author: MR. JUSTICE CLARK MR. JUSTICE SIMON,

text:
    (No. 54085.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. FRANK LOUIS KINCAID, Appellant.

      Opinion filed November 20, 1981.

      Daniel D. Yuhas, Deputy Defender, and Janet Sinder, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield, and Basil G. Greanias, State’s Attorney, of Decatur (Melbourne A. Noel, Jr., and M. Anita Donath, Assistant Attorneys General, of Chicago), for the People.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The defendant, Frank Louis Kincaid, was charged in a two-count information with indecent liberties with a child (Ill. Rev. Stat. 1977, ch. 38, par. 11 — 4) and contributing to the sexual delinquency of a child (Ill. Rev. Stat. 1977, ch. 38, par. 11 — 5). He was convicted of indecent liberties with a child after a bench trial in the circuit court of Macon County. The second count merged into the first. The appellate court affirmed, with one justice dissenting. (87 Ill. App. 3d 552.) We allowed the defendant’s petition for leave to appeal (73 Ill. 2d R. 315).

On the night of his arrest, July 20, 1979, the defendant made an inculpatory statement to the police during questioning. At the hearing on a motion to suppress the statement, which motion was denied, and later at trial, the following facts were produced.

The defendant was arrested at approximately 7 p.m. on July 20, 1979. After signing a Miranda rights waiver form, the defendant was interviewed at approximately 8 p.m. by Detective Roy Glick of the Decatur police department. At that time the defendant denied that he had committed indecent liberties with a child. The defendant maintained he had been at work on June 12,1979, the night in question. The defendant was then placed in a cell at the Decatur city jail. He tried to speak to a police employee passing by the cell, but the employee refused to speak to him. The defendant then attempted to hang himself, using his shirt and tying one end around his neck and the other end to one of the bars in the cell. A police officer discovered the defendant choking and gagging on the floor of the cell. The officer cut the shirt with a knife. The defendant was then taken to a hospital where, after he acted in an unruly manner to the point of biting a thermometer in half, he was injected with five milligrams of Haldol, a major tranquilizer. The injection occurred at approximately 10:20 p.m. The attending physician, Dr. John Miller, released the defendant at 10:55 p.m. When he was returned to jail, the defendant was placed naked in a cell in order to prevent any further suicide attempts. Thereafter, Detective Glick told two other officers, Clifford Kretsinger and Richard Ryan, that the defendant would need to be questioned again because Detective Glick had discovered that the defendant had not been at work on the night of the alleged offense, as he had originally informed Detective Glick. Before Officers Kretsinger and Ryan questioned the defendant, he again signed a Miranda rights waiver form and initialed each paragraph on the form. The defendant’s surname in the second signature is not as legible as in the signature he wrote during the initial interrogation. Detectives Kretsinger and Ryan then questioned the defendant again.

Officer Ryan testified during the hearing on the motion to suppress that the defendant stated he knew the alleged victim’s family because they lived near his mother’s apartment. He then said that he remembered spending the night with the alleged victim during the first part of June. According to the defendant, also present that evening were his sister, Jackie, Wanda Page, defendant’s girlfriend, and defendant’s daughter. The defendant initially stated that the eight-year-old alleged victim and the three females slept together in one bedroom in the only bed in the apartment, while he slept on the couch. Later in the interview with the two officers, defendant stated that he had been seeing a psychiatrist but had stopped seeing him approximately two months before. The defendant went on to explain that the first part of what he told the officers concerning who was” present was true, but that the second bedroom had also been furnished with a bed on June 12, 1979, and that he slept in that room with the alleged victim. According to Officer Ryan, the defendant said that he had been drinking and “that he did grab [the alleged victim’s] penis and hunch him, with the front of [defendant’s] pants open.” Defendant, at that time, denied that there was ever any penetration or that defendant had had any kind of contact that evening.

