author: JUSTICE SPITZ JUSTICE STEIGMANN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK COLE, Defendant-Appellant.
    Fourth District
    No. 4—89—0143
    Opinion filed February 15,1990.

      STEIGMANN, J., specially concurring.
    Daniel D. Yuhas and M. Jeffrey Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Scott H. Walden, State’s Attorney, of Quincy (Kenneth R. Boyle, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SPITZ

delivered the opinion of the court:

After a jury trial, defendant was convicted of two counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1987, ch. 38, par. 12— 16(d)) and was sentenced to concurrent three-year terms of imprisonment. Defendant appeals, arguing (1) the trial court erred in allowing testimony concerning hearsay statements made by the alleged victim to an acquaintance and to her mother on the day following the alleged offense; (2) he was not proved guilty beyond a reasonable doubt because the alleged victim’s testimony concerning the offense was neither clear and convincing nor substantially corroborated; and (3) the order of restitution must be reversed because the amount of restitution ordered was not based on actual losses and expenses already incurred, but on expected counseling expenses.

I. THE EVIDENCE

According to the evidence adduced at trial, defendant’s conduct on which the charge was based occurred on Sunday, July 18, 1988, at which time defendant, age 28, engaged in sexual conduct with S.L.M., a 13-year-old girl baby-sitting in his home.

S.L.M.’s family lived in La Grange, Missouri, and S.L.M.’s mother worked with defendant’s wife, Mrs. Cole, at a laundromat in Quincy, Illinois. Mrs. Cole had mentioned to S.L.M.’s mother that Mrs. Cole was having some difficulty in finding baby-sitters for her two young daughters, who were seven and eight years old. S.L.M.’s mother then offered her two teenage daughters to baby-sit for Mrs. Cole and agreed to permit S.L.M., one of her daughters, to baby-sit on the night of Saturday, July 17, 1988, at the Coles’ home in Mendon, Illinois.

Because of the lateness of the hour at which Mrs. Cole expected to return home, Mrs. Cole and S.L.M.’s mother agreed that S.L.M. would spend the night at the Cole home. On the following day, S.L.M. accompanied the Cole family swimming in the afternoon and bowling in the evening. Mrs. Cole’s daughters then asked that S.L.M. be allowed to spend an additional night at their home, and S.L.M.’s mother agreed.

The Cole daughters went to bed about 9 p.m. on Sunday night, and Mrs. Cole retired at about 11:30 p.m. Defendant and S.L.M. stayed up, talking and watching television in the living room. Mrs. Cole, sleeping in the couple’s bedroom just off the living room and within 10 feet of the living room sofa, dozed in and out of sleep and heard the television as background noise without being able to understand the words spoken. S.L.M. was to sleep on the sofa.

S.L.M. testified that when Mrs. Cole went to bed, defendant was sitting on the opposite end of the sofa and he started putting S.L.M.’s bare feet on his legs. She pulled her feet away, but he put them back. He then got up and moved over to her side. Then he pulled her T-shirt up and started kissing her on her chest and lips. At some point he pulled her bra down away from her breasts, pulled her blue-jean shorts off, pulled her underwear over, and put his fingers into her vagina. S.L.M. testified that this conduct, from the time defendant put her feet in his lap and through the fondling, lasted about half an hour to an hour. During this time, she did not scream or hit him, but she told him to stop. He did not. She said that after a while defendant got up and went toward the door, looked out the window, and said he saw a police officer about a block away on the corner. She said that defendant told her not to open the door, and then he started looking for papers of some kind. He later went to bed, and she remained awake for about an hour.

Mrs. Cole, scheduled to work the following morning, had agreed before she went to bed that rather than have S.L.M. get up very early in the morning to go home, S.L.M. would go home when Mrs. Cole returned from work. When Mrs. Cole left for work, S.L.M. was still sleeping. For most of Monday, S.L.M. spent the day with defendant and his daughters, but was never alone with defendant. When D.M., a 13-year-old boy S.L.M. knew, came to the Cole residence, S.L.M. told him what had happened. He was the first person whom she told. Mrs. Cole came home around 1 p.m. About 10 p.m. that night, Mrs. Cole, accompanied by her daughters, returned S.L.M. to her mother at the laundromat in Quincy. Mrs. Cole’s daughters again asked that S.L.M. be allowed to stay another night, but S.L.M.’s mother said no. After Mrs. Cole and her daughters left, S.L.M. told her mother of the events of Sunday night and early Monday morning.

The victim’s mother testified as to the baby-sitting arrangement with the Coles and their agreement that S.L.M. would stay at the Cole’s home Sunday, Sunday night, and Monday during the day. She further testified that when Mrs. Cole and her daughters brought S.L.M. to the laundromat Monday night, Mrs. Cole’s daughters asked that S.L.M. be allowed to stay overnight again. She testified that S.L.M. “kind of made a face,” so she told them that S.L.M. could not stay. The victim’s mother testified that Mrs. Cole then mentioned the possibility of S.L.M.’s baby-sitting on future weekends. She testified that after Mrs. Cole and her daughters left, S.L.M. said, “Mom, do I have to go back?” and, when she looked at S.L.M. and asked why, S.L.M. said she did not want to go back, began crying, and told her “what had happened.”

Defendant took the stand in his own behalf and denied touching or kissing S.L.M. According to defendant, after his wife went to bed on Sunday night, he left the house to call a man about buying a car. The Coles had no telephone in their home. After returning, he looked for some time cards, picked up things in the front room, got a blanket and some books for S.L.M., and went to bed. Defendant was impeached with a misdemeanor theft conviction from 1978.

Defendant’s wife testified she had been married to defendant for three years. On the Sunday night in question, her husband went to bed shortly after she did. He even came in and spoke to her several times after she went to bed. She saw nothing unusual happen that night between her husband and S.L.M., and, although she was in bed just around the corner from the couch, she heard nothing going on in the front room other than defendant and S.L.M. watching television and talking.

Mrs. Cole testified that S.L.M. was asleep when she got up to go to work in the morning. She planned to take S.L.M. back to Quincy when she took her husband to work at 3 p.m. According to Mrs. Cole, S.L.M. declined a ride back with the couple when she took defendant to work. She further testified that when she took S.L.M. back to the laundromat in Quincy Monday night, it was S.L.M. — and not her daughters — who asked if she could again stay overnight at the Coles’ residence.

II. TESTIMONY CONCERNING THE VICTIM’S STATEMENT

We first consider defendant’s argument that the statements S.L.M. made to D.M., the 13-year-old boy, at least seven hours after the alleged offense, and to her mother almost 24 hours after the alleged offense, were inadmissible hearsay because they (1) do not qualify as spontaneous declarations, and (2) were not independently admissible under the corroborative complaint rule. The State argues defendant has waived any error concerning statements of S.L.M. to D.M. or to her mother. We agree.

