author: MR. CHIEF JUSTICE GOLDENHERSH

text:
    (No. 50630.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. REUCSHELLE HARRIS, Appellant.

      Opinion filed January 26, 1979.

      Amette R. Hubbard, of Chicago (Donald Hubert, of counsel), for appellant.
    William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Lee T. Hettinger and Rimas F. Cernius, Assistant State’s Attorneys, of counsel), for the People.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

In a jury trial in the circuit court of Cook County, defendant, Reucshelle Harris, was convicted of the offense of armed robbery and sentenced to not less than 4 nor more than 12 years in the penitentiary. The appellate court affirmed (57 Ill. App. 3d 639), and we allowed defendant’s petition for leave to appeal.

The facts are fully stated in the opinion of the appellate court and will be reviewed here only to the extent necessary to discuss the issues. The charge of which defendant was convicted involved the armed robbery of Amos Guilcrest and Michael King on a street in Chicago.

Defendant contends first that because of certain ex parte remarks made by the circuit court shortly after the jury was selected, she was deprived of her right to be tried by a fair and impartial jury. After the selection of the jury and prior to the making of opening statements, defendant’s counsel requested that the court excuse one of the jurors. Counsel advised the court that during the noon hour, in the courthouse lobby, the juror had pointed out defendant to other persons, and that his face at that time indicated a dislike for defendant. The trial court, in chambers, out of the presence of the jury, advised the juror of the accusation and admonished him that if it were true the juror might be in contempt of court and would require an attorney. Subsequently, questioned under oath by defendant’s attorney, the juror denied that he had pointed at defendant or had spoken with anyone about her. Defendant argues that the court’s comments served to prejudice the juror against her and that the circuit court, in order to safeguard her rights, should have discharged the juror and replaced him with an alternate. She argues, too, that having failed to do so the court was required to give “curative instructions” to the juror concerning defendant’s right to a fair trial by an unbiased jury.

In Pekelder v. Edgewater Automotive Co. (1977), 68 Ill. 2d 136, 139, the court said:

“The general rule for cases involving motions for new trial due to jurors’ false testimony during voir dire has been stated in Department of Public Works & Buildings v. Christensen (1962), 25 Ill. 2d 273, 279-80:
‘Our decisions make it clear that a motion for new trial will be denied unless it is established not only that the juror answered falsely, but also that prejudice resulted. *** This [is] a matter primarily within his [the trial judge’s] discretion ***.’ ”

The same rule is applicable here. The transcript shows that the juror denied that he had spoken with anyone concerning defendant, and we fail to see in what manner the circuit court’s refusal to discharge the juror was prejudicial to defendant. We find no abuse of discretion in the circuit court’s failure to discharge the juror or to give additional “curative instructions.”

Defendant contends next that the circuit court erred in refusing to permit her to recall Ernest Luckett for the purpose of eliciting testimony to impeach certain portions of the testimony of the complainant, Amos Guilcrest. It was defendant’s theory, and she testified at trial, that although admittedly she was present when Maurice Jones robbed Guilcrest and King she did not know that he intended to do so, and did not in any manner participate in the commission of the offense. Defendant testified that she and Jones had left Luckett’s apartment to go to a liquor store to purchase additional supplies for a party which was then in progress, that as they walked along the street singing, Jones stated that he was going to rob somebody. She, thinking he was joking and not knowing that he would do anything like that, said “Okay.” She had not seen a weapon and did not think that he intended to commit any offense. When she saw that Jones intended to rob Guilcrest and King, she ran, and when Jones caught up with her he gave her some money. The record shows that Jones was subsequently found to be unfit to stand trial by reason of mental illness.

When Luckett was originally called as a witness the People objected to certain portions of his testimony on the ground that it constituted an attempt to prove an alibi for the defendant and that in her response to the People’s interrogatories no alibi defense had been indicated. This occurred on Friday afternoon, and following argument in chambers, the trial was recessed until Monday. On Monday Luckett was recalled. Upon completion of Luckett’s testimony defendant was called as a witness, and in the course of her testimony, defense counsel advised the court that she had overlooked asking Luckett certain questions for the purpose of eliciting testimony to impeach the testimony of Guilcrest. An offer of proof made by defendant’s attorney shows that if recalled Luckett would testify that on at least five occasions the complainant, Amos Guilcrest, came to his home and discussed the case; that he said “that he would not put Reucshelle Harris into this matter if he were paid the sum of $300.”

Defendant argues that the circuit court erred in denying her request and that “the admissibility of evidence to show motive and bias to lie is so well established as to not merit documentation.” Both Guilcrest and the arresting police officer testified that when defendant was taken into custody she said, “This is the first time I have ever done this.” Although defendant denied participation in the commission of the offense, she admitted that she was present at the scene. Defendant admitted that she was in possession of money taken in the robbery, and the testimony shows that when apprehended Jones was carrying the jacket which defendant had worn at the time of the robbery and defendant was carrying the leather coat which had been worn by Jones. The only matter about which Guilcrest testified, not also shown by other testimony, was that when the robbery occurred Jones had a .25-caliber magnum pistol and defendant had a dark sweater over her hand as though she were holding a gun. This was the only testimony which could have been motivated solely by Guilcrest’s prejudice against defendant. Whether to permit the recall of the witness was a question for the sound discretion of the circuit court, and assuming, arguendo, that the court should have permitted Luckett’s recall, we hold that the failure to do so was harmless.

Finally, defendant contends that the appellate court erroneously considered nonexistent testimony in reaching its conclusion that the evidence against the defendant was overwhelming. This contention is based on the fact that in its opinion the appellate court refers to the testimony “by the other robbery victim, Michael King” (57 Ill. App. 3d 639, 644) and the record shows that King did not testify. We need not engage in conjecture concerning the precise meaning intended by the court in making this statement. Defendant is correct in arguing that King did not in fact testify, but, nevertheless, the record contains sufficient evidence to prove defendant guilty beyond a reasonable doubt. We find no reversible error and the judgment of the appellate court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: MR. JUSTICE CLARK

license: Public Domain

text:
    (No. 49935.
    (No. 50067.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. CHARLES W. PETERSON, Appellant.—In re DOUGLAS McMILLAN, a Minor, Appellee.—(The People of the State of Illinois, Appellant.)

      Opinion filed Dec. 4, 1978.
    Rehearing denied Jan. 25, 1979.

      WARD, C.J., and UNDERWOOD, J., concurring.
    Mary Robinson, Deputy Defender, and Mark Schuster, Assistant Defender, of the Office of the State Appellate Defender, of Elgin, for appellant.
    William J. Scott, Attorney General, of Springfield (Donald B. Mackay, of Chicago, and Philip Weber, of Springfield, Assistant Attorneys General, of counsel), for the People.
    William J. Scott, Attorney General, of Springfield, and Carl E. Hawkinson, State’s Attorney, of Galesburg (Donald B. Mackay and Philip Weber, of Springfield, and Melbourne A. Noel, of Chicago, Assistant Attorneys General, and James E. Hinterlong and Linda M. Yodar, of the Illinois State’s Attorneys Association Prosecutors’ Appellate Service, of Ottawa, of counsel), for the People.
    Robert Agostinelli, Deputy Defender, and Michael J. Pelletier, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

These consolidated cases involve the admissibility, in probation revocation proceedings, of the accused probation violator’s allegedly involuntary confession and its fruits. We hold that the involuntary confession of an accused probation violator and the fruits of such a confession are inadmissible in a proceeding to revoke his probation. Accordingly, in cause No. 49935, People v. Peterson (1977), 50 Ill. App. 3d 853, we modify the judgment of the appellate court, vacate the judgment of the circuit court and remand the cause to the circuit court with directions to reconsider its decision revoking probation in light of the remaining evidence; in cause No. 50067, In re McMillan (1977), 51 Ill. App. 3d 940, we vacate the judgments of the appellate and circuit courts, and remand the cause to the circuit court with directions to determine whether McMillan’s confession was voluntary.

Although these consolidated cases share a common question of law, their procedural histories differ substantially and require separate treatment. In cause No. 49935, the probationer, Charles W. Peterson, was arrested by Crystal Lake police officers at about 12:10 a.m. on June 22, 1973, on the the charge of possession of a hypodermic syringe. They transported him to the Crystal Lake police station, where he was given Miranda warnings, though he was not told that he could stop the questioning at any time.