Officer Kretsinger also testified at the hearing. His testimony corroborates Officer Ryan’s:

“Later in the interview he [the defendant] said that wasn’t the right sleeping arrangement. He said that the three girls did sleep in one of the bedrooms, that he and the boy slept in the other bedroom in a bed. He said that after they were in bed for a while, he said he started hunching on the boy. He was asked to explain this in a little more detail. He said that his pants were on but open from the waist to crouch [sic]. He said that he did reach over and reached inside the boy’s pants and touched the boy’s penis. He said that the boy’s pants did remain on. He said that later he rolled over on top of the boy and began a hunching motion, this lasted for a few minutes and then he realized what he was doing was wrong, so he got off and apologized to the boy. Then he, Mr. Kincaid, left the room, went to the living room and slept on the couch.
Q. During the first part of the interview did he deny to you any sexual contact with the boy?
A. Yes.
Q. Then later he changed his story and admitted it?
A. That’s correct.
Q. During the interview was Mr. Kincaid sleepy or drowsy or nodding off?
A. No.
Q. Did he appear abnormal to you in any way?
A. No.
Q. At any time did he vomit or regurgitate or complain of an upset stomach?
A. No.”

The defendant testified at the hearing on the motion to suppress that prior to his arrest on July 20, 1979, he took 15 erythromycin capsules to relieve a bronchitis condition.

The defendant also testified that prior to receiving the Haldol injection he was depressed and angry. Afterward, he felt as though he were “high” and sleepy. He said he was unable to remember giving any statement to the police and, though he did not question that it was his signature on the rights-waiver form, he did not remember signing the form.

Dr. John Miller testified on direct examination at the hearing that the only side effect consumption of 15 erythromycin pills would cause would be an upset stomach. Dr. Miller also testified that Haldol is a major tranquilizer designed to reduce anger by blocking adrenalin. Dr. Miller also said that Haldol would improve a person’s ability to think because it would tend to calm a person and help a person to think and act more rationally. Dr. Miller also stated that the maximum effect of the drug could be expected to occur between one and six hours after injection. The defendant made the statement herein approximately one hour and 50 minutes after injection.

During cross-examination by defense counsel, Dr. Miller read from the Physician’s Desk Reference some of the adverse reactions associated with Haldol, which is also identified by the generic name of holoperidol. These in-elude: “insomnia, restlessness, anxiety, euphoria, agitation, drowsiness, depression, lethargy, headaches, confusion, vertigo, grand mal seizures and cardiovascular effects to the tachycardia, and low blood pressure.”

The trial court denied the motion to suppress, stating:

“The question arises only as to this matter of Dr. Miller giving him a tranquilizer at the hospital earlier in order to restrain him. The evidence as I see it is undisputed that the interview in question, the defendant was still able to resist involvement, he was still able to set up defenses, still aware of the charges, still aware of how to avoid and minimizes [sic] the allegations. I do not think he was reduced to one without will, without knowledge, without decision.”

When the State sought to elicit defendant’s statement during direct examination of Officers Kretsinger and Ryan, during the trial, the defendant objected. The trial court overruled the objection, and the officers testified in virtually the same manner as at the hearing. The only additional pertinent testimony was that Officer Ryan testified that he and Officer Kretsinger were aware the defendant had had “some kind of problems. I don’t know that we were specifically told he had a significantly tranquilizing dosage or not.” Officer Kretsinger testified he probably would not have interviewed the defendant if he had known he had been given a tranquilizer because he would have been unable to rely on any statement made.

The defendant was convicted on one count of indecent liberties with a child. He was sentenced to five years in prison.

