’ve been here; how many times have I shown up for court and Sam is in Springfield. Sam is some place else.
* * *
But twice I set up depositions so we could get Nemerow down there [at defense counsel’s office] *** I talked him into coming down to Sam’s office. The first time I sat in Sam’s office with Ron Nemerow for three and a half hours; Sam never showed up. The second time I’m walking in through the vestibule and Sam says T can't do it right now; call me tomorrow.’ Well there goes the deposition right down the toilet.
On Monday morning when our trial started, Sam looks over at me and he says ‘Who is Helen Velante[,]’ one of the witnesses *** he doesn’t know who my witnesses are ***. And it wasn’t Helen Velante, it was her son *** we don’t have a witness[.]
* * *
Sam didn’t even know until after the thing was done that I had a land contract selling my condominium to Ron Nemerow.
* * *
Sam didn’t even knoyz my business. He introduced me as a real estate agent. I never have been a real estate agent.”

When defendant observed during the statement that his counsel was not present when the jury returned with its verdict, defendant observed, however: “There is nothing wrong with Sam. He’s a good, good attorney ***.” During defendant’s statement, he referred to a “three-page confession or summary” that Nemerow had given him. This document described, according to defendant “how the day went,” and defendant further related that Nemerow had apologized to him. Also at the hearing, defendant’s wife stated: “Ron Nemerow has called me a couple of times, and the last point was the date that the jury came in with a guilty verdict. He called from Joliet stating that he was very sorry for the drugs that he dropped in Ron’s car ***. He’s called me twice on that.” The three-page document defendant referred to, the record reveals, was in defense counsel’s possession prior to trial. While it was shown to the State, it was never introduced into evidence and is not part of the record on appeal.

The first issue we address is whether the trial court erred in failing to hold a hearing or conduct further inquiry based on defendant’s statements at the hearing on post-trial motions.

Defendant contends that based on the facts of this case, “the trial judge was under a duty to make inquiry of defense counsel concerning the post-trial allegations” raised by defendant and his wife. According to defendant, “a real issue of neglect by defense counsel was raised.” A number of factual contentions of defendant are not borne out by the record. It is clear that defendant claimed the defense of entrapment, not in his answer to discovery filed on the day of trial, but had raised the defense in his previous answer to discovery. Also, defense counsel never actually said during opening statement, as defendant contends, that the jury would hear Ron Nemerow’s testimony, although defense counsel did comment upon Nemerow, indicating, for example, that Nemerow was arrested for drug offenses after the incident forming the basis of the instant charge.

With regard to the three-page statement of Nemerow — this document was never introduced into evidence and is not part of the record on appeal. While defendant has not argued the document’s admissibility or that failure to move to introduce the document was neglect, it would appear to tie in heavily to the issue of defense counsel’s alleged neglect in failing to interview or call Nemerow as a witness. The record does reveal that defense counsel showed this document to the State, and in conference with the trial judge, assured the court that if the State did not call Nemerow, defendant would call Nemerow.

While defendant did not formally present a pro se petition alleging ineffective assistance, but rather made his statements during the sentencing phase of the post-trial motion hearing, the State does not contend that this is a reason why we should not apply the law pertaining to such a motion, nor do we perceive that it should be. Other matters upon which defendant appears to base his neglect case are the naming in answer to discovery of the -wrong witness, Helen Velante, when the witness who should have been named previous to trial was Helen Velante’s son. Defendant’s brief leaves us bereft of any reason why the failure to name or call this witness prejudiced defendant in any way. The witness appears from the record to simply have been at the informant’s house when it was searched by the police. Also, defendant contends that his trial counsel should have revealed the existence of the lease between defendant and Nemerow’s girl friend earlier than defense counsel did. It was turned over to the State during the course of the trial, and the trial judge ruled it inadmissible.