A. WAIVER OF ANY CLAIMED ERROR

Defendant filed a pretrial motion in limine to bar the admission of S.L.M.’s statements to various third parties, including D.M. and S.L.M.’s mother. At the hearing on that motion, defendant presented two arguments: first, the statements did not qualify as prompt complaints; and second, prompt complaint testimony is limited to testimony that a complaint of the act occurred, but does not include details of the act or identification. The State indicated it was not going to seek the admission of some of S.L.M.’s statements, and the court then ruled that D.M. and the victim’s mother could testify to the fact that a complaint had been made, but could not testify to any other details.

At trial, no objection was interposed when complainant testified about telling D.M. or her mother “what had happened” on the day after the offense. In addition, no objection was interposed when complainant’s mother was questioned on this same point. No detail of S.L.M.’s complaint was elicited from either S.L.M. or her mother. D.M. did not testify.

To preserve any issue about whether S.L.M.’s statements were timely enough to qualify as prompt complaints, objections should have been made at trial with this as the stated basis. The failure of defendant’s trial counsel to raise any objections to testimony about S.L.M.’s telling “what had happened” appears to us to be hardly inadvertent; rather, counsel’s failure appears to be due to his satisfaction with the court’s ruling on his motion in limine. That defendant now has different counsel on appeal who views the issue differently than did trial counsel is of no moment. The failure of defendant to object at trial waives this issue on appeal. Further, the issue was not preserved by post-trial motion. People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.

B. TESTIMONY CONCERNING VICTIM’S STATEMENTS IS NOT HEARSAY

On the merits, we find no error in the admission of the alleged hearsay testimony concerning S.L.M.’s statements because that testimony was not hearsay. Hearsay is defined as follows:

“ ‘Hearsay evidence is testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.’ (McCormick, Law of Evidence, sec. 225; see also, Cleary, Handbook of Illinois Evidence, sec. 31.1 et seq.)” People v. Carpenter (1963), 28 Ill. 2d 116, 121, 190 N.E.2d 738, 741.

The testimony at issue in this case relates to statements made by S.L.M. to her mother and to D.M. telling them “what had happened.” This testimony does not contain any extrajudicial statement offered to prove the truth of the statement contained therein. Instead, the testimony is a mere description, alluding in the most general terms to the subject matter of the conversation. As such, it is not hearsay.

III. SUFFICIENCY OF THE EVIDENCE

Defendant argues that the State’s case, consisting primarily of S.L.M.’s testimony, is insufficient to sustain his convictions. Defendant argues that S.L.M.’s testimony is neither clear and convincing nor substantially corroborated. We disagree. The complaining witness, a 13-year-old girl on her first baby-sitting excursion, was from La Grange, Missouri, and was baby-sitting in a house which had no phone in Mention, Illinois, for a couple with whom she had no prior acquaintance. Her testimony was unwavering. Acts of sexual fondling are, by nature, private, and the absence of witnesses other than the victim should come as no surprise. Similarly, the acts complained of in this case would be expected to leave no physical signs of abuse.

The verdicts here reflect the jury’s assessment of the credibility of the witnesses, a function particularly within its province as the fact finder. All the deficiencies in the State’s case now being argued on appeal were similarly argued to the jury which actually saw and heard these witnesses. A reviewing court will not reverse a conviction unless the evidence is so unsatisfactory or improbable that a reasonable doubt as to the defendant’s guilt remains. (See People v. Eyler (1989), 133 Ill. 2d 173, 191; see also People v. Yates (1983), 98 Ill. 2d 502, 518-19, 456 N.E.2d 1369, 1377-78, cert. denied (1984), 466 U.S. 981, 80 L. Ed. 2d 836, 104 S. Ct. 2364.) This is not such a case.

IV. THE ORDER OF RESTITUTION

The presentence report in this case referred to the victim-impact statement, which stated professional counseling for S.L.M. was expected to take three to six months, listing “anticipated expenses” as $400 to $500. Defense counsel argued for imposition of a four-year term of probation, including an order of restitution as an increment of the sentence. When the State asked for a restitution order of $500, defense counsel objected, arguing restitution could not be based on prospective amounts not yet incurred by the victim. The trial judge ordered the circuit clerk to withhold $500 of defendant’s bond money so that it could be applied to counseling. Although the court indicated that if the counseling cost less than $500, the money would be refunded to defendant, no time frame was fixed for determining if a refund should be made.

In a criminal case, the sentencing order should be sufficiently certain so as to not require further action by the court or an agent of the court to ascertain its meaning. Here, the trial court affixed a definite upper limit on defendant’s restitution, but the order was not sufficiently certain so that it could be enforced without further judicial action. Compare People v. Nash (1989), 183 Ill. App. 3d 924, 931, 539 N.E.2d 822, 826.

We conclude that the statutory provision on restitution (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 1005 — 5—6(g)) permits an order of restitution for prospective counseling expenses in sex abuse cases. In order to provide for the finality of a sentence, however, such an order should incorporate provisions specifying the following: (1) a maximum dollar limit; (2) a time frame for counseling and proof of expenses incurred, e.g., within one year of sentencing, or the term of probation where probation is imposed; (3) that the court services department or probation office monitor and administer the payment of restitution; (4) in the event that a dispute develops, that either party may petition the court for resolution thereof; and (5) when bond money is being withheld for use for restitution, a date when any bond monies not so used will be remitted to defendant. On the facts of this case, this matter of restitution can easily be resolved by the trial court on remand, in accordance with the directions we have now provided.

V. STANDARD OF REVIEW IN SEX OFFENSE CASES

As we stated earlier in this opinion, we disagree with defendant’s argument that the testimony of the complainant, S.L.M., is neither clear and convincing nor substantially corroborated. The special concurrence would have us abandon these tests as we review the evidence in sex offense cases. While it may be time to declare these tests no longer valid, we do not believe that it should be done by this court.

Affirmed and remanded with directions.

LUND, J., concurs.

JUSTICE STEIGMANN,

specially concurring:

While I fully agree with the disposition of this case, I write separately to state my views that the standard of review utilized by the court is antiquated, inconsistent with the current thinking of our supreme court, and should be abandoned.

A. REQUIREMENT THAT TESTIMONY OF VICTIM OF SEX OFFENSE BE EITHER SUBSTANTIALLY CORROBORATED OR CLEAR AND CONVINCING SHOULD BE REPUDIATED

In arguing that the evidence was not sufficient to prove him guilty beyond a reasonable doubt, defendant argues that the the complaining witness’ testimony in a sex offense case must be either substantially corroborated or clear and convincing and that S.L.M.’s testimony was neither. In support of this argument, defendant cites numerous cases, the primary ones being People v. Secret (1978), 72 Ill. 2d 371, 381 N.E.2d 285, and People v. Server (1986), 148 Ill. App. 3d 888, 499 N.E.2d 1019, cert. denied (1987), 484 U.S. 842, 98 L. Ed. 2d 88, 108 S. Ct. 131. The authority defendant cites is accurate, but I believe it to be no longer valid.