Two officers began to question Peterson in an interrogation room. They had received a tip from an unnamed informant that Peterson (along with two other men known to the informant only as “Mike” and “Eddie”) had burglarized a gas station on June 22, 1973, and the officers’ questions quickly focused on this incident. Peterson denied participating in the crime, and claimed that he had been in Chicago with his girlfriend on the night in question. Peterson refused to reveal his girlfriend’s name, however, claiming that he did not want to get her involved in the investigation. When the interrogating officers then indicated that they already knew her identity through information they had found in Peterson’s wallet, and that they intended to contact her, Peterson confessed the crimes, naming Eddie Crittendon as one of his accomplices.

At Peterson’s trial on the underlying criminal charges, the circuit court suppressed Peterson’s confession, finding it to have been the result of “psychological coercion” and of the failure to warn defendant of his right to discontinue the questioning at any time. Nonetheless, relying upon People v. Dowery (1975), 62 Ill. 2d 200, 206, the court held that same confession (along with the testimony of Eddie Crittendon) admissible at Peterson’s probation revocation hearing. The court eventually revoked Peterson’s probation, basing its decision in part upon the aforementioned evidence. The Appellate Court, Second District, modified in part, affirmed in part, and remanded (People v. Peterson (1977), 50 Ill. App. 3d 853), finding certain other defects in the judgment of the circuit court, and we granted Peterson’s petition for leave to appeal.

Peterson contends that the voluntariness of his confession was an issue of ultimate fact in the court’s ruling on the motion to suppress the confession in the trial on the underlying criminal charge, that the circuit court found that statement to have been involuntary, and that the State therefore was collaterally estopped from chailenging that finding in the subsequent probation revocation proceeding. We agree.

Voluntariness, and not just the existence of a technical Miranda violation, was an ultimate issue of fact subsumed in the circuit court’s ruling on Peterson’s motion to suppress his confession, because an involuntary confession may not be used to impeach the defendant’s testimony, whereas a mere technical Miranda violation does not foreclose such use of the confession. (Harris v. New York (1971), 401 U.S. 222, 224-25, 28 L. Ed. 2d 1, 4, 91 S. Ct. 643, 645. See also People v. Moore (1973), 54 Ill. 2d 33, 37; cert. denied (1973), 412 U.S. 943, 37 L. Ed. 2d 404, 93 S. Ct. 2787.) There can be no doubt that, in finding the defendant’s confession to have been the result of “psychological coercion” and of failure to warn of the right to discontinue questioning, the trial court found Peterson’s confession to have been involuntary. (Cf., e.g., Garrity v. New Jersey (1967), 385 U.S. 493, 496, 17 L. Ed. 2d 562, 565, 87 S. Ct. 616, 618 (mental coercion renders statement involuntary).) The State did not appeal this finding, and, accordingly, was collaterally estopped from challenging it in any subsequent proceeding (People v. Williams (1975), 59 Ill. 2d 557, 560-62), including a subsequent probation revocation hearing (People v. Grayson (1974), 58 Ill. 2d 260, 264-65).

People v. Dowery (1975), 62 Ill. 2d 200, 206, contrary to the State’s position, does not govern this case. In Dowery, this court held that, because the normal fourth amendment exclusionary rule does not apply to probation revocation proceedings, the suppression of evidence by virtue of that rule in a criminal trial did not preclude the State from seeking admission of such evidence in a subsequent probation revocation proceeding. Dowery thus did not hold that collateral estoppel did not attach to the prior finding of a fourth amendment violation. Rather, Dowery held only that even if such a violation had occurred, it was irrelevant, in the absence of a showing of “harassment.” 62 Ill. 2d 200, 206.

Thus, in this case, there is no question that the State has been collaterally estopped from challenging the circuit court’s finding that defendant’s confession was involuntary. The question remains, however, whether that involuntariness makes any difference in terms of the admissibility of that confession and its fruits at Peterson’s probation revocation proceeding. We conclude that it does make a difference.

It is well settled that some due process protections attach to probation revocation proceedings, because “the results of a probation revocation may be a deprivation of liberty and, consequently, as serious as the original determination of guilt.” (People v. Pier (1972), 51 Ill. 2d 96, 100.) The question, as always, is whether the particular protection or safeguard at issue is applicable.

In refusing to suppress evidence obtained in violation of the fourth and fourteenth amendments, People v. Dowery turned largely on the limited deterrent purposes of the judicially created rule excluding evidence obtained through unreasonable searches and seizures and other violations of the fourth amendment. (62 Ill. 2d 200, 204-07.) Considerations other than deterrence are involved in cases arising under the fifth amendment privilege against self-incrimination, however. The exclusionary rules of the fifth amendment and of section 10 of article I of our constitution are not judicially created but are, as the State concedes, an element of the constitutional provisions themselves. Although one can hypothesize contrary examples, as a general rule, the sanctity of the person is more deeply offended by invasions of his mind than of his home, or even of his pockets.

We also find it significant that several of those courts which have considered the question of the applicability of Miranda to probation revocation proceedings have expressly or impliedly noted that no question of involuntariness was properly before them. (See, e.g., United States v. Johnson (5th Cir. 1972), 455 F.2d 932, cert. denied (1972) , 409 U.S. 856, 34 L. Ed. 2d 101, 93 S. Ct. 136; People v. W. (1969), 24 N.Y.2d 732, 249 N.E.2d 882, 302 N.Y.S.2d 260; Cunningham v. State (Tex. Crim. App. 1972), 488 S.W.2d 117, 120.) The reason for those courts having expressed such reservations is obvious: There is a fundamental difference between violations of Miranda’s prophylactic rules and violations of the rights those rules were designed to protect. (See, e.g., Harris v. New York.) Nonetheless, several other courts have not drawn the line at even involuntary statements. Rather, they have simply held the privilege irrelevant to the admissibility of evidence in such proceedings. (E.g., State ex rel. Struzik v. Department of Health & Social Services (1977), 77 Wis. 2d 216, 221, 252 N.W.2d 660, 662 (parole revocation); Short v. United States (D.C. 1976), 366 A.2d 781.) Their reasoning apparently is that the privilege bars the admission of compelled testimony only in criminal cases, and that a probation revocation is not a criminal case. They further suggest that, to prohibit the use of such evidence in probation revocation proceedings would be to unnecessarily burden such proceedings with technical evidentiary rules. We do not agree.

The State, however, contends that the unavailability of a coerced confession at a criminal trial is deterrence enough, and that the State ought not be prohibited from incarcerating probationers through coercive investigatory techniques. We hold, however, that the “due process” of a probation revocation proceeding (Gagnon v. Scarpelli (1973) , 411 U.S. 778, 36 L. Ed. 2d 656, 93 S. Ct. 1756) must include forbearance from the use of coerced testimony and its fruits. The conditional liberty of a probationer may be different from that of the ordinary citizen, but it is not so different as to permit an individual to be taken from the sidewalk to the cell block on the basis of information wrung from his lips. Accord, State v. Smith (1975), 112 Ariz. 416, 542 P.2d 1115.

Society, no doubt, has a very important interest in protecting itself against further harm from persons convicted of crime. But that interest must chiefly be served at the time of initial sentencing. A sentence of probation is an affirmative determination that the individual does not represent a threat to the community. (Ill. Rev. Stat. 1975, ch. 38, par. 1005—6—1(a).) If the State seeks to overturn that decision, it must do so without the use of information forced from the lips of the accused. The circuit court therefore erred in holding that People v. Dowery prohibited exclusion of Peterson’s involuntary statement from evidence at the probation revocation hearing. U.S. Const., amends. V, XIV; Ill. Const. 1970, art. I, sec. 10.

For similar reasons, the fruits of that confession — the testimony of Eddie Crittendon — also should have been excluded. We note that there is no question of attenuation here, unlike in Michigan v. Tucker (1974), 417 U.S. 433, 41 L. Ed. 2d 182, 94 S. Ct. 2357, nor was the fifth amendment violation at issue here merely a technical one, e.g., one where the accused’s statement itself is concededly voluntary despite a Miranda violation somewhere in its ancestry. See Michigan v. Tucker (1974), 417 U.S. 433, 461, 41 L. Ed. 2d 182, 203, 94 S. Ct. 2357, 2372-73 (White, J., concurring in the judgment); cf. United States v. Ceccolini (1978), 435 U.S. 268, 55 L. Ed. 2d 268, 98 S. Ct. 1054 (fourth amendment violation).

However, because there were additional grounds for revocation alleged by the State, found by the circuit court, and upheld by the appellate court, we vacate the judgment of the circuit court, modify the judgment of the appellate court in cause No. 49935 and remand the cause to the circuit court to reconsider its decision in light of those grounds which remain undisturbed by the judgment of either this court or the appellate court.

We now turn our attention to cause No. 50067, In re McMillan. There is no transcript of the relevant suppression hearing, but the parties have stipulated as to the testimony adduced at that hearing.