The issue thus presented is whether the trial court properly denied the motion to suppress defendant’s statement. The key inquiry concerning the motion to suppress the statement was whether defendant’s statement was voluntary. The State bears a heavy burden of establishing that a statement was knowingly, intelligently and voluntarily made. (Miranda v. Arizona (1966), 384 U.S. 436, 475, 16 L. Ed. 2d 694, 724, 86 S. Ct. 1602, 1628; People v. Brownell (1980), 79 Ill. 2d 508, 516-17.) The truthfulness or reliability of a confession is irrelevant in determining whether it was voluntarily made. (Jackson v. Denno (1964), 378 U.S. 368, 382, 12 L. Ed. 2d 908, 918, 84 S. Ct. 1774, 1783.) The test to determine whether a confession is voluntary is whether the accused’s will was overborne at the time he confessed. (Townsend v. Sain (1963), 372 U.S. 293, 307, 9 L. Ed. 2d 770, 782, 83 S. Ct. 745, 754; Reck v. Pate (1961), 367 U.S. 433, 440, 6 L. Ed. 2d 948, 953, 81 S. Ct. 1541, 1546.) If so, the confession cannot be deemed the product of a rational intellect and a free will (Blackburn v. Alabama (1960), 361 U.S. 199, 208, 4 L. Ed. 2d 242, 249, 80 S. Ct. 274, 280-81.) A confession which is, in fact, induced by the administration of a drug, whether the drug is self-administered or otherwise, is involuntary and thus is inadmissible into evidence. (Townsend v. Sain (1963), 372 U.S. 293, 307-09, 9 L. Ed. 2d 770, 782-83, 83 S. Ct. 745, 754-55.) A confession obtained in this manner lowers the ability of the accused to resist suggestions, subtle threats, or promises by interrogators. Its practical effect is to overcome the will of the accused. A confession obtained under such circumstances is violative of the due process clause of the fourteenth amendment to the Federal Constitution. The dominant principle underlying the doctrine is that “<s * 0 the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.’” (Blackburn v. Alabama (1960), 361 U.S. 199, 207, 4 L. Ed. 2d 242, 248, 80 S. Ct. 274, 280, quoting, Spano v. New York (1959), 360 U.S. 315, 320-21, 3 L. Ed. 2d 1265, 1270, 79 S. Ct. 1201, 1205-06.) Whether a confession obtained after a drug has been administered to an accused is voluntary is a question for the trial court to decide upon a motion to suppress the statement. If a trial court finds, as here, that a confession is voluntary, and as long as the proper legal standard was applied, then, on review, our inquiry is limited to whether that finding is contrary to the manifest weight of the evidence. People v. Brownell (1980), 79 Ill. 2d 508, 521; People v. Aldridge (1980), 79 Ill. 2d 87, 93.

In Townsend v. Sain (1963), 372 U.S. 293, 9 L. Ed. 2d 770, 83 S. Ct. 745, the Supreme Court of the United States reversed a decision by this court in which, after the accused had repeatedly been injected with a combined dosage of phenobarbital and scopolamine, commonly known as “truth serum,” he made confessions, first to the police and State’s Attorney and, later, while testifying at a coroner’s inquest. The cause reached the Supreme Court on a habeas corpus petition filed in Federal district court. The Supreme Court concluded that there was error when, in denying the defendant’s motion to suppress prior to trial, the trial judge offered “no indicia which would indicate whether the trial judge applied the proper standard of federal law in ruling upon the admissibility of the confession.” Moreover the court stated that this court’s opinion “rendered at the time of direct appeal contains statements which might indicate that the court thought the confession was admissible if it satisfied the ‘coherency’ standard. Under that test the confession would be admissible ‘[s]o long as the accused [was] * “ * capable of making a narrative of past events or of stating his own participation in the crime . . . .’ 11 Ill. 2d, at 43, 141 N.E.2d, at 736. As we have indicated in Part I of this opinion, this test is not the proper one. Possibly the state trial judge believed that the admissibility of allegedly drug-induced confessions was to be judged by the ‘coherency’ standard. However, even if this possibility could be eliminated, and it could be ascertained that correct standards of law were applied, it is still unclear whether the state trial judge would have excluded Townsend’s confession as involuntary if he had believed the evidence which Townsend presented at the motion to suppress. The problem which the trial judge faced was novel and by no means without difficulty. We believe that the Federal District Court could not conclude that the state trial judge admitted the confession because he disbelieved the evidence which would show that it was involuntary. We believe that the findings of fact of the state trier could not be successfully reconstructed. We hold that, for this reason, an evidentiary hearing was compelled.” (372 U.S. 293, 320-21, 9 L. Ed. 2d 770, 790, 83 S. Ct. 745, 761.) Further the court considered it to be crucial that during the initial hearing on the motion to suppress, the “indispensable” fact was not revealed that scopolamine, also known as hyoscine, is often characterized as a “truth serum.” 372 U.S. 293, 321-22, 9 L. Ed. 2d 770, 790-91, 83 S. Ct. 745, 761-62.