In People v. Bryant (1986), 113 Ill. 2d 497, 512, 499 N.E.2d 413, 419, and more recently in People v. Eyler (1989), 133 Ill. 2d 173, the Illinois Supreme Court had occasion to consider arguments that “proof beyond a reasonable doubt” was not sufficiently descriptive of the State’s burden of proof. In Bryant, the supreme court held that the second paragraph of Illinois Pattern Jury Instructions, Criminal, No. 3.02 (2d ed. 1981) should no longer be used. That paragraph-stating that the evidence in an entirely circumstantial evidence case must be sufficient to “exclude every reasonable theory of innocence” — was deemed by the court to be both “obscure and misleading.” Bryant, 113 Ill. 2d at 512, 499 N.E.2d at 420.

In Eyler, defendant contended that the State’s evidence, being entirely circumstantial, was insufficient on appeal to sustain his convictions because it did not exclude every reasonable hypothesis of innocence. The supreme court rejected this argument and held implicitly that henceforth there is to be but one standard of review regarding the sufficiency of the State’s evidence:

“The principles governing our review of defendant’s challenge to the sufficiency of the evidence are well established and were recently set forth in People v. Phillips (1989), 127 Ill. 2d 499, 509-10. It is, of course, the jury’s function to determine the accused’s guilt or innocence and this court will not reverse a conviction unless the evidence is so improbable as to justify a reasonable doubt of defendant’s guilt. It is not this court’s function to retry the defendant. The United States Supreme Court has stated that ‘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.’ (Emphasis in original.) (Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; see also People v. Collins (1985), 106 Ill. 2d 237, 261.) Moreover, it is for the jury to weigh the credibility of witnesses and to resolve conflicts or inconsistencies in their testimony. (Phillips, 127 Ill. 2d at 514.) Applying these principles to the case at bar, we readily conclude that defendant’s convictions are not subject to reversal.” Eyler, 133 Ill. 2d at 191-92.

These decisions are fully applicable to the issue before this court, which may be summarized as follows: in a case in which a sex offense is charged, is there some requirement imposed upon the State, in addition to proving the defendant guilty beyond a reasonable doubt, to demonstrate either that the evidence is substantially corroborated or that the victim’s testimony is clear and convincing? Based upon Bryant and Eyler, I believe there is not.

Before concluding that the above standards are no longer valid, I carefully considered their origins. I found that exercise to be somewhat akin to turning over a rock and looking underneath.

Lord Hale is apparently the earliest source of the aphorism that rape “is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho ever so innocent.” (I M. Hale, Pleas of the Crown 635 (1778).) This eighteenth-century insight was adopted by an early treatise on evidence (3 S. Greenleaf, Evidence §212 (4th ed. 1857)) and by two decisions of the Illinois Supreme Court, Shirwin v. People (1873), 69 Ill. 55, 58-59, and People v. Freeman (1910), 244 Ill. 590, 594, 91 N.E. 708, 709.

The rule that ultimately evolved from these decisions — that the evidence in a sex offense case must be substantially corroborated or the testimony of the victim must be clear and convincing — is entirely arbitrary and a reflection of the archaic and sexist views held by nineteenth-century legal practitioners. The attitudes of two State supreme courts in the mid- to late-1800's toward women (who, especially in those times, were almost exclusively the victims of sex offenses) are illustrated by the following decisions.

In 1862, the Supreme Court of North Carolina heard an appeal from a complaint for a divorce brought by a woman who claimed her husband had horse-whipped her. (Joyner v. Joyner (1862), 59 N.C. 322.) In reversing the trial court’s granting of her request for a divorce, the supreme court stated the following:

“The wife must be subject to the husband. Every man must govern his household, and if by reason of an unruly temper, or an unbridled tongue, the wife persistently treats her husband with disrespect, and he submits to it, he not only loses all sense of self-respect, but loses the respect of the other members of his family ***. Such have been the incidents of the marriage relation from the beginning of the human race. Unto the woman it is said, ‘Thy desire shall be to thy husband, and he shall rule over thee,’ Genesis, chap. 3, v. 16. It follows that the law gives the husband power to use such a degree of force as is necessary to make the wife behave herself and know her place.” Joyner, 59 N.C. at 325.

In 1875, the Wisconsin Supreme Court denied the petition of the first woman who sought to be admitted to the bar of that court. (In re Motion of Goodell (1875), 39 Wisc. 232.) In its ruling, the court offered the following nineteenth-century insights:

“This is the first application for admission of a female to the bar of this court. And it is just matter for congratulation that it is made in favor of a lady whose character raises no personal objection: something perhaps not always to be looked for in women who forsake the ways of their sex for the ways of ours.
* * *
*** The law of nature destines and qualifies the female sex for the bearing and nurture of the children of our race and for the custody of the homes of the world and their maintenance in love and honor. And all life-long callings of women, inconsistent with these radical and sacred duties of their sex, as is the profession of the law, are departures from the order of nature; and when voluntary, treason against it. *** There are many employments in life not unfit for female character. The profession of the law is surely not one of these. The peculiar qualities of womanhood, its gentle graces, its quick sensibility, its tender susceptibility, its purity, its delicacy, its emotional impulses, its subordination of hard reason to sympathetic feeling, are surely not qualifications for forensic strife.” Goodell, 39 Wisc, at 240-45.

The rule that I would have this court reject is, in its own way, as insulting to women as are the above quotations. Women still constitute the overwhelming majority of victims of sex offenses, and the testimony of no other category of crime victim is held automatically suspect, requiring “substantial corroboration” or that it be “clear and convincing” in order to sustain a conviction. The time has come to rid the law of this anachronism.

Not even the testimony of accomplices has been scrutinized in this fashion. In People v. Pace (1987), 163 Ill. App. 3d 1012, 1014-15, 517 N.E.2d 299, 301-02, this court stated the following:

“The testimony of an accomplice, either corroborated or uncorroborated, can be sufficient to sustain a conviction if the jury is convinced beyond a reasonable doubt. [Citations.] Whether such testimony forms a sufficient basis for conviction goes to the weight of the evidence. As such, it is properly a function within the province of the jury. [Citations.]
Although accomplice testimony is competent, it is often fraught with serious problems. The accomplice may have been promised leniency or harbor ill will towards the accused. Consequently, it only should be accepted with the utmost caution and subjected to the highest scrutiny. [Citations.]
Defendants insist that where an accomplice’s testimony is uncorroborated, it must carry an ‘absolute conviction of truth.’ [Citation.] Although the ‘absolute conviction of truth’ language has been used in assessing accomplice testimony, the prevailing test is whether the uncorroborated accomplice testimony establishes the guilt of defendant beyond a reasonable doubt. [Citation.] The credibility and weight afforded such testimony is an issue for the jury.”

I am are aware that juries receive a special instruction regarding accomplice testimony. (See Illinois Pattern Jury Instructions, Criminal, No. 3.17 (2d ed. 1981).) My point is that once a jury has chosen (as it may) to return a guilty verdict based upon the uncorroborated testimony of an accomplice, this court is under no special obligation to determine whether the State’s evidence was “substantially corroborated” or whether the accomplice’s testimony was “clear and convincing.” Those standards of review are applicable only with regard to any woman who happens to be a rape victim, not to some dope dealer who “flips” to turn State’s evidence against his fellow dope dealer.