The appellee in cause No. 50067, Douglas McMillan, is a juvenile probationer. He testified that, at approximately 7 p.m. on July 27, 1976, he was riding as a passenger in a car driven by Alfie Stambaugh, when the car was stopped by Abington police officers. The officers took Stambaugh into custody in their patrol car, and asked McMillan to follow them to the police station in Stambaugh’s car. McMillan complied, and shortly after his arrival at the station, Officer Edward L. Lindsey began to question him about certain burglaries and thefts. Although no one informed McMillan of his constitutional rights, McMillan himself several times demanded to see a lawyer. The only response he got was to be handed a phone book, and McMillan neither remembered nor found an attorney to call.

McMillan’s mother, responding to a telephone message from the police, arrived at the station shortly after 9 p.m. She, too, heard her son’s unanswered requests for counsel.

Shortly after 10 p.m. Officer Lindsey and another officer drove McMillan to the Mary Davis juvenile home in Galesburg, where they confined him to an “isolation room” and left him there overnight.

Lindsey returned the next morning (July 28, 1976), and McMillan was taken from the isolation room to an “administrative room” for further interrogation.

Officer Lindsey testified that, at this time, he read McMillan his Miranda rights; McMillan denies this. (There was no one else present in the room, and we have only their conflicting statements on this point.) Lindsey then gave McMillan a “voluntary statement form.” McMillan admits having initialled the “enumerated rights” on the face of the form, but denies having read it. Lindsey then told McMillan to write a statement regarding the thefts and burglaries, and McMillan complied.

The circuit court refused to suppress the confession at McMillan’s probation revocation hearing, the appellate court reversed (51 Ill. App. 3d 940), and we granted the State’s petition for leave to appeal.

The appellate court dealt with this confession as though it were an “admission” requiring a showing of voluntariness. (See, e.g., In re Haggins (1977), 67 Ill. 2d 102.) However, the admissibility of a confession is not governed by the rules applicable to judicial admissions of guilt, such as pleas of guilty (cf. Supreme Court Rule 402 (58 Ill. 2d R. 402)) and in-court admissions of probation violations. (Cf., e.g., In re Haggins (1977), 67 Ill. 2d 102.) Nonetheless, the question of voluntariness remains, and we see no justification for permitting greater coercion of juvenile probationers than of adult probationers. Their interests in their particular forms of conditional liberty are not so distinct as to permit a distinction as to the applicability of the privilege against self-incrimination to proceedings for revocation of that liberty.

However, since the circuit court apparently never determined whether McMillan’s confession was voluntary, and since there is conflicting testimony regarding the circumstances under which that confession was obtained, we think it necessary to have the trier of fact resolve these conflicts ab initio.

For the foregoing reasons, we vacate the judgments of the appellate and circuit courts in cause No. 50067 and remand the cause to the circuit court with directions to determine whether McMillan’s statement was voluntary, and if found not to have been voluntary, we direct that said confession and its fruits be suppressed, and McMillan be granted a new hearing. If said confession is found to have been voluntary, the court is directed to reinstate its judgment revoking probation.

49935 — Appellate court affirmed in part and modified in part; circuit court vacated; cause remanded, with directions.

50067 — Vacated and remanded, with directions.

WARD, C.J., and UNDERWOOD, J., concur in the judgment.


text:
    (No. 49588.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. MORRIS ELLIS, Appellee.

      Opinion filed Dec. 4, 1978.
    Rehearing denied Jan. 25, 1979.

      KLUCZYNSKI, J., took no part.
    William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald B. Mackay, Assistant Attorney General, of Chicago, and Paul P. Biebel, Jr., Deputy State’s Attorney, and Dorothy Kirie Kinnaird, Special Assistant State’s Attorney, of counsel), for the People.
    William J. Harte, Ltd., of Chicago, and Arthur Aaron Ellis and Morris W. Ellis, of Ellis & Ellis, of Chicago, for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The defendant, Morris Ellis, was convicted of two misdemeanor violations of the Election Code (Ill. Rev. Stat. 1973, ch. 46, pars. 29—11, 29—12) in a bench trial in the circuit court of Cook County. He was fined $100 for each conviction. The appellate court found the evidence insufficiently supported the convictions and reversed. (47 Ill. App. 3d 596.) We allowed the People leave to appeal. (65 Ill. 2d R. 315.) The parties agree the issue is whether the evidence was sufficient to establish guilt beyond a reasonable doubt.

During the primary election day of March 19, 1974, the defendant was a poll watcher. Among others who were at the polling place at 919 West Montrose Avenue in Chicago on that day were the two complainants, Patricia Fust, a Republican election judge, and Marion Clough, a Democratic election judge. On complaint of Fust, the defendant was arrested. Fust’s original complaint was “nolle pressed” on motion of the State and three new ones filed. One of those was dismissed. The other two are germane to this appeal. The first, over Fust’s signature, charged the defendant with failure to comply with an order of the election authority in that he continued to “electioneer” in the polling place after being told to stop, in violation of section 29—11 of the Election Code (Ill. Rev. Stat. 1973, ch. 46, par. 29—11). The second complaint, over Clough’s signature, charged the defendant with disregard of the Election Code (Ill. Rev. Stat. 1973, ch. 46, par. 29—12) in that he “knowingly solicited votes within the polling place” in violation of section 17—29 of the Election Code (Ill. Rev. Stat. 1973, ch. 46, par. 17—29). Section 29—11 of the Election Code provides:

“Any person who knowingly fails or refuses to comply with any lawful order of an election authority issued by the election authority in the performance of the duties of the election authority, shall be guilty of a Class A misdemeanor.”

Section 29 — 12 is:

“Any person who knowingly (a) does any act prohibited by or declared unlawful by, or (b) fails to do any act' required by, this Code, shall, unless a different punishment is prescribed by this Code, be guilty of a Class A misdemeanor.”

Section 17 — 29 provides:

“No judge of election, challenger, or other person shall, at any primary or election, do any electioneering or soliciting of votes or engage in any political discussion within any polling place or within 100 feet of any polling place; no person shall interrupt, hinder or oppose any voter while approaching within 100 feet of any polling place for the purpose of voting. Judges of election shall enforce the provisions of this Section.”

Five separate incidents, occurring on March 19, 1974, and giving rise to the charges, are involved. The first occurred about 9 a.m. when two voters, a man and a woman who were not together, entered the polling place at the same time. Patricia Fust, who had been an election judge for previous elections, testified the man, whose name she could not recall, asked for a Republican ballot, but the defendant said the voter “made a mistake” and wanted a Democratic ballot. She said she then told the defendant to “leave the voters alone. ” Marion Clough testified she recalled that the man and the woman, whose names were Bunting and Marks respectively, requested Republican ballots but that the defendant interjected with a direction they be given Democratic ballots. According to Clough, Bunting replied, “Sir, I know what I want.” Clough remembered Fust asking the defendant to leave the voters alone. Frank Alschuler, who was a poll watcher from 6 to 9:15 a.m., testified he saw a voter named Bunting check the “Republican” square on a certificate of registration. The defendant said the voter was confused and wanted a Democratic ballot, according to Alschuler, but the voter repeated his request for a Republican ballot; at this point Fust said the voter should not be harassed. Alschuler further testified that the voter finally marked the Democratic square of the card and crossed out the Republican mark. On cross-examination, upon being shown a voter’s red certificate of registration with the name Howard Bunting on it, Alschuler admitted there was no change or erasure but that the card was marked in the Republican square. Alschuler further testified that although he may have been mistaken about the name, he did see a man cross out the Republican square on the voter registration card and mark the Democratic square.

The defendant testified that he knew Howard Bunting and that he conversed with him on March 19, 1974, but that he did not speak to him inside the polling place. Nor did he have a conversation about Bunting with others inside the polling place. Witness Mary Hudik, a Democratic judge of election, testified that she did not see the defendant do “anything unusual,” that he helped “wheel in” disabled voters, and that she knew Howard Bunting and did not see the defendant talking to Bunting. Henrietta Marks, on behalf of the defendant, testified she entered the polling place at the same time as Howard Bunting and that the defendant said nothing to her in the polling place, nor did she hear him say anything to Bunting.

On rebuttal Howard Bunting testified that upon showing the woman behind the registration table his registration card and signing “the slip,” he was given a Democratic ballot which he refused, stating, “I’ll take a Republican.” He stated the defendant “told them to give me a Democratic ballot.” On questioning by the court, Bunting said the defendant made the statement prior to Bunting’s request for a Republican ballot.