It should be noted that in both Townsend and in a majority of jurisdictions which have considered the issue (see Annot., 69 A.L.R.2d 384 (1960), and later case service), the fact that an accused is under the influence of drugs, self-administered or otherwise, when he makes a confession does not make the confession inadmissible automatically. It is still the province of the trial court to ascertain whether the accused’s will was overborne at the time the confession was made.

In the instant case, it is clear the trial judge applied the proper standard for determining the voluntariness of a confession. At the conclusion of the hearing on the motion to suppress, the judge stated: “I do not think he [the defendant] was reduced to one without will, without knowledge, without decision.” Moreover, the evidence supports the trial judge’s decision and the reason he gave for it. The medical testimony of Dr. Miller established that a person who has consumed 15 capsules of erythromycin will suffer, at worst, an upset stomach. The police officer testified that the defendant at no time complained of, or showed any sign of, suffering from an upset stomach. Also, Dr. Miller testified that while Haldol may cause many side effects, such as confusion, depression, anxiety, or lethargy, the drug may also act to cause an unruly person to calm down, and to act rationally. Additionally, it seems extremely unlikely that, had the defendant’s will been overborne, he would have been able, first, to deny any wrongdoing with the alleged victim, then to admit, in a very limited way, any wrongdoing, and, finally, to insist that once he realized the impropriety of his act, he got up, apologized to the boy, and left the room for the remainder of the night. It is clear that during the time he was making the statement the defendant was attempting to limit its incriminating effect. It is unlikely that a person whose will was overborne would be unable to resist confessing, yet at the same time attempt to mitigate the effect of a confession. Thus, the tenor of defendant’s statement is inconsistent with that of one whose will is overborne. While evidence such as the defendant’s less legible second signature and the defendant’s testimony that he could not remember making a confession support the defendant’s assertion that the confession was involuntary, the weight to be accorded to such evidence is, in the first instance, for the trial court to decide. We do not think that such evidence outweighs the evidence indicating that the defendant’s will was not overborne. Thus, in viewing, as we must, all the evidence surrounding the making of the confession (Reck v. Pate (1961), 367 U.S. 433, 440, 6 L. Ed. 2d 948, 953, 81 S. Ct. 1541, 1546), we conclude that the trial court’s decision that the confession was "voluntary is not against the manifest weight of the evidence. The trial court did not err when it denied the motion to suppress.

The defendant also contends that the trial court erred when it allowed the State to amend count I of the information charging indecent liberties with a child -to add the element that the alleged victim was under 16 years of age. The information charged that the defendant “committed the offense of INDECENT LIBERTIES WITH A CHILD,. (CLASS I FELONY), in violation of Chapter 38, Section 11 — 4 of the Ill. Rev. Stat., 1977, as amended, in that the said defendant being a person of the age of 17 years and upwards, performed a lewd fondling or touching of [here they named the alleged victim] with the intent to arouse or satisfy the sexual desires of the defendant 00<s.”

Immediately prior to trial the State moved to amend the information to state that the alleged victim was “a child under the age of sixteen years.” The following colloquy occurred:

“THE COURT: Motion by the People for leave to file amended Count I. Is it amended Count I? Yes.
[DEFENSE COUNSEL]: Objection by the defendant.
THE COURT: Do you want to put anything on the record?
[DEFENSE COUNSEL]: My objection is that the charge as it originally was presented to the Court we [were] prepared to go to trial. And I object to their adding a material element of the offense on the date of trial. I don’t think it is— gives us time to prepare. I don’t think it is proper to add something on the date of the trial.
THE COURT: Show the objection. Overruled. Leave granted. Amended information on file. If you want additional time within which to prepare you will get it.
[DEFENSE COUNSEL]: I will go ahead.”

The State argues that “the People do not deny that the age of the victim is an essential element of the charge but deny that the understatement of the victim’s identity is a fundamental defect” and, therefore, the amendment was to cure a formal defect as allowed under section 111 — 5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. Ill — 5). We find this to be a circuitous argument without substance or merit. The age of the victim is an essential element of the crime charged and, as such, must be alleged and proved; otherwise, the judgment rendered under such information would be void. People v. Heard (1970), 47 Ill. 2d 501, 505.