I note parenthetically that an additional problem with the requirement that the testimony of the victim of a sex offense be “clear and convincing” is that the phrase “clear and convincing” is itself a statement of the burden of proof the State must meet in order to prevail in certain types of cases, such as the termination of parental rights in cases involving child abuse or neglect. (See Ill. Rev. Stat. 1987, ch. 37, par. 802 — 29.) Consideration by a court of review of whether the victim’s testimony is “clear and convincing” when the State already has the burden of proving the defendant’s guilt beyond a reasonable doubt is likely to add only confusion to the appellate process.


source: Caselaw Access Project

author: JUSTICE SPITZ

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DWIGHT W. DAVIS, Defendant-Appellant.
    Fourth District
    No. 4—89—0411
    Opinion filed February 8, 1990.

      Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SPITZ

delivered the opinion of the court:

After jury trial, defendant was convicted of two aggravated battery charges and sentenced to concurrent extended terms of 5V2 and 71k years’ imprisonment. Defendant appeals his convictions.

At trial, Officer Michael Fazio testified that on November 4, 1988, he and Officer Randall Wikoff responded to a domestic disturbance call at 1111 South Low Street, in Bloomington. Both officers were in uniform. As the officers approached the house, a woman, Kim Smith, came out and asked the officers to keep defendant away from her. Defendant informed the police that it was none of their business and headed toward the house. When defendant attempted to enter the house, he struck Fazio in the face with the screen door. Fazio then grabbed defendant by the arm, but defendant hit Fazio with his elbow. The officers wrestled defendant down to the front porch and attempted to handcuff him. Fazio received several cuts on his hand from trying to place the handcuffs on defendant. Fazio also received an abrasion on his knee when defendant kicked him while wearing heavy work boots. The officers rolled defendant over in an attempt to get the handcuffs on him and, in the process, Fazio kicked defendant in the groin. Fazio stated he did this to defend himself against an attack by defendant.

The defense attempted to cross-examine Fazio about one prior and one pending civil rights suit against him alleging the use of excessive force. The State objected, and defendant made an offer of proof. The pending suit alleged that Fazio used excessive force in making an arrest. However, Fazio stated that he received no reprimand or suspension from the police force because of the claim. Fazio also stated that the police department investigated the matter and was defending him in the suit. The prior suit filed against Fazio alleged that he violated an individual’s civil rights during an arrest by pulling his hair. This suit was settled for a nuisance fee. The court sustained the State’s objection because' there had been no disciplinary action taken against Fazio in the prior suit, and the other matter was a pending lawsuit not related to the present case.

Officer Wikoff also testified at trial and corroborated Fazio’s testimony. Wikoff stated that defendant kicked both officers several times and continued swinging and flailing his arms about. After the officers handcuffed defendant, he continued to kick and thrash on the ground and verbally abuse the officers.

Officer William Rusk testified that on November 5, 1988, he and another officer took defendant to a hospital after defendant complained of a pain in his wrist. A cut on defendant’s left wrist was cleaned, and he received a splint on his right hand.

Defendant testified in his own behalf. Defendant claims he remained calm when talking to the officers and that he unintentionally hit Fazio with the door as he was going inside to talk to Smith. Defendant denies struggling with the officers before Fazio kicked him in the groin and claims that he only struggled after the kick to defend himself.

Prior to defendant’s testimony, defense counsel made a motion in limine to preclude the State from using defendant’s two prior aggravated battery convictions in 1980 and 1983 for impeachment purposes. The court denied the motion and allowed the convictions to be used for impeachment purposes.

During the instructions conference, defense counsel tendered instructions on the offense of resisting or obstructing a peace officer. The trial court denied these instructions because the resisting offense was not an included offense of either of the two aggravated battery offenses as charged.

On appeal, defendant argues: (1) the trial court erred in denying him the right to cross-examine Officer Fazio about prior and pending lawsuits against him; (2) the trial court erred in denying defendant’s motion in limine; and (3) the trial court erred in refusing defendant’s tendered instructions concerning the offense of resisting or obstructing a peace officer. We affirm.

Defendant first argues that the trial court erred in denying him the right to cross-examine Officer Fazio about prior lawsuits filed against him for using excessive force during arrests. Specifically, defendant asserts that the trial court’s ruling deprived him of his constitutional right to confront a prosecution witness by cross-examination directed at impeaching a witness with his possible bias or motive to testify falsely. People v. Gonzalez (1984), 104 Ill. 2d 332, 472 N.E.2d 417; U.S. Const., amends. VI, XIV; Ill. Const., 1970, art. I, §11.

The partiality or bias of a witness is always relevant in discrediting a witness and affecting the weight of his testimony. (Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105.) The trial court should give the widest latitude to the defense on cross-examination when trying to establish a witness’ bias or motive. (People v. Wilkerson (1981), 87 Ill. 2d 151, 429 N.E.2d 526.) However, a trial court may exercise its discretion to preclude repetitive or unduly harassing interrogation and confine the extent of cross-examination to a proper subject matter. (People v. Lenara (1979), 79 Ill. App. 3d 1046, 398 N.E.2d 1054.) To be admissible, evidence showing bias must be direct and positive, not remote or uncertain. (See People v. Hanks (1974), 17 Ill. App. 3d 633, 307 N.E.2d 638.) A trial court’s decision will be disturbed on review only upon a finding of clear abuse of discretion resulting in manifest prejudice. Lenard, 79 Ill. App. 3d 1046, 398 N.E.2d 1054.

Defendant bases his argument on two cases: People v. Phillips (1981), 95 Ill. App. 3d 1013, 420 N.E.2d 837; and People v. Robinson (1977), 56 Ill. App. 3d 832, 371 N.E.2d 1170. The court in Phillips reversed a trial court’s decision to deny defendant’s request to impeach a witness (an off-duty police officer shot by defendant) with prior suspensions. The defendant in Phillips claimed he shot the officer after the officer brandished a pistol at defendant’s brother without provocation. The officer had been suspended from the police force 15 times, including two instances for improperly displaying his weapon and then filing a false report. The Phillips court reversed because the officer could have been motivated to testify falsely to avoid a further suspension, termination, or to insure the continuance of his medical coverage and compensation. Moreover, the witness’ testimony in Phillips was crucial to the State’s case.

In Robinson, the appellate court reversed a trial court’s ruling denying defendant the opportunity to introduce evidence showing that the witness had used unwarranted force against others in the course of his duty as a policeman. The Robinson court held that since the witness was suspended from the police force at the time of defendant’s trial for commiting an act of violence and was scheduled for reinstatement only a few days later, the trial court should have allowed defendant to explore the possibility that the witness’ testimony may have been influenced by a desire to return to active duty without further trouble and to avoid continued suspension or other disciplinary measures.