The State maintains that this incident resulted in the order by the election judge, Fust, to “leave the voters alone,” and that the order was subsequently violated. Ill. Rev. Stat. 1973, ch. 46, par. 29—11.

Between 10 and 11 a.m., the second incident occurred. A female voter requested help while in the voting booth. Fust and Clough aided her. The defendant objected to the manner in which the help was given. Fust testified that the woman declared Democratic, stepped into the booth, and asked for help (after pulling down a lever resulting in three votes for one candidate) because she wished to cast votes for each of two candidates. Fust said she asked Clough, the Democratic judge, to step into the booth with her to explain how to operate the machine. As Fust was explaining to the voter, the defendant interrupted with an admonishment not to instruct the voters and that the voter was to vote for only one candidate. Fust testified she replied it was the voter’s choice. Marion Clough testified that a voter asked to be shown how to use the machine so Fust asked the witness to enter the booth with her. The witness said Fust “pulled the curtains over our shoulders” and explained to the voter how to vote for an office for which there are three candidates. The defendant, Clough said, pulled the curtains apart, pushed Fust aside, and “said you don’t want to vote for him.” The voter then pulled the lever for one candidate and departed.

Genevieve Mudloff, “a checker for the defendant” in the polling place, testified that she never saw him tell voters how to vote or enter a voting booth. She did say Fust was hostile towards the defendant, and that when the defendant told Fust she should not be behind the curtain, Fust became visibly angry and told the defendant to leave the room, which he did. Mary Hudik also testified that the defendant admonished Fust not to go behind the curtains. The defendant’s account was that, having noticed Fust and Clough, once or twice before, enter a polling booth when a voter requested assistance, he, upon the occurrence of this particular incident, informed Fust that she was violating the law while instructing the voter and remaining behind closed curtains. He said that he approached Fust and Clough only after overhearing the conversation between the voter and Fust and after the two judges and the voter left the booth. The defendant said he then complied with Fust’s order to leave the polling place.

The third incident involved a voter who, according to Fust, requested a Republican ballot. The defendant interrupted, indicating the man actually wanted a Democratic ballot. Fust testified she asked the man which ballot he wanted but the defendant continued to talk. Fust asked the defendant to let her ask the voter for his preference. When she determined the voter was interested in a specific candidate, she changed the ballot designation to Democratic to reflect the voter’s choice. She was unable to recall the voter’s name. Marjorie Alschuler testified that a voter requested and was given a Republican ballot, but the defendant said he should be given a Democratic ballot. The “judge to whom he [the defendant] was speaking” contradicted the defendant. When it was finally determined the voter wished to vote for a Democratic candidate, the judges changed it for him, according to Mrs. Alschuler. Although she was initially uncertain of the voter’s name, she identified him, upon seeing ballot applications, as Frank Palacci.

The last two incidents were related by Mr. and Mrs. Alschuler respectively. He testified the defendant passed out campaign literature inside the polling place, and she testified the defendant stood before an unoccupied, open booth, with a voter, pointing to various levers on the machine.

The defendant denied urging anyone to change a vote, passing out campaign literature in the polling place, being told to leave voters alone, instructing or telling any voter how to vote, or otherwise soliciting votes or electioneering within 100 feet of the polling place. There was corroborative testimony, indicated above, by defense witnesses. Three witnesses, Jerome Levatino, Arthur Barton and Sidney Marovitz, testified that the defendant’s reputation in the community and as a member of the bar was excellent.

Violation of a provision of the Election Code is a criminal offense. (Ill. Rev. Stat. 1973, ch. 46, par. 29—13.) In a criminal proceeding, a reviewing court must not reverse a “conviction where the evidence is not so improbable as to raise a reasonable doubt of guilt.” (People v. Novotny (1968), 41 Ill. 2d 401, 412; People v. Yarbrough (1977), 67 Ill. 2d 222, 227.) Where there is conflicting testimony, as here, regarding five separate incidents in the poHing place, the appeals court must not substitute its judgment, because the weight of the evidence and credibility of witnesses are strictly within the competence of the fact finder. (People v. Orlando (1942), 380 Ill. 107, 119; People v. Novotny (1968), 41 Ill. 2d 401, 412; People v. Yarbrough (1977), 67 Ill. 2d 222, 227.) Only where the evidence fails to sustain the verdict, or is improbable, unsatisfactory or inconclusive, may we set aside a conviction; and there it is our duty to do so. People v. Reese (1966), 34 Ill. 2d 77, 80; People v. Coulson (1958), 13 Ill. 2d 290, 296.

Our review of the record compels us to reverse the appellate court because the evidence is not so improbable as to raise a reasonable doubt of guilt. The cases the defendant cites are not helpful since the evidence here is simply not insufficient as it was in those cases. We are not faced with problems such as the testimony of a single questionable witness or weak identifications. Rather, we have several occurrence witnesses with corroborative and specific testimony on the part of State witnesses. Moreover, the defendant either denies an incident or gives a contrary version while his witnesses generally attest to his good conduct on that day, with only some reference to specific incidents, or deny unusual or improper conduct on his part. The convictions must stand.

For the reasons stated, we reverse the judgment of the appellate court and affirm the judgment of the circuit court.

Appellate court reversed; circuit court affirmed.

MR. JUSTICE KLUCZYNSKI took no part in the consideration or decision of this case.


author: MR. JUSTICE KLUCZYNSKI MR. JUSTICE GOLDENHERSH,

text:
    (No. 50615.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JACK CANNON SIMPSON, Appellant.

      Opinion filed Dec. 4, 1978.
    Rehearing denied Jan. 25, 1979.

      GOLDENHERSH, J., dissenting.
    Richard J. Wilson, Deputy Defender, and Robert E. Davison, of the Office of the State Appellate Defender, of Springfield, for appellant.
    William J. Scott, Attorney General, and C. Joseph Cavanagh, State’s Attorney, both of Springfield (Donald B. Mackay and Melbourne Noel, Assisstant Attorneys General, of Chicago, and Robert C. Perry and Marc D. Towler, of the State’s Attorneys Appellate Service Commission, of Springfield, of counsel), for the People.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

Defendant was convicted of murder in April 1973 after a jury trial in the circuit court of Sangamon County and sentenced to 25 to 75 years imprisonment. The appellate court reversed and remanded (39 Ill. App. 3d 661), but this court reversed the decision of the appellate court and remanded to that court for determination of issues raised but not reached in its original disposition of the case (68 Ill. 2d 276). Upon remand the appellate court affirmed defendant’s conviction and sentence (57 Ill. App. 3d 442). We granted defendant’s petition for leave to appeal under our Rule 315 (65 Ill. 2d R. 315).

Two issues are raised in the instant appeal: Whether the trial court erred in refusing to instruct the jury on the lesser included offenses of voluntary and involuntary manslaughter and whether the trial court properly refused special limiting instructions concerning defendant’s admission, in addition to the general admissions instruction.

Defendant was charged with the murder of his paramour. He. presented no evidence but argues that evidence contained in the State’s case was sufficient to justify jury instructions on both voluntary and involuntary manslaughter.

Voluntary manslaughter is an unjustified killing committed while under a sudden and intense passion resulting from serious provocation; serious provocation is conduct sufficient to excite an intense passion in a reasonable person (Ill. Rev. Stat. 1977, ch. 38, par. 9—2). “It is well settled that if there is evidence in the record which, if believed by a jury, would reduce the crime to manslaughter, a manslaughter instruction tendered by the defendant must be given. (People v. Canada (1962), 26 Ill. 2d 491; People v. Harris (1956), 8 Ill. 2d 431; People v. Brown (1953), 415 Ill. 23).” (People v. Handley (1972), 51 Ill. 2d 229, 235; accord, People v. Craven (1973), 54 Ill. 2d 419, 425; People v. Joyner (1972), 50 Ill. 2d 302, 306; Stevenson v. United States (1896), 162 U.S. 313, 314, 40 L. Ed. 980, 981, 16 S. Ct. 839; Ross v. State (1973), 61 Wis. 2d 160, 169-73, 211 N.W.2d 827, 831-33.) It is also well settled, however, that such an instruction should not be given if the evidence clearly demonstrates that the crime was murder or nothing and there is no evidence to support a conviction of manslaughter. People v. Craven (1973), 54 Ill. 2d 419, 425; People v. Handley (1972), 51 Ill. 2d 229, 235; People v. Jones (1943), 384 Ill. 407, 412.