Alternatively, the State contends that the standard for review is the rule announced in People v. Pujoue (1975), 61 Ill. 2d 335, and that it should be followed. That rule, however, is applicable only in those instances where the defendant raises the error for the first time on review. Here the defendant raised his objection to the amendment at the trial level, and therefore the rule is inapplicable. See People v. Lutz (1978), 73 Ill. 2d 204, and People v. Strait (1978), 72 Ill. 2d 503.

Section 111 — 5 of the Code of Criminal Procedure of 1963 provides:

“Formal Defects in a Charge. An indictment, information or complaint which charges the commission of an offense in accordance with Section 111 — 3 of this Code shall not be dismissed and may be amended on motion by the State’s Attorney or defendant at any time because of formal defects, including:
(a) Any miswriting, misspelling or grammatical error;
(b) Any misjoinder of the parties defendant;
(c) Any misjoinder of the offense charged;
(d) The presence of any unnecessary allegation;
(e) The failure to negative any exception, any excuse or provision contained in the statute defining the offense;
or
(f) The use of alternative or disjunctive allegations as to the acts, means, intents or results charged.” (Ill. Rev. Stat. 1977, ch. 38, par. Ill — 5.)

It is defendant’s position that defects allowed to be corrected under this section are limited to formal rather than fundamental defects; that here the amendment corrected a fundamental defect; and, therefore, under People v. Heard (1970), 47 Ill. 2d 501, 505, the original information was void and not subject to amendment under the section. We disagree.

Defendant’s reliance on Heard is misplaced. There the defendant was tried and convicted under a charge found to be void in that the complaint failed to set forth the offense “with the specificity required under the United States and Illinois constitutions and under our Code of Criminal Procedure.” (47 Ill. 2d 501, 504.) Here, prior to trial and conviction, the amended information contained all of the necessary allegations of the offense charged.

The issue to be resolved is whether an information can be amended prior to trial to include the essential elements of the offense charged.

Section 111 — 5 is drawn in mandatory language; i.e., a list of examples as to when a charge shall not be dismissed but may be amended. It should be noted that the list is not intended to be exclusive. (People v. Jones (1973), 53 Ill. 2d 460, 462.) Conversely, the section fails to list when a charge may not be amended. Our research has not revealed any other statute which would abrogate the common law right of the State to amend its information.

At common law, the State was permitted to amend informations. (People v. Fensky (1921), 297 Ill. 440, 442.) Over a century ago this court addressed the issue when, quoting from Lord Mansfield, it stated:

“ ‘There is a great difference between amending indictments and amending informations. Indictments are found upon the oaths of a jury, and ought only to be amended by themselves; but informations are as declarations in the King’s suit. An officer of the Crown has the right of framing them originally, and may, with leave, amend in like manner as any plaintiff may do. If the amendment can give occasion to a new defense, the defendant has leave to change his plea; if it can make no alteration as to the defense, he does not want it.’” (Emphasis in original.) (Truitt v. People (1878), 88 Ill. 518, 520.)

(See also Long v. People (1890), 135 Ill. 435, 441.) What was said in 1878 is valid today.

Under the liberalization of criminal pleadings, we have retained certain of the common law basic principles under the present code of criminal procedure. All felonies shall be commenced by information or indictment, and no prosecution by information may proceed unless a preliminary hearing has been held or waived. (Ill. Rev. Stat. 1977, ch. 38, par. Ill — 2.) Further, an indictment is to be signed by the foreman of the grand jury; an information is to be signed by the State’s Attorney and sworn to by him or another. Ill. Rev. Stat. 1977, ch. 38, par. Ill — 3.

With reference to amending of indictments, a unanimous Supreme Court in Stirone v. United States (1960), 361 U.S. 212, 215-17, 4 L. Ed. 2d 252, 256, 80 S. Ct. 270, 272-73, stated: “Ever since Ex parte Bain [(1887), 121 U.S. 1, 30 L. Ed. 849, 7 S. Ct. 781] was decided in 1887 it has been the rule that after an indictment has been returned its charges may not be broadened through amendment except by the grand jury itself.” In Bain the court said that “[a]ny other doctrine would place the rights of the citizen, which were intended to be protected by the constitutional provision, at the mercy or control of the court or prosecuting attorney.” (121 U.S. 1, 13, 30 L. Ed. 849, 853, 7 S. Ct. 781, 787-88.) This conforms with the statutory provision that an indictment “shall be signed by the foreman of the Grand Jury” (Ill. Rev. Stat. 1977, ch. 38, par. Ill — 3) and, therefore, impliedly requires that any amendment to an indictment must originate with the grand jury.