The present case is easily distinguishable from Phillips and Robinson. The evidence of bias in the instant case consisted of a prior suit against Fazio alleging racial bias and physical abuse and a pending suit against Fazio for use of excessive force during an arrest. The prior suit was settled for a nuisance fee. Fazio was never suspended or reprimanded. In both Phillips and Robinson, the officers had been suspended. Furthermore, the second suit here was a pending civil suit which the police department was defending for Fazio. While the refusal to permit a defendant to impeach a State’s witness by evidence of pending but unproved criminal charges to show bias has been held to be reversible error (Wilkerson, 87 Ill. 2d 151, 429 N.E.2d 526), we find no case where mere evidence of a civil suit against a law-enforcement officer charging dereliction of duty unrelated to the case in issue has been held to be proper impeachment. See People v. Cameron (1989), 189 Ill. App. 3d 998, 546 N.E.2d 259.

Finally, Officer Fazio’s testimony was not, as defendant asserts, key to the case. Officer Wikoff was also at the scene and corroborated Fazio’s testimony. We find any alleged incentive on Fazio’s part to give favorable testimony because of a prior suit settled for a nuisance fee and because of pending civil litigation to be remote and uncertain. The trial court did not abuse its discretion.

Defendant next argues that the trial court erred in denying his motion in limine seeking to prevent the State from introducing evidence of his two prior aggravated battery convictions. Defendant asserts that the prejudice in introducing the convictions clearly outweighed any probative value the evidence may have had. This is especially true, defendant maintains, where, as here, the present charge is similar to the prior convictions.

The admission of a prior conviction for the purpose of affecting a witness’ credibility rests within the sound discretion of the trial court. (People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695.) A trial judge should exclude a prior conviction if he determines that its probative value on the issue of credibility is substantially outweighed by the danger of unfair prejudice. (Montgomery, 47 Ill. 2d 510, 268 N.E.2d 695.) A prior conviction for a crime which is similar to the crime charged does not mean it cannot be introduced. Instead, similarity is a factor which the court must consider when balancing the probative value against prejudicial impact. People v. Hall (1983), 117 Ill. App. 3d 788, 453 N.E.2d 1327.

Defendant cites two cases where an appellate court reversed a trial court’s decision to introduce evidence of crimes similar to the crime charged. (People v. Pruitt (1988), 165 Ill. App. 3d 947, 520 N.E.2d 867; People v. Siebert (1979), 72 Ill. App. 3d 895, 390 N.E.2d 1322.) These cases do nothing more than show two courts in two factually different situations reversing trial courts that abused their discretion in allowing evidence of crimes similar to the crime charged. There are also as many cases where this court has upheld a trial court’s decision to admit such evidence. See People v. Dailey (1973), 15 Ill. App. 3d 214, 304 N.E.2d 156; People v. Overturf (1973), 12 Ill. App. 3d 441, 299 N.E.2d 34.

Defendant further argues that this court has held an aggravated battery conviction “has no bearing whatsoever on honesty and veracity.” (People v. Wright (1977), 51 Ill. App. 3d 461, 463, 366 N.E.2d 1058, 1060.) Defendant contends that in Wright we held that evidence of a prior conviction of aggravated battery allowed in a prosecution for rape and deviate sexual assault was prejudicial because it showed the defendant’s propensity for crimes of violence. In Wright, the author of the opinion reversed on the grounds that aggravated battery had no probative value to impeach. A special concurrence, however, disagreed with the author’s reasoning. (Wright, 51 Ill. App. 3d at 465-66, 366 N.E.2d at 1062-63 (Reardon, J., specially concurring).) The concurrence thought that any felony conviction could be considered relevant to the honesty and veracity of the defendant and could thus be considered in performing the balancing test. The dissenting justice in Wright agreed with the concurrence’s view of the law. (Wright, 51 Ill. App. 3d at 466-67, 366 N.E.2d at 1063 (Kunce, J., dissenting). See People v. Kirkpatrick (1979), 70 Ill. App. 3d 166, 387 N.E.2d 1284.) This court has accepted the views of the concurrence and dissent in Wright. (People v. Guthrie (1978), 60 Ill. App. 3d 293, 376 N.E.2d 425.) In the instant case, the trial judge performed the balancing test and did not abuse his discretion in admitting the evidence.

Defendant’s final contention is that the trial court erred in denying his instructions on the lesser offense of resisting or obstructing a peace officer. (Ill. Rev. Stat. 1987, ch. 38, par. 31 — 1.) Defendant was charged with the following:

“Count III *** on or about the 4th of November, 1988 *** committed the offense of aggravated battery in that he knowingly, without legal justification caused bodily harm, cuts to both hands, to Bloomington police officer Michael Fazio, by kicking and struggling with Officer Fazio, Dwight W. Davis knowing that Michael Fazio was a peace officer engaged in the execution of his offical duties, the arrest of Dwight W. Davis.
Count IV *** on or about the 4th day of November, 1988, *** committed the offenseof aggravated battery in that he knowingly without legal justification made physical contact of an insulting or provoking nature with Bloomington police officer Randall Wikoff, by kicking Randall Wikoff with his feet, Dwight W. Davis knowing that Randall Wikoff was a peace officer engaged in the execution of his official duties, the arrestof Dwight W. Davis.”

A defendant may be entitled to have the jury instructed on a less serious offense that is included in the one with which he is charged. (People v. Bryant (1986), 113 Ill. 2d 497, 499 N.E.2d 413.) However, the included offense is properly submitted only where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser crime. (People v. Wys (1982), 103 Ill. App. 3d 273, 431 N.E.2d 38.) Even assuming that the offense of resisting or obstructing a peace officer was an included offense here, the proposed included offense instruction was properly refused because the greater offense did not require the jury to find a disputed factual element not required for conviction upon the lesser.

Defendant relies on the Wys opinion in claiming that there was a disputed factual element the jury had to find for the greater charge but not the lesser charge. The facts in Wys were very similar to the ones in the present case. The defendant in Wys, however, did not testify, and the defense did not present evidence refuting the arresting officers’ testimony that defendant had inflicted pain and spit on an officer. Because no evidence was presented to refute the officers’ testimony, the court in Wys found that the jury was not required to find a factual dispute on the greater charge. Thus, the trial court properly refused the instructions on the lesser charge.

Defendant claims that in the present case, unlike in Wys, there was a factual dispute concerning the greater charge here. Specifically defendant claims the bodily harm to Officer Fazio and the contact with Officer Wikoff are in dispute. This is based on defendant’s testimony that he did not initiate the struggle, and that anything he may have done was in self-defense after he was kicked in the groin. However, the only elements required for conviction on the greater offenses of aggravated battery which were not required for conviction of the lesser offense of resisting a peace officer, were the elements of harm to Officer Fazio and physical contact of an insulting or provoking nature with Officer Wikoff. (Wys, 103 Ill. App. 3d at 277, 431 N.E.2d at 41.) It is undisputed that the struggle with the two officers resulted in defendant kicking Officer Fazio several times as well as Fazio receiving cuts to his hands from trying to place the handcuffs on defendant. It is also undisputed that defendant kicked Officer Wickoff numerous times during the struggle, resulting in contact of an insulting or provoking nature. Thus, there is no element of the offense of aggravated battery which is in dispute which was not required for conviction of the lesser offense of resisting or obstructing a peace officer. The trial court is affirmed.