The resolution of the question of whether defendant was entitled to the voluntary manslaughter instruction depends in the final analysis upon a detailed consideration of the evidence (People v. Burnett (1963), 27 Ill. 2d 510, 511), and in this case, that evidence is contained solely in the State’s case. Upon a review of the entire record in this case, and in particular that evidence relied upon by defendant, we cannot say there was any evidence which, if believed by the jury, would indicate that defendant acted upon serious provocation which would have excited a reasonable man to intense passion.

Defendant and deceased engaged in social drinking beginning at about 4 p.m. on a Sunday afternoon. At about midnight they were seen in a bar where they had a drink. The bar manager testified that defendant was not drunk and had no facial cuts. Between 1 and 1:30 a.m. the next morning, a deputy sheriff saw defendant and deceased engaged in a loud, verbal argument in a parking lot 250 to 300 feet from the bar. The officer saw defendant’s face at close range, but observed no cuts or injuries. The officer told the defendant and deceased to go home and observed defendant enter the passenger side of deceased’s car. The officer followed the car for a few miles because he felt the altercation might recommence.

Deceased’s car was found off a county road at about 3:30 that morning. It was stuck in a ditch, heading in the direction of a lake. Her body was discovered under a bridge, down an embankment from her car. Blood stains were found on the panel of the passenger door of the vehicle. Deceased died from a single gunshot wound. The bullet entered through the upper lip and was fired from a distance of more than six or seven inches. The fatal wound was caused by a .38-caliber pistol bullet which could have been fired from a Titan Tiger .38 pistol. Defendant had purchased such a gun approximately seven months prior to the shooting. The deceased’s body had other wounds, scratches or bruises, most of which occurred after death. A pathologist testified that deceased had ,ll%.alcohol in her blood at the time of her death and that an individual may suffer some observable effects of alcohol with a .1% level of alcohol in the blood.

Defendant was next seen when he arrived at his estranged wife’s trailer at 5 a.m. He had mud and briars on his boots and pants, a “deep gash” on the bridge of his nose, blood stains on his shirt, and abrasions on his right knuckles. He carried a bundle which contained clean clothing and deceased’s purse. He cleaned up, changed clothing, and burned a bundle the size of a throw pillow.'

The evidence shows that defendant and deceased had been arguing loudly and intently. However, mere words have never been held to be sufficient provocation to establish voluntary manslaughter. People v. Crews (1967), 38 Ill. 2d 331, 335; Ill. Ann. Stat., ch. 38, par. 9—2, Committee Comments — 1961, at 206-07 (Smith-Hurd 1972); M.C. Bassiouni, Substantive Criminal Law sec. 8.1.1 (1978).

The evidence shows that at 5 o’clock on the morning of decedent’s death, the defendant had a gash on his nose which he emphasizes could have been caused by decedent’s fingernail. Evidence of mutual, physical combat has been held sufficient to require a manslaughter instruction. (People v. Craven (1973), 54 Ill. 2d 419, 425; People v. Canada (1962), 26 Ill. 2d 491, 494; see also People v. Crews (1967), 38 Ill. 2d 331, 335; Ill. Ann. Stat., ch. 38, par. 9—2, Committee Comments—1961, at 206-07 (Smith-Hurd 1972); M.C. Bassiouni, Substantive Criminal Law sec. 8.1.1 (1978); W. La Fave and A. Scott, Criminal Law sec. 76, at 574 (1972).) But, as the Supreme Judicial Court of Massachusetts noted, in affirming a trial court’s refusal of a voluntary manslaughter instruction, “[i] t is an extravagant suggestion that scratches by the wife could serve as provocation for a malice-free but ferocious attack by the defendant with a deadly instrument.” (Commonwealth v. Rembiszewski (1973), 363 Mass. 311, 321, 293 N.E.2d 919, 926.) An abrasion on a knuckle normally bespeaks an injury which is self-inflicted. Blood on the door panel is not indicative of serious provocation. Scratches or bruises suffered by decedent before death do not demonstrate that defendant was aroused to intense passion by serious provocation.

The record fails to present any evidence of the sort of provocation which would have justified voluntary manslaughter instructions. There was no testimony of an exchange of blows (People v. Craven (1973), 54 Ill. 2d 419; People v. Joyner (1972), 50 Ill. 2d 302; People v. Taylor (1967), 36 Ill. 2d 483). There was no testimony of and corroborating evidence of a severe beating by the deceased upon the defendant (People v. Harris (1956), 8 Ill. 2d 431; People v. Papas (1942), 381 Ill. 90) or of a threatened attack (People v. Pierce (1972), 52 Ill. 2d 7; People v. Jones (1943), 384 Ill. 407). There was no testimony of an armed attack immediately prior to the fatal encounter to justify the jury in concluding that the deceased was armed at the moment of that encounter (People v. Canada (1962), 26 Ill. 2d 491). The evidence of provocation presented by the record here is more analogous in seriousness to that found in People v. Izzo (1958), 14 Ill. 2d 203, and People v. Handley (1972), 51 Ill. 2d 229, in which no instruction on voluntary manslaughter was justified. In the former there was a disagreement over a contract; in the latter the victim knocked down two assailants and choked one of them while being beaten by a group of persons.

Defendant contends that “the appellate court erred by holding that the defendant in a homicide prosecution who does not testify or present other evidence is prohibited from instructing the jury on manslaughter.” We do not so understand the appellate court opinion. It held only that there was insufficient evidence in this case to justify manslaughter instructions. A defendant is entitled to such instructions if the record establishes a basis for them, irrespective of the source of the requisite evidence. (See People v. Canada (1962), 26 Ill. 2d 491, 492; People v. Craven (1973), 54 Ill. 2d 419, 425.) The record here, however, is devoid of evidence of serious provocation sufficient to excite a reasonable man to intense passion and justify a voluntary manslaughter instruction.

The crux of the offense of involuntary manslaughter is recklessness. (Ill. Rev. Stat. 1977, ch. 38, par. 9—3.) Although defendant did argue that he is entitled to an instruction on involuntary manslaughter, he states as well that “there was no direct evidence of any recklessness on the part of the defendant in this case which would establish involuntary manslaughter.” We agree. Nor is there any circumstantial evidence of recklessness. Defendant was not entitled to an involuntary manslaughter instruction. See People v. Dewey (1969), 42 Ill. 2d 148, 157-58.

Defendant’s final contention pertains to his police station response to his wife’s accusation that he had told her he killed the deceased. Although in our first opinion in this case we held that the assistant State’s Attorney’s recounting of the wife’s accusation and defendant’s response was properly introduced as an admission (People v. Simpson (1977), 68 Ill. 2d 276, 282), defendant now argues he was entitled to a special limiting instruction. We there held that the defendant’s statement was an admission that he had told his wife he committed the murder; his wife’s statement was necessary to place the defendant’s statement in context. The jury was given the general admissions instruction which informed them: “You have before you evidence that the defendant made admissions of facts relating to the crime charged in the indictment. It is for you to determine what weight should be given to the admissions. In determining the weight to be given an admission, you should consider all of the circumstances under which it was made.” Illinois Pattern Jury Instructions, Criminal, No. 3.06 (1968).

The appellate court, relying on our first opinion in this case, properly rejected defendant’s argument that his statement went only to his credibility and that he was entitled to a limiting instruction to that effect. His statement was an admission and admissible as such (People v. Simpson (1977), 68 Ill. 2d 276, 282). Defendant argues here that the trial court erred in refusing his tendered instruction directing the jury to consider his wife’s statement, not as proof of the fact stated, but only to give meaning to the defendant’s reply. The wife’s statement set forth what the defendant admitted having said. It was an intrinsic part of the admission. The jury was properly instructed by the pattern admissions instruction which placed upon it the duty to determine the weight to be given the admission. The admission was not hearsay (People v. Newbury (1972), 53 Ill. 2d 228, 234) and was directly relevant to the issue of whether defendant had committed the offense charged. The defendant’s tendered instruction would have improperly impinged upon the jury’s evidence-weighing function and would have improperly limited its consideration of the evidence. The trial court did not err in refusing defendant’s instruction.

For the above reasons, the judgment of the appellate court is affirmed.

Judgm en t affirm ed.

MR. JUSTICE GOLDENHERSH,

dissenting:

In my dissent to the first opinion in this case (68 Ill. 2d 276, 284-85) I stated that in my judgment the testimony concerning defendant’s admission was inadmissible, and “Assuming, arguendo, that the testimony were in some manner rendered admissible, it should nevertheless have been excluded. There are many situations in which the admissibility of evidence depends upon whether its probative value outweighs its prejudicial effect to the defendant.” The majority opinion demonstrates conclusively that by reason of this admission defendant was deprived of a fair trial.