In support of his position that defense counsel neglected this case, defendant cites two cases. In People v. Krankel (1984), 102 Ill. 2d 181, 464 N.E.2d 1045, the defendant made a formal pro se motion alleging ineffective assistance of counsel and stated that he had informed .his counsel prior to trial of the existence of an alibi witness and an affirmative defense, but that trial counsel had failed to contact the -witness or raise the affirmative defense. The Illinois Supreme Court held that defendant should have had other counsel than his trial counsel to represent defendant on the ineffective assistance claim, and remanded the matter for a new hearing. In People v. Jackson (1985), 131 Ill. App. 3d 128, 474 N.E.2d 466, the defendant wrote to the trial judge, informing the judge that defendant’s attorney was ineffective in representing defendant. At the hearings on post-trial motions, defendant verbalized his complaint, which went to his counsel’s failure to call a witness to testify, who had in fact been interviewed by trial counsel. Trial counsel then stated why the witness had not been called (matters relating to the inability of the witness to place defendant at the witness’ place of business at the time of the crime, and the cumulative nature of other testimony of the witness). The trial court denied defendant’s motion, and the appellate court affirmed, stating:

“In our opinion, the problems created by a defendant who, during post-trial proceedings, claims that his attorney has ineffectively represented him during trial, are best met by the objective tests ***. tñal court should examine the factual matters underlying the defendant’s claim. There are several matters to be determined. If the claim goes to matters of trial tactics or strategy, the defendant’s claim should be found spurious and his request for new counsel denied. *** If, however, the factual matters show possible neglect of the defendant’s case, the court should appoint new counsel who can undertake an independent evaluation of the defendant’s claim and present the matter to the court from a detached, yet adversarial, position. This was the case in Krankel, where defendant alleged that his attorney failed to interview an alibi witness.
It seems elementary that during the evaluation of defendant’s claims, some interchange between the court and the defendant’s attorney must take place. Such an interchange is necessary to avoid potential abuses by those who would falsely claim situations of the Krankel type. *** [C]ounsel may simply answer questions and explain the facts and circumstances surrounding matters which are alleged by his client to demonstrate that he was not adequately represented at trial.” 131 Ill. App. 3d at 139.

Most recently, the Illinois Supreme Court has spoken on this issue in the case of People v. Nitz (1991), 143 Ill. 2d 82, 572 N.E.2d 895. There, defendant made a pro se motion for a new trial, alleging that his trial counsel was incompetent for failing to call witnesses defendant claimed would have provided evidence of his defense. In Nitz, the trial court listened to defendant’s arguments as well as defense counsel’s explanations for not calling the witnesses to testify. Then, the court ordered an evidentiary hearing regarding the failure to call some of the witnesses, and the trial court allowed defendant’s counsel to examine the witnesses whose testimony could prove trial counsel ineffective. The court held that allowing trial counsel to do so was error, yet held the error to be harmless. Prior to announcing its holding, however, the court observed:

“In interpreting Krankel, our appellate court has concluded that there is no per se rule that new counsel must be appointed every time a defendant presents a pro se motion for a new trial alleging ineffective assistance of counsel. [Citations.] Rather, to determine whether new counsel should be appointed, ‘the trial court should examine the factual matters underlying the defendant’s claim[.] *** [I]f the claim lacks merit or pertains to matters of trial strategy, then no new counsel need be appointedf, but] if the allegations show possible neglect of the case *** new counsel [should] be appointed.’ [Citation.]
We agree with the appellate court’s interpretation of Krankel. If the trial court conducts a preliminary investigation of the defendant’s allegations and determines them to be spurious or pertaining only to trial tactics, no new counsel need be appointed to represent the defendant. If, however, the defendant’s allegations of incompetence indicate that trial counsel neglected the defendant’s case, the court should appoint new counsel to argue defendant’s claims of ineffective assistance of counsel.” 143 Ill. 2d at 134-35.

It seems apparent from Nitz and is spelled out in Jackson (which the Nitz court cited approvingly) that there should be some interchange between the trial court and the defendant’s trial coutisel to explain complained-of possible neglect. Here, it seems clear that there was possible neglect. When one considers defendant’s statement that his counsel failed to interview the informant, defendant’s wife’s comment that the informant told her he dropped the cocaine in defendant’s car, and the existence of a written statement from the informant, whose precise contents are unknown to this court, but which may have been helpful to defendant, a serious question emerges as to whether Nemerow’s testimony would have helped defendant. The record does not make clear that the decision not to call Nemerow as a witness was trial strategy— the facts imply the possibility that Nemerow was never even interviewed by defendant’s counsel. The failure to call the witness (whose mother was erroneously disclosed) and the failure to reveal the existence of a lease seem to be quite harmless, given the apparent irrelevance of the witness’ testimony and the cumulative nature of the lease.