Affirmed.

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


author: JUSTICE STEIGMANN

text:
    RAYMOND E. RUDD, Plaintiff-Appellant, v. DANVILLE METAL STAMPING COMPANY, INC., Defendant-Appellee.
    Fourth District
    No. 4-89-0297
    Opinion filed February 8,1990.
    Manion, Janov & Devens, Ltd., of Danville (Rick E. Janov, of counsel), for appellant.
    Joan E. Gale and Kathleen M. Moran, both of Seyfarth, Shaw, Fair-weather & Geraldson, of Chicago, for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Plaintiff, Raymond E. Rudd (Rudd), brought this action against defendant, Danville Metal Stamping Co., Inc. (DMS), claiming breach of an alleged employment contract between him and DMS. Rudd claims that language appearing in DMS’s employee handbook created an enforceable contract binding DMS to certain procedures before it could terminate Rudd’s employment. The trial court found that DMS’s employee handbook did not create a contract and dismissed Rudd’s complaint with prejudice under section 2 — 615 of the Illinois Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615). Rudd appeals.

We affirm.

In January 1986, DMS hired Rudd and provided him with a copy of DMS’s employee handbook. Rudd was required to read and acknowledge the receipt of the handbook by signing a verification form which states:

“I will read the foregoing Employee’s Handbook of Plant Rules and Regulations, and I expect to be guided by them.”

In October 1986, DMS terminated Rudd’s employment. At the time of Rudd’s termination, the employee handbook was in effect.

The language at issue is contained in a section of the employee handbook that provides, in pertinent part, that the purpose of the rules and regulations is to “govern our activities on a daily basis *** [and] to define and protect the rights of all and insure cooperation.” The section further states:

“The following rules have been established for our mutual cooperation. In any organization, however, there may be a few individuals who do not wish to work within the framework of rules and regulations. It then becomes a matter of rules being established for the few rather than the majority. In any case, violation of the rules and regulations may result in disciplinary action for the offender. This disciplinary action will be taken up to and including discharge depending on the seriousness of the offense.”

In this same section, 44 rules and regulations are listed. Immediately following the list is the following statement:

“Violations will be grounds for progressive disciplinary action, which may include a correction interview, written warning, probation, suspension without pay, or termination.” (Emphasis added.)

The next paragraph states:

“Certain serious offenses may be considered grounds for immediate termination upon the first offense. Those offenses include, but are not necessarily limited to ***.” (Emphasis added.)

In his complaint, Rudd alleges breach of contract based upon the following: (1) he was employed by DMS from January 1986 through October 1986; (2) upon and as a condition of being employed, he received an employee handbook; (3) he was required to sign and acknowledge receipt of the handbook as a condition of employment; (4) the handbook constituted a contract between plaintiff and defendant; (5) the handbook provided for progressive disciplinary procedures; and (6) DMS breached the contract by the manner in which it terminated Rudd’s employment. The pleadings are not clear as to which benefits of the progressive disciplinary scheme plaintiff claims to be entitled.

In November 1988, DMS filed a motion for involuntary dismissal pursuant to section 2 — 615 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615) and asserted that, as a matter of law, the employee handbook did not create a contract. After a hearing on DMS’s motion, the trial court entered an order dismissing Rudd’s complaint and denying his motion to amend that complaint. The court found that the handbook did not contain sufficient language to bring it within the holding of Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 505 N.E.2d 314, and specifically held that a DMS employee could not reasonably believe that the language contained in the handbook created a contractual offer.

In Duldulao, the Illinois Supreme Court held that an employee handbook or other policy statement creates enforceable contractual rights if the traditional requirements for contractual formation are present:

“First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the employee must accept the offer by commencing or continuing to work after learning of the policy statement. When cthese conditions are present, then the employee’s continued work constitutes consideration for the promises contained in the statement, and under traditional principles a valid contract is formed.” (Duldulao, 115 Ill. 2d at 490, 505 N.E.2d at 318.)

All three conditions must be met to create enforceable contract rights. Koch v. Illinois Power Co. (1988), 175 Ill. App. 3d 248, 529 N.E.2d 281.

The issue in this case concerns the first factor specified in Duldulao, i.e., whether the language of the employee handbook contains a promise clear enough that an employee would reasonably believe that an offer has been made. Rudd argues that the language of the employee handbook led him to reasonably believe that he would not be terminated without the benefit of the progressive disciplinary provisions set forth in DMS’s handbook. In his argument, Rudd emphasizes that according to the handbook, the rules and regulations govern and define the rights of all and set forth specific grounds for an employee’s discipline or dismissal. He further argues that under Duldulao, the language, “[violations will be grounds for progressive disciplinary action” (emphasis added), is mandatory and thus created enforceable rights. We disagree.

In Duldulao, the employee handbook contained specific disciplinary procedures, stating in part that “permanent employees ‘are never dismissed without prior written admonitions and/or an investigation that has been properly documented’ (emphasis added)” and that “ ‘three warning notices within a twelve-month period are required before an employee is dismissed.’ ” (Duldulao, 115 Ill. 2d at 491, 505 N.E.2d at 318.) In the present case, DMS’s handbook contains no description of specific disciplinary procedures and does not purport to promise that specific disciplinary procedures will even be used. Articulated procedures are a fundamental and necessary part of an employment contract. Tolbert v. St. Francis Extended Care Center (1989), 189 Ill. App. 3d 503, 507, 545 N.E.2d 384, 386.

For the reasons stated, the order of the circuit court is affirmed.

Affirmed.

McCULLOUGH and SPITZ, JJ., concur.


author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GORDON L. McKINNEY, Defendant-Appellant.
    Fourth District
    No. 4—88—0685
    Opinion filed February 1, 1990.

      Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    John Robinson, State’s Attorney, of Sullivan (Kenneth R. Boyle, Robert J. Biderman, and Gwendolyn W. Klingler, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Gordon L. McKinney (defendant) was convicted in the circuit court of Moultrie County of arson (Ill. Rev. Stat. 1987, ch. 38, par. 20 — 1(a)) and subsequently sentenced to a term of imprisonment of five years. Defendant appeals, contending: (1) the trial court erred in allowing the State to introduce statements that defendant made two months before the fire; (2) the State failed to prove defendant guilty beyond a reasonable doubt; (3) the State improperly elicited immaterial evidence of defendant’s prearrest silence; and (4) defendant was denied effective assistance at counsel.

Facts

Gordon L. McKinney (defendant) and Betty Coslow were living together in Coslow’s apartment, which was located in James Austin’s apartment building in Lovington, Illinois. On March 4, 1988, defendant and Coslow, with others, were frequenting bars in Decatur, Illinois, and in the course of the evening Coslow drove off with others, leaving the defendant without a vehicle. Defendant arranged a ride back to Lovington and in the presence of other residents messed up the Coslow apartment, even to the extent of throwing his own television set over a second-story bannister. Coslow had moved into the apartment three days before and items were still stored in boxes. Other building occupants were in and out while the trashing took place. They then left the Coslow apartment, leaving defendant behind, and, approximately 15 minutes later, the Coslow apartment was on fire. The whole building was basically destroyed by the fire.