Er the original opinion the majority said: “The admission here was not that defendant shot Gwen, but that he had previously told his wife he had.” (68 Ill. 2d 276, 282.) The instruction of which defendant complains told the jury: “You have before you evidence that the defendant made admissions of facts relating to the crime charged in the indictment. It is for you to determine what weight should be given to the admissions. In determining the weight to be given an admission, you should consider all of the circumstances under which it was made.” As defendant argues, the admission that he had made a statement to his wife has now been transformed into an admission “of facts relating to the crime charged in the indictment.” Without an additional cautionary instruction to the jury to the effect that this evidence showed only that he had made the statement to his wife and was not an admission of the commission of the offense, defendant could not possibly have received a fair trial. The conviction should be reversed and the cause remanded for a new trial.


author: MR. JUSTICE UNDERWOOD MR. JUSTICE GOLDENHERSH,

text:
    (No. 49919.
    DONALD R. STRYKER, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.

      Opinion filed October 6, 1978.

      GOLDENHERSH, J., WARD, C.J., and MORAN, J., dissenting.
    Ludolph J. Wilson, of Wilson, Staben & Wilson, of Waukegan, for appellant.
    Querrey, Harrow, Gulanick Sc Kennedy, Ltd., of Chicago (Victor J. Piekarski, of counsel), for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Plaintiff, Donald R. Stryker, brought this action for a declaratory judgment in the circuit court of Lake County seeking to determine whether a provision in an automobile liability policy issued to him by defendant, State Farm Mutual Automobile Insurance Company, violates public policy and is therefore ineffective. The provision in question requires that any amount payable for bodily injury under uninsured motorist coverage be reduced by benefits paid an insured for such injury under any workmen’s compensation law. The circuit court, citing this court’s opinion in Ullman v. Wolverine Insurance Co. (1970), 48 Ill. 2d 1, upheld the policy provision and entered summary judgment for the defendant. A divided appellate court affirmed (50 Ill. App. 3d 879), and we granted plaintiff leave to appeal.

Plaintiff’s complaint alleged that he was involved in an automobile collision with a vehicle owned and operated by an uninsured driver; that at the time of the accident plaintiff was insured under a policy issued to him by defendant; that the policy included uninsured motorist coverage in the amount of $10,000 but a setoff provision in the policy reduced defendant’s liability by amounts paid under workmen’s compensation law; that plaintiff received benefits from his employer for injuries sustained in the accident pursuant to the Workmen’s Compensation Act (Ill. Rev. Stat. 1971, ch. 48, par. 138.1 et seq.), but that plaintiff’s damages exceeded the amount of compensation payments; that his employer’s workmen’s compensation carrier “waived any subrogation rights to amounts which may be payable under the [un] insured motorist provisions” of plaintiff’s policy; and that an actual controversy existed between plaintiff and defendant regarding plaintiff’s rights under the insurance policy. Plaintiff subsequently filed an admission of the fact that workmen’s compensation benefits received by him exceeded the $10,000 policy limit.

In Ullman, the plaintiff sought a judgment declaring that the same setoff provision in question here violated the public policy expressed by the uninsured motorist statute (Ill. Rev. Stat. 1965, ch. 73, par. 755a), which required all automobile liability insurance policies to contain uninsured motorist coverage in the amount mandated for liability protection by the Financial Responsibility Law (minimums of $10,000 per person and $20,000 per accident (Ill. Rev. Stat. 1965, ch. 951/2, par. 7—203)). Plaintiff there contended the statute manifested a legislative intent that an insurer should not be permitted to reduce its liability by any method, including a reduction for benefits paid plaintiff under the workmen’s compensation law, below the minimum provided in the Financial Responsibility Law. In holding for defendant, the court noted that there was no language in the then-applicable uninsured motorist statute either prohibiting or authorizing the insurer to make such deductions. It based its decision on the fact that the Workmen’s Compensation Act (Ill. Rev. Stat. 1965, ch. 48, par. 138.5(b)) required an employee who had received compensation under the Act to reimburse the employer from any recovery the employee received from a third party legally responsible for the employee’s injuries, the employee being entitled to keep only that portion of the recovery which exceeded the benefits paid the employee as compensation. Because of this obligation, the court reasoned that “if the deduction challenged here is permitted, the employee’s position is the same under the uninsured motorist’s coverage as it would be had the tortfeasor carried the minimum insurance. Where the tortfeasor is insured, the employee reimburses his employer in fuH from the recovery from the tortfeasor. Where the tortfeasor is uninsured, the benefits paid by the employer are deducted from the recovery. If the benefits paid by the employer exceed the amount payable under the coverage, as here, the insurance carrier is without liability. In neither instance does the employee retain both compensation from the employer and identical damages from the tortfeasor. The deduction provision does not cause the employee with uninsured motorist’s coverage to have less financial protection than he would have had if the tortfeasor had carried insurance in the minimal amount.” (48 Ill. 2d 1, 7.) The setoff provision was thus upheld.

The posture of the parties in the present case is essentially the same as in Ullman with one exception. Plaintiff and the compensation carrier here have reached an agreement whereby, it is alleged: “[T]he workman’s compensation insurance carrier *** has waived any subrogation rights to amounts which may be paid under the insured [sfc] motorist provisions of the *** automobile insurance policy ***.” Plaintiff maintains that this “waiver” means that any recovery by him need not be turned over to his employer or his workmen’s compensation carrier and that, consequently, the rationale of Ullman is not applicable. Plaintiff’s argument, however, misconstrues the reasoning of the Ullman opinion. That opinion did not hold that the proceeds of uninsured motorist coverage were subject to the reimbursement rights created by the Workmen’s Compensation Act in favor of the payor of workmen’s compensation benefits (Ill. Rev. Stat. 1965, ch. 48, par. 138.5(b)). Indeed, there is considerable uncertainty whether that right encompasses uninsured motorist proceeds. Under the Workmen’s Compensation Act, where the injury “was caused under the circumstances creating a legal liability for damages on the part of some person other than [the] employer to pay damages, then legal proceedings may be taken against such other person,” and from the proceeds “there shall be paid to the employer the amount of compensation paid *** to [the] employee.” (Ill. Rev. Stat. 1971, ch. 48, par. 138.5(b).) Our research reveals no opinion of this court deciding whether this statutory right or common law subrogation principles give the compensation payor a right to reimbursement from uninsured motorist proceeds as well as proceeds recovered from the tortfeasor. Nor is it necessary to decide that question here..

The Ullman court focused upon the purpose of the uninsured motorist statute, which was to place the insured in substantially the same position he would have occupied had the tortfeasor been insured. Since, had the tortfeasor been minimally insured, the compensation carrier’s rights to reimbursement would have precluded recovery by the plaintiff, the setoff provision did not operate in derogation of public policy and there was no reason to invalidate it. In Ullman the court was not concerned with the question whether, if recovery were allowed, plaintiff would benefit from it. Rather, it compared the result if the setoff was upheld with the result if the tortfeasor had been insured.

A similar comparison in this case yields the same conclusion. If the tortfeasor had been minimally insured, the workmen’s compensation carrier’s right to reimbursement from those proceeds would have precluded any benefits to plaintiff therefrom. Here, the tortfeasor was uninsured and the setoff provision prevents plaintiff from receiving those proceeds. Thus plaintiff is in no better or worse position than he would have been if the tortfeasor had been minimally insured, and Ullman is precisely on point. Even if we assume that the “waiver” of “any subrogation rights” the compensation carrier might have against uninsured motorist proceeds was in fact a waiver of an extant right, a proposition yet to be decided, that “waiver” is simply irrelevant to the holding in Ullman.

Although plaintiff asks us to overrule Ullman, he presents no persuasive reasons for doing so. To the contrary, the uninsured motorist statute has been reenacted by the General Assembly since that decision without any suggestion that Ullman did not correctly reflect the public policy of this State. “[T] he re-enactment of a statute which has been judicially construed is an adoption of the construction, unless a contrary intent clearly appears.” (Gaither v. Lager (1954), 2 Ill. 2d 293, 301.) This rule has been termed “axiomatic” by this court (People ex rel. County of Kane v. Crawford (1971), 48 Ill. 2d 227, 230, citing City of Champaign v. City of Champaign Township (1959), 16 Ill. 2d 58, 64), “since the legislature is presumed to know the construction the statute has been given and, by re-enactment, is assumed to have intended for the new statute to have the same effect” (48 Ill. 2d 227, 230; 16 Ill. 2d 58, 64).