It is not clear that the same could be said of favorable testimony on the part of Nemerow, whom defendant’s counsel repeatedly stated in the record would be a witness at trial. The trial court did not follow up on defendant’s complaints and ask for an explanation from trial counsel, as the cases indicate should occur. While the record reveals that defense counsel secured Nemerow’s presence at trial, it does not establish that Nemerow was actually interviewed. Absent any explanation from trial counsel as to why Nemerow was not called and the lack of a showing that Nemerow was actually interviewed, we hold that the case is to be remanded for clarification of this issue.

In holding as we do, we emphasize that we are not remanding for a full evidentiary hearing and appointment of counsel on the issue of trial counsel’s incompetence. Rather, we remand only for the purpose of the interchange mandated by Jackson and Nitz. If, for example, defendant’s trial counsel indicates to the court that Nemerow was in fact interviewed and that counsel determined Nemerow’s testimony would not be helpful to defendant, then the matter would clearly be one of trial strategy, and defendant’s informal pro se motion would properly be denied. We reject the implication of the State at oral argument that the trial court was in a position to reject defendant’s factual contentions made at the hearing based upon conduct of counsel at the trial when such conduct does not resolve or contradict defendant’s factual contentions.

The next issue we address is whether defendant was proven guilty beyond a reasonable doubt. Essentially, defendant points to certain inconsistencies in the officers’ testimony relating to how far the informant was from defendant’s car at the time of the incident, which officers actually grabbed the bags of cocaine, and whether one officer was in the informant’s van or not. Defendant also would have us infer that both the informant’s and Officer Abreu’s testimony would have been unfavorable to the State.

First of all, the inconsistencies as to positioning of the officers during the incident and who took the bags from the car are not major enough to create serious doubts about the officers’ testimony. The officers were clear in testifying that the informant did not reach the car and that defendant himself peeled away the horn compartment and grabbed the bag. While defendant testified differently, this was an issue of fact for the trier of fact. It is for the jury to decide what witnesses to believe and what weight to give their testimony. People v. Collins (1985), 106 Ill. 2d 237, 261-62, 478 N.E.2d 267.

Defendant relies heavily on our recent case of People v. Johnson (1989), 191 Ill. App. 3d 940, 548 N.E.2d 433, where the court did draw an adverse inference to the State due to the State’s unexplained failure to call the informant. In Johnson, however, the facts revealed an unjustifiable refusal on the part of the State to tender the informant to the defense for interview, and the police testimony was inherently suspect. Here, it is apparent that Nemerow was available to defense counsel for both interview and testimony at trial. Moreover, as the State points out, cases have held that the uncalled witness must have testimony “unique to the case in order to give rise to this negative inference.” (People v. Ayala (1990), 208 Ill. App. 3d 586, 597, 567 N.E.2d 450.) Here, the officers and the defendant both presented their testimony as to whether the informant reached defendant’s car and planted the cocaine.

The next issue we address, related to the last, is whether the trial court erred in refusing defendant’s proffered jury instruction regarding the State’s failure to call the informant and a police officer at trial.

Given the availability of the witnesses to the defense as well as the State (defendant has not argued the unavailability of either witness to him) and the fact that the testimony was not unique, defendant was not entitled to the instruction. The record reveals that Officer Abreu was on medical leave at the time of trial, so there is an explanation for his absence, and defense counsel in fact had secured Nemerow’s presence, so that Nemerow was in the lockup during the trial. We therefore hold that the trial court did not abuse its discretion in failing to provide the non-Illinois Pattern Jury Instruction in this case, as this case is not a case where the negative inference should arise. See Ayala, 208 Ill. App. 3d 586, 567 N.E.2d 450.

Finally, defendant argues that the trial court erred in refusing to allow defendant to admit the copy of the lease between defendant and the tenant of the apartment. The lease defendant sought to have introduced was turned over to the State only during the trial. Discovery had long since been completed and there was no error in the court’s disallowing its introduction. Moreover, defendant himself testified to the lease that Nemerow paid on, so the lease itself was only cumulative as evidence. Any error occurring thus was harmless.

Accordingly, the judgment of the circuit court is affirmed in part, reversed in part and remanded with directions.

Affirmed in part; reversed in part and remanded with directions.

McNAMARA and LaPORTA, JJ., concur.