Building tenants, who were aware of the damage done by the defendant in the Coslow apartment, confronted defendant outside the building during the fire. There was evidence that defendant said he was sorry and said, “Why don’t you turn me in? Go ahead and turn me in.”

Fire inspectors determined the fire started near the end of the couch in the Coslow apartment. There was evidence indicating that a misplaced cigarette or carelessly disposed of match would not have resulted in such an intense fire within the short time that the defendant was alone in the apartment. The fire investigators also testified that it was their opinion the fire was intentionally started.

No explanation of the cause of the fire was given by the defendant from the time of the fire until he testified during the criminal trial. At trial he testified he laid down on the couch, lit a cigarette and discarded the match. He also stated that by the time he realized that there was a fire at the end of the couch the flames were seven feet high.

Analysis

I

Prior to trial defendant was denied a motion in limine seeking to preclude the State from introducing evidence of a statement the defendant made on January 11, 1988, when defendant was interviewed by officers on an unrelated matter. During the cross-examination of defendant he was asked if he recalled telling Deputy Harold Morgan that if he told Morgan something he should not, he would lie about it in court. The defendant testified he did not recall. On rebuttal, Deputy Morgan and Police Chief Newberry testified as to a conversation with defendant, in a tavern, when defendant was intoxicated, and the defendant — after being denied an “off the record” conversation — stated: “That’s okay. If I say anything I shouldn’t, I’ll lie about it in court anyway.” The defendant argues this was error requiring reversal.

During the instruction conference and before final arguments, the trial judge sua sponte reversed his position on the admission of this evidence and, on returning before the jury, ordered the testimony stricken. The judge also polled the jury to determine if every jury member would be able to disregard the evidence. He received affirmative answers.

We recognize the only possible relevance of the testimony of this conversation in a bar related to the credibility of the defendant. Defendant’s veracity was being attacked. Defendant cites People v. Lampkin (1983), 98 Ill. 2d 418, 457 N.E.2d 50, for support of his argument. Lampkin, a black, was convicted of murder of a white State police officer. Evidence was introduced that six years before the alleged murder he had threatened to “get” other white officers “later.” The admission of this earlier threat brought reversal and a new trial. In Lampkin, however, the erroneous evidence was introduced, not to attack veracity, but as evidence of intent to commit the murder. We do not find Lampkin applicable to the present case.

The general rule appears to limit challenges to veracity, or credibility, to an opinion as to the witness’ reputation for truth and veracity in the community. (M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §608.3, at 346 (4th ed. 1984); E. Cleary, McCormick on Evidence §44, at 90 (2d ed. 1972).) There have been exceptions where, by cross-examination, the prosecution establishes defendant had testified on direct about matters which had in fact involved false statements under oath. (People v. Miller (1958), 13 Ill. 2d 84, 108, 148 N.E.2d 455, 468.) The Miller opinion includes the following statement:

“Where an accused takes the stand on his own behalf, he tenders his character and reputation as a direct issue, thus subjecting his credibility to the same tests as applied to any other witness, (See: People v. Johnson, 333 Ill. 469; People v. Hicks, 362 Ill. 238; United, States v. Skidmore, 123 F.2d 604,) and the court has wide discretion in determining the propriety of cross-examination tending to reflect on his character. (People v. Halpin, 276 Ill. 363.)” (Miller, 13 Ill. 2d at 108, 148 N.E.2d at 468.)

In Miller, however, the cross-examination did not exceed the limits of the direct examination. In the present case, there was no testimony on direct by the defendant relating to the January 11,1988, meeting.

However, we need not decide the propriety of the reference to January 11. The trial court struck the testimony and received assurances from the jury members that they would not consider the testimony. The general rule is that the striking of evidence erroneously admitted during a trial cures the error except in extreme cases, where it is manifest the prejudicial effect of the evidence remained with the jury despite its exclusion and influenced its verdict. (McKenna v. Chicago City Ry. Co. (1921), 296 Ill. 314, 326, 129 N.E. 814, 819; People v. Endress (1972), 5 Ill. App. 3d 821, 824-25, 284 N.E.2d 725, 728.) The question whether there should be a mistrial should go to the sound discretion of the trial court in the first instance, such court being best suited to judge the effect on the jury. In absence of a showing that the defendant has been prejudiced, the trial court’s ruling should be upheld. (People v. Dolgin (1953), 415 Ill. 434, 446, 114 N.E.2d 389, 395.) We find that the trial court’s decision, considering the evidence in the present case, should be upheld.

II

As to the proof-beyond-a-reasonable-doubt issue, we recognize the long-established rule that guilt can be proved entirely by circumstantial evidence. (People v. Franklin (1985), 130 Ill. App. 3d 514, 519, 474 N.E.2d 776, 780; People v. Rhodes (1981), 85 Ill. 2d 241, 249, 422 N.E.2d 605, 608.) 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. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277, cert. denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267.) We need not elaborate further on the evidence except to emphasize defendant’s state of mind and the expert’s opinion that the fire intensity was too great, considering the time period, from ignition to discovery, to have been started with a carelessly discarded match or cigarette. We agree with the State that the present case is similar to the facts in People v. Alexander (1966), 77 Ill. App. 2d 151, 222 N.E.2d 172. The evidence was sufficient to sustain a finding of the defendant’s guilt beyond a reasonable doubt.

Ill

Defendant, during his testimony at trial, disclosed for the first time his defense of accidentally starting the fire by lighting a cigarette and carelessly disposing of the match. On direct examination, defendant did not mention talking to firemen or any law enforcement officer during the time the fire was fought or any time thereafter prior to the trial. On cross-examination, he was questioned as to why he did not report his conduct at the time of the fire. Defendant argues this cross-examination was erroneous because the subject was not covered on direct, the questions were not relevant, and the questions were in violation of due process.

As to the due process issue, we note that the United States Supreme Court has held that government’s use of the accused’s prearrest silence regarding the crime for which he was arrested and prosecuted, for the purpose of impeaching his credibility on cross-examination and after he has taken the stand in his own defense, did not violate the defendant’s fifth amendment rights and did not deny him the fundamental fairness guaranteed by the fourteenth amendment. (Jenkins v. Anderson (1980), 447 U.S. 231, 65 L. Ed. 2d 86, 100 S. Ct. 2124; People v. Graves (1986), 142 Ill. App. 3d 885, 889, 492 N.E.2d 517, 521.) This is in contrast to post-arrest silence. See Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240; People v. Rush (1978), 65 Ill. App. 3d 596, 606, 382 N.E.2d 630, 637.