Finally, we are not persuaded by the contention that plaintiff, having paid a premium for uninsured motorist coverage, is therefore entitled to recover. This policy, like all others, is a contract between the company and the policyholder, the benefits of which are determined by the terms of the policy purchased insofar as those terms are not contrary to public policy. The terms of this, policy, held valid in Ullman, do not entitle the policyholder to recover under the circumstances present here. Premiums are computed on the basis of the coverage provided, and plaintiff did not pay a premium for the coverage he now claims.

The judgment of the appellate court is affirmed.

Judgment affirmed.

MR. JUSTICE GOLDENHERSH,

dissenting:

I dissent. The decision in Ullman v. Wolverine Insurance Co. (1970), 48 Ill. 2d 1, upon which this opinion rests, is based on a faulty premise rendered nó less fallacious by the passage of time. As Mr. Justice Ward’s dissent in Ullman so eloquently states it, the recovery “in the case of an uninsured tortfeasor is based on a contract the employee has had with a third person, i.e., the insurance company, which for a premium provided him with uninsured motorist coverage. There can be no well-founded objection to a so-called double recovery under these circumstances. To deny the employee full recovery is to cause, as I see it, an unjust enrichment of the insurance company to which premiums have been paid.” (48 Ill. 2d 1, 10.) Ullman was wrongly decided and we should not perpetuate error in the manner which the majority opinion does in this case.

WARD, C.J., and MORAN, J., join in this dissent.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 50334.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. STEPHEN T. BELLER, Appellant.

      Opinion filed January 12, 1979.

      Ralph Ruebner and Mary Robinson, Deputy Defenders, and Michael Mulder, Assistant Defender, of Elgin, for appellant.
    William J. Scott, Attorney General, of Springfield, and Robert H. Howerton, State’s Attorney, of Marion (Donald B. Mackay, Melbourne A. Noel, Jr., and David Barkhausen, Assistant Attorneys General, of Chicago, and Martin N. Ashley, of the Illinois State’s Attorneys Association Prosecutors’ Appellate Service, of Mt. Vernon, of counsel), for the People.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Defendant, Stephen T. Beller, was convicted of burglary and felony theft in a jury trial in the circuit court of Williamson County. Before being sentenced, defendant pleaded guilty to three other burglary charges pursuant to a negotiated plea agreement that included a sentence recommendation for all the foregoing offenses and immunity from prosecution with respect to some 70 other burglaries and thefts under investigation. The court sentenced defendant to four terms of 4 to 15 years’ imprisonment, the sentences to form consecutive sets of two concurrent sentences each. The appellate court reversed the portion of the judgment which directed that defendant’s sentences be consecutive to a previous parole-violation sentence, and otherwise affirmed. (54 Ill. App. 3d 1053.) The court rejected defendant’s arguments that prosecutorial comments on defendant’s failure to offer his exculpatory explanation at the time of his arrest and his failure to call a corroborating witness at trial had violated defendant’s privilege against self-incrimination and denied him due process of law. We granted leave to appeal.

On December 13, 1975, the Ronald Momeweg home near Johnson City was burglarized. Police arrested Jimmie D. Walker after Walker sold a ring positively identified as stolen from the Morneweg residence. Walker told police that defendant had been involved in some burglaries and was keeping stolen items in the house where he was staying in Johnson City. After obtaining a warrant, police searched the house, seized a number of items, and arrested defendant. Some of the items seized were positively identified by the Momewegs at trial as coming from their home; others were identical in type, size and color to items stolen from the home.

Walker, originally a co-defendant in the trial, testified for the State under a statutory grant of immunity (Ill. Rev. Stat. 1975, ch. 38, par. 106—1 et seq.). He stated that he drove the getaway car while Larry Meyer and defendant burglarized the Morneweg residence. He described the subsequent division of the stolen merchandise, detailing the items apportioned to each of the accomplices. Walker identified items seized from defendant’s house as belonging to defendant’s share of the proceeds from the burglary. Walker also said that defendant had asked him to testify that he had sold some of the stolen items to defendant; Walker said that he refused.

Defendant’s testimony raised a defense of innocent purchase. Defendant testified that he had bought from Jimmie Walker most of the items identified at trial as coming from the Morneweg home. He added that he had bought one item from a stranger in a bar. Several other witnesses were called by defendant: Larry Meyer testified that Walker had tried to sell him some of the items in question and that he had driven Walker to defendant’s house several times so that Walker could sell defendant some of the items. Mary Lawrence, the mother of defendant’s fiancee, testified that Walker and Meyer several times drove up to her house, where defendant was staying, and that defendant went out to the car and returned with several of the items in question. James Lawrence, the brother of defendant’s fiancee, testified that he was present in Meyer’s house on one occasion when defendant bought one of the stolen items from Walker. Two prisoners from the Williamson County jail testified for the defense that they had overheard Walker in jail telling defendant that he would admit selling some of the stolen items to defendant but that defendant would have to find his own explanations for the other items Walker had sold him. These two witnesses also stated they had been intimidated prior to trial by police talk about perjury penalties and the effect the witnesses’ testimony might have upon their own cases. A detective testified in rebuttal that at the request of the State’s Attorney the officers interviewed the two prisoners about their intended testimony, and that one said he had not seen or heard anything about which to testify. The other witness indicated he did not know what he had heard and did not know whether he should say anything. The detective testified he had told them about the offense of perjury.

Defendant contends that the prosecutor’s reference in closing argument to defendant’s failure to offer his exculpatory explanation at the time of his arrest violated his privilege against self-incrimination and denied him a fair trial under the doctrine of Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240. A police detective testified that, when defendant was being driven to the county jail after his arrest, he asked the witness whether police had Larry Meyer in custody and the witness responded that they did not. Meyer subsequently pleaded guilty to the Momeweg burglary in a separate case. The witness added that neither he nor the other officers in the car were questioning defendant at that time. The evidence does not indicate whether defendant had been given the Miranda warnings when he asked the question. Both the appellate court and defendant’s brief in this court have asserted that the record did not reveal whether defendant was ever given the Miranda warnings. In fact, however, the record contains a Miranda waiver form signed by defendant shortly after he arrived at the county jail. Aside from the question about Meyer, defendant made no statements to police.

The prosecutor’s theory at trial was that defendant’s question about Meyer was an implied admission, showing defendant’s knowledge of Meyer’s involvement in the burglary, implying that defendant was Meyer’s accomplice, and demonstrating that defendant’s story of innocent purchase from Walker was a subsequent fabrication. The prosecutor made the following closing argument:

“[W]hen the Defendant was arrested you heard Detective Wiseman on the stand say as he was being transported back, ‘Do you have Larry Meyer under arrest?’ He knew at that time that the man that he had gone in the Morneweg house with was in fact Larry Meyer. He knew that that was this co-Defendant. He knew that that was the man, the man who could hurt him most and he wanted to know right then, is Larry Meyer under arrest. *** Counter-posed against that — that very telling item of proof, is the Defendant’s statement, I bought these items from who. Walker. Jimmy Walker. I didn’t have anything to do with it. Meyer didn’t sell me these items. Walker sold me those items.
If that were true, ladies and gentlemen of the jury, when he was arrested, who would he be asking about? He wouldn’t ask about Meyer. He would say, do you have Jimmy Walker under arrest. I want to talk to that young man. I want you to talk to that young man because he sold me those items. That’s what he would have said. He would not have asked about Meyer, not the one who went in the house with him, he would have asked about the man who sold the stuff to him.”

He returned to this theme in rebuttal:

“When this man was arrested, and when he wanted to know where Meyer was, he [sfc] co-defendant, he never told anybody, I bought this stuff. From Jimmy Walker. I bought it ***.”

Defendant has characterized these remarks as comments on his post-arrest silence. In view of the rationale of the majority opinion in Doyle, we are compelled to agree. Defendant’s question to the police had been volunteered by him, and the prosecutor was entitled to draw legitimate inferences from that question during closing argument. (People v. Parks (1978), 57 Ill. App. 3d 405, 409; State v. Dorsey (1978), 224 Kan. 152, 153, 578 P.2d 261, 264; Commonwealth v. Hoffer (1978),---Mass.---,---, 377 N.E.2d 685, 692; Bell v. State (1977), 267 Ind. 1,--, 366 N.E.2d 1156, 1160.) The prosecutor, however, did more than this. He emphasized the alleged inconsistency between defendant’s question at the time of his arrest and his exculpatory story at trial by stressing the fact that when defendant asked police about Meyer he never mentioned Walker or stated that he had purchased the stolen merchandise. Although defense counsel objected to the prosecutor’s comments for the first time on appeal, the appellate court concluded that if the comments violated the rule of Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240, they would constitute plain error.