Defendant acknowledges the Jenkins decision and states that regardless of the Jenkins holding, the rules of evidence still apply and evidence which is irrelevant should not be admitted. The supreme court stated the rule applicable to impeachment by proof of failure to state a fact on a prior occasion in People v. Henry (1970), 47 Ill. 2d 312, 320-21, 265 N.E.2d 876, 882, as follows:

“It would appear that no prior inconsistent statement in the usual sense was involved, but inconsistency in the literal sense is not always required for impeachment. In Carroll v. Krause, 295 Ill. App. 552, the witness testified that an auto in which the plaintiff was riding had but one headlight. At an earlier inquest the witness omitted mention of the fact of the single headlight. It was held that the prior statement was admissible for impeachment purposes, though the witness had not been asked specifically about the auto’s headlights at the inquest. The court said at page 562: ‘The rule is that the omission of a witness to state a particular fact under circumstances rendering it incumbent upon him to, or likely that he would, state such fact, if true, may be shown to discredit his testimony as to such fact. 70 C.J. 1061; Greenleaf on Evidence (16th Ed.) Vol. I, sec. 462a.’ Where, as here, it is claimed there has been a material omission of matters contained in a prior statement from later testimony it is logical that the fact of such omission should be admissible. Wigmore says: ‘A failure to assert a fact, when it would have been natural to assert it, amounts in effect to an assertion of the nonexistence of the fact.’ (Wigmore on Evidence, (3rd ed. 1940), sec. 1042); see also, McCormick on Evidence (1st ed. 1954), sec. 34; Erickson v. Erickson and Co., 212 Minn. 119, 2 N.W.2d 824.) It would have been natural for the witness to have told in her testimony of the claimed coercion.” (Emphasis in original.)

This statement was repeated in People v. Owens (1976), 65 Ill. 2d 83, 91-92, 357 N.E.2d 465, 470.

We must determine whether the circumstances rendered it incumbent upon the defendant to notify firemen, during the fire, that he did or may have accidentally or negligently caused the fire. No statement was given to officers or firemen by the defendant at the time of the fire. If, in fact, the fire was accidental, there could be doubt in the defendant’s mind as to cause. To adopt a rule that it is likely that everyone who acts accidentally or negligently will immediately acknowledge that action or negligence fails to meet the test of reason. This is far different than being expected to immediately relate an act establishing self-defense or a defense witness stating an alibi for a defendant during the first questioning by authorities. The trial court erred in allowing this type of cross-examination. The silence does not meet the relevancy test as set forth in Henry.

However, our evaluation of the evidence, coupled "with the examination of the error, as viewed in the context of the entire record of proceedings, convinces us that the error was harmless. People v. Tranowski (1960), 20 Ill. 2d 11,17, 169 N.E.2d 347, 350.

IV

Defendant’s final contention is that he was denied the effective assistance of counsel when counsel, under the guise of impeaching witness Mary Wren, questioned her about prior statements she gave to police, thereby eliciting incriminating hearsay testimony. In order to evaluate the claim, it is necessary to examine the testimony of the State’s witnesses, Wren and Tim Doggett. They were the last two witnesses in the State’s case in chief. Doggett was a young man, a friend of the defendant, who was spending the night with Mary Wren, in Wren’s apartment located in the same building where Betty Coslow had her apartment. Wren and Coslow were sisters. Both Doggett and Wren described defendant’s angry return to the apartment building. They described the damage caused by the defendant to the Coslow apartment and Doggett's wrestling with defendant. There was a description of their leaving the Coslow apartment, and of Doggett returning 15 to 30 minutes later and seeing defendant standing looking at six-foot-high flames. Doggett then alerted Wren and others of the fire danger. Doggett did not testify as to seeing defendant start the fire or defendant saying he started the fire.

Wren testified as to witnessing defendant “tearing up” the Cos-low apartment. She testified she and Doggett returned to Wren’s apartment, with Doggett returning to the Coslow apartment “probably about fifteen, twenty minutes after that,” and coming running back to give the fire alert. She testified defendant came to her apartment, “probably within five minutes” and “he got down on his knees and said he was sorry about the fire.” She testified, “I told him he was insane for even setting it, knowing that I had a baby in the house,” and defendant “just kept saying he was sorry.” She further said she “hit him in the face a few times.”

After leaving the burning building, Wren related on direct examination she sat in a car with Doggett and Wren’s young son, during the fire, and defendant came to the car. In answer to a question as to what defendant said, she answered:

“He said somebody go snitch on me, one of you go snitch on me. I said, ‘No, we are not a snitch.’ I said, ‘You are the big man that set that fire, you go tell on yourself.’ And I hit him again. Then he shut the door and he left.”

On cross, defense counsel appears to have centered his examination on an attempt to attack the credibility of Wren. He first established Wren had given a statement to Officer Newberry on March 8, 1988, which did not include mention of defendant coming to her apartment, getting on his knees and saying he was sorry. Defense counsel then established the statement to Newberry included the following: “That there was a pile of things burning, Tim ran down to my apartment and grabbed my little boy.”

Next, defense counsel referred to a statement given by Wren to Terry Brown, also given on March 8, 1988, which statement included the following quote:

“After a long time Tim went down to check on Gordon, when Tim looked into the hole previously made Tim saw Gordon bring his hand back up from lighting a pile of stuff on fire. Tim told Mary the fire was already burning on the other side of the pile, and so on and so forth, that Gordon was lighting the fire.”

Defense counsel then referred to an April 6, 1988, statement by Wren, which included: “Tim saw Gordon standing over the fire and throwing more stuff on it, not that he lit the fire but that he threw more stuff on.” Wren acknowledged making the various statements.

The record indicates that the defense counsel’s reason for this entire line of questioning was to impeach Wren’s credibility by showing what might appear to be inconsistency in her various statements. In determining if this trial tactic establishes incompetency of counsel, our court must consider whether the damaging effect of Wren’s testimony on direct justified such drastic action. If the statements, which were obviously based upon what Doggett had said to Wren, thus being hearsay, failed to destroy Wren’s credibility, they undoubtedly did damage to defendant’s case.

However, defense counsel was in a difficult position, stuck between his own Scylla and Charybdis. Wren’s testimony on direct as to defendant’s actions and statements after the fire started was damning. Defendant’s actions in Wren’s apartment after the fire started and in the automobile during the fire definitely make admissible defendant’s failure to deny intentionally starting the fire during those two confrontations. The elements required by the Henry decision as to silence being unlikely were met.

The United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, formulated a two-part test for evaluating whether a claim of ineffective assistance of counsel rises to the level of a constitutional deprivation. Defendant must first demonstrate that counsel’s performance was deficient. (People v. Owens (1989), 129 Ill. 2d 303, 309, 544 N.E.2d 276, 278.) Defendant must also prove that his counsel’s deficient performance substantially prejudiced his defense. (Owens, 129 Ill. 2d at 309, 544 N.E.2d at 278.) To meet this second test, a defendant must show a reasonable probability that “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.

With hindsight, it might appear that defense counsel should have waived cross-examination of Wren or attacked in a different way. Regardless of what we might have done as counsel, considering the effect of Wren’s direct testimony, we would be remiss in finding the defendant’s claim of ineffective assistance rises to a level of constitutional deprivation. We find that counsel’s performance was not such as can be called deficient. Moreover, there was not a showing of reasonable probability that but for counsel’s alleged errors the result would have been different.

Affirmed.

SPITZ and STEIGMANN, JJ., concur.