In Doyle the Supreme Court held that a defendant was denied due process when a State prosecutor sought to impeach the defendant’s exculpatory story, told for the first time at trial, by cross-examining him about his failure to tell the story at the time of his arrest after receiving Miranda warnings. The court reasoned that “every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested.” (426 U.S. 610, 617, 49 L. Ed. 2d 91, 97, 96 S. Ct. 2240, 2244.) A threshold question in this case is whether the Doyle rule is applicable when there is no evidence that defendant was previously given the Miranda warnings. We hold that the rule is applicable. The Miranda warnings do not confer rights on a defendant; they merely advise a defendant, who may be ignorant or intimidated, that he possesses such rights. Since every arrested person has the right to remain silent and may be aware of this right even in the absence of Miranda warnings, post-arrest silence remains “insolubly ambiguous.” In People v. Rehbein (1978), 74 Ill. 2d 435, 442, we noted that we made “no distinction between the defendant’s silence before or after Miranda warnings were given.” In United States v. Impson (5th Cir. 1976), 531 F.2d 274, 277, the court reasoned that failure to apply the Doyle rule in the absence of Miranda warnings would reward police for failure to give the warnings. Accord, United States v. Henderson (5th Cir. 1978), 565 F.2d 900, 905.

In determining whether the prosecutor’s comments violated the Doyle rule, we note that the Doyle court itself specified one situation in which prosecutorial comment on post-arrest silence was warranted:

“It goes almost without saying that the fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest. In that situation the fact of earlier silence would not be used to impeach the exculpatory story, but rather to challenge the defendant’s testimony as to his behavior following arrest. Cf. United States v. Fairchild, 505 F.2d 1378, 1383 (CA5 1975).” (426 U.S. 610, 619-20 n.11, 49 L. Ed. 2d 91, 98 n.11, 96 S. Ct. 2240, 2245 n.11.)

This court has previously invoked that exception in Rehbein, and a similar rationale is evident in People v. Queen (1974), 56 Ill. 2d 560. This case does not fall within that exception, however, because the purpose of the prosecutor’s remarks here was clearly to impeach defendant’s testimony that he bought the stolen goods from Walker, and not to impeach testimony regarding his post-arrest behavior.

A second type of situation exists in which this court in Rehbein held that prosecutorial reference to silence does not violate the Doyle rule. (See also United States v. Mireles (5th Cir. 1978), 570 F.2d 1287.) The factual situation in Rehbein resembled the present one in that the defendant had not remained silent but had voluntarily communicated with police. It differs from this case in that the statements then made were completely inconsistent with the facts testified to at trial. There the prosecutor’s reference to defendant’s failure to tell his exculpatory story earlier was made in the context of the manifest inconsistency between defendant’s earlier statement and his testimony at trial. The defendant in Rehbein was charged with giving a woman a ride in his car, then driving to an isolated area and sexually assaulting her. Police traced defendant by the license number that the complainant had noted on his car. When confronted by police, defendant said that the license plate belonged to a car which had long been inoperable and that he had been at home at the time of the assault. At trial defendant acknowledged that he had picked up the complainant but asserted that she had initiated the sexual contact and then asked for money. He denied making the earlier, wholly inconsistent, statements to police. During cross-examination in the midst of proper impeachment by means of prior inconsistent statements, the prosecutor asked defendant whether he had earlier told police the story he was telling at trial. This court held that in the context of proper impeachment by inconsistent statements, the prosecutor’s reference to defendant’s silence did not constitute a Doyle violation.

The court in Rehbein relied in part on United States v. Mireles (5th Cir. 1978), 570 F.2d 1287. In that case defendant was arrested while transporting a large amount of marijuana in a truck partially loaded with furniture. According to an agent’s testimony, at the time of his arrest defendant denied knowledge of the marijuana concealed in the truck and said he had borrowed the truck from his uncle to move his own furniture. At trial defendant again denied that he had known about the marijuana, but said that he had been moving furniture for Guadalupe Rivas. On cross-examination, the prosecutor asked defendant whether he had earlier told agents about Rivas, and in closing argument called attention to defendant’s failure to mention Rivas to agents. The court held that “the prosecutor’s questions and argument were not an impeachment by silence, as in Doyle, but merely an effort to impeach by prior statements that were inconsistent with defendant’s testimony at trial.” 570 F.2d 1287, 1293.

Although the situations analyzed in Rehbein and Míreles bear some resemblance to the situation here, they are not the same. The difference lies in the fact that in both Rehbein and Míreles the defendants’ prior statements to police were wholly inconsistent with their trial testimony, a difference crucial to the rationale of the decisions. Here, the inconsistency, if it exists, is not manifest. It arises, if at all, from the unarticulated reasons which prompted the question. In the State’s view, the only logical explanation for the question is that defendant asked about Meyer because Meyer had burglarized the house with defendant. That is a logical inference, and the State may and did comment upon it. But that is not the only possible reason for the question. Meyer, Walker and defendant had been acquainted before the burglary and had apparently been together on numerous occasions afterwards before defendant was arrested. Meyer testified to attempts by Walker to sell some of the items to him, and defense witnesses testified to the presence of Walker and Meyer at defendant’s residence. In these circumstances, it seems to us that defendant’s question may have been prompted by reasons other than that posited by the State, and which are not inconsistent with defendant’s trial testimony. It is this ambiguity: the absence of the direct contradiction or manifest inconsistency present in Rehbein and Míreles which precludes the additional comment by the prosecutor referring to defendant’s failure to ask about Walker. That ambiguity, the reasons for which are uncertain, is in its effect the comment upon silence forbidden by Doyle. When a defendant’s earlier and later statements are manifestly inconsistent, the prosecutor may properly impeach the defendant by means of the earlier statement, and he derives no added and prejudicial advantage from establishing that when the defendant made the first statement he failed to make the contradictory second statement. Thus this case would be controlled by Rehbein if defendant had made a statement to police denying guilt and claiming that he bought the stolen goods from Meyer. This would have been obviously inconsistent with his testimony at trial that he bought the goods from Walker.

We therefore conclude that the prosecutor’s comments on defendant’s failure to offer his exculpatory explanation at the time of his arrest were error. That error was, however, in our judgment, harmless beyond a reasonable doubt. (Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.) The court in Doyle seemed to indicate that a violation of its rule could be harmless error (426 U.S. 610, 619-20, 49 L. Ed. 2d 91, 98-99, 96 S. Ct. 2240, 2245), and the great majority of courts, both Federal and Illinois, so hold. (See, e.g., Hayton v. Egeler (6th Cir. 1977), 555 F.2d 599; Stone v. Estelle (5th Cir. 1977), 556 F.2d 1242; United States v. Davis (5th Cir. 1977), 546 F.2d 583; United States v. Wycoff (9th Cir. 1976), 545 F.2d 679; People v. Bolden (1st Dist. 1978), 59 Ill. App. 3d 441; People v. Douglas (4th Dist. 1978), 58 Ill. App. 3d 149; People v. Anderson (1st Dist. 1977), 46 Ill. App. 3d 607; People v. Sepka (1st Dist. 1977), 51 Ill. App. 3d 244.) In Davis (546 F.2d 583, 595 n.31), the United States Court of Appeals for the Fifth Circuit noted: “This court has not considered the Doyle rule as an absolute one. Thus, we apply the principle therein on a case-by-case basis ***.” We believe this to be the better view.

In this case the prosecutor’s comments to the effect that defendant’s questions revealed his knowledge of Meyer’s involvement in the burglary, indicating that the men were accomplices, were permissible comments. The prosecutor’s attempt to emphasize the inconsistency between this inference and defendant’s story at trial by pointing out that defendant had not told his story to police was error under Doyle. Nonetheless, we agree with the appellate court that the legitimate inferences the prosecutor drew “essentially duplicated the inferences he drew from defendant’s silence.” (54 Ill. App. 3d 1053, 1061.) That fact, considered with the substantial evidence of guilt, satisfies us beyond a reasonable doubt that the error did not contribute to defendant’s conviction.

Defendant also contends that the prosecutor’s comment during closing argument on the defendant’s failure to call a witness to corroborate a particular point in his testimony denied defendant a fair trial. Because the witness was not an alibi witness and there is no showing that he was not equally available to both parties, the remark was improper. (People v. Rubin (1937), 366 Ill. 195; People v. Mays (1972), 3 Ill. App. 3d 512.) Because the potential testimony was at best tangential to defendant’s defense of innocent purchase, however, we believe that the improper remark was harmless beyond a reasonable doubt. The other prosecutorial comments that defendant complains of as prejudicial are not in issue here because their propriety was waived by failure to question it at trial.

For the foregoing reasons the judgment of the appellate court is affirmed.

Judgment affirmed.