On the other hand an information originates with the State’s Attorney. As a practical matter, under present procedure, the State could accomplish results similar to amendment. The State’s Attorney has a right, with leave of court under certain conditions, to dismiss any charge, including a faulty information. Then, at the time of dismissal, he may file, in open court, a new complaint which would include any missing essential elements not alleged in the original information. By doing so, the complaint would constitute a new case and the criminal process would commence anew. Defendant would immediately be taken into custody, a new appearance bond would be set, and a preliminary hearing would be scheduled followed by a new information being filed. Generally speaking, defendants’ rights would not be prejudiced by this type of action; however, the necessity for such procedure results in an expensive and inefficient method in attaining a result that could be accomplished more directly were the State’s Attorney allowed to amend his information. In addition, the obvious disadvantages incurred by the defendant, as set out above, would be eliminated.

A better procedure would be to allow the State’s Attorney to amend an information to include essential elements of the crime charged only when such amendment is made before trial, a prompt preliminary hearing is held to determine probable cause, and the defendant is allowed to plead anew and is afforded a reasonable time to further prepare his defense, which time shall be attributable to the State for the computation of time under section 103 — 5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 103 — 5). The date of such an amendment would be considered as the commencement of the original charge for the purposes of sections 3 — 5 through 3 — 8 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, pars. 3 — 5 through 3 — 8). The trial court could also impose additional conditions that are necessary to insure the protection of the defendant’s rights.

In summation, as applicable to the instant case, we find that the State, under the common law, had a right to amend count I of the information, that this was accomplished prior to trial, that there had already been a prompt preliminary hearing to determine probable cause, at which hearing the age of the victim was indicated (making it unnecessary to again hold a preliminary hearing following the filing of the amended information), and that the court offered the defendant “additional time within which to prepare” but the offer was refused. •

Our review of the record discloses that the amendment to the information and the commencement of trial upon the amendment were both accomplished within the time rer quired by sections 3 — 5 through 3 — 8 of the Criminal Code of 1961 and section 103 — 5 of the Code of Criminal Procedure of 1963.

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

Judgment affirmed.

MR. JUSTICE SIMON,

dissenting:

I believe that this case was correctly appraised in the appellate court dissent of Justice Craven: “Although the record might support the finding that the defendant’s confession was the product of a rational intellect, the record does not support a finding that the defendant’s confession was a product of a free will.” (87 Ill. App. 3d 552, 559.) The majority here has committed the same error as the trial court. It confuses the product of a rational mind with the product of a free will and consequently has applied an improper test of voluntariness. The confession, correctly viewed, was not voluntarily given and therefore fundamental due process required that it be suppressed.

It has long been settled that an involuntary confession is inadmissible. (For the common law antecedents of the constitutional rule, see Bram v. United States (1897), 168 U.S. 532, 42 L. Ed. 568, 18 S. Ct. 183.) The fifth amendment’s ban on compelling defendants to be witnesses against themselves has been viewed as embracing all forms of compulsion, both physical and mental. Because the courts realized that the ingenuity of zealous interrogators would usually outstrip judicial formulations of the coercive devices that were banned, the focus in determining if confessions were voluntarily obtained was shifted from the tools that produced the confessions to the effects defendants’ circumstances had on their minds. (Bram v. United States (1897), 168 U.S. 532, 548, 42 L. Ed. 568, 575, 18 S. Ct. 183, 189.) Thus, the court was asked to determine if the confession was made freely, voluntarily, and without inducement of any sort. Wilson v. United States (1896), 162 U.S. 613, 623, 40 L. Ed. 1090, 1096, 16 S. Ct. 895, 899.

Similar tests have been formulated under the fourteenth amendment’s guarantee of due process. (Brown v. Mississippi (1936), 297 U.S. 278, 285, 80 L. Ed. 682, 687, 56 S. Ct. 461, 465 (“Because a State may dispense with a jury trial, it does not follow that it may substitute trial by ordeal”).) The question is whether the defendant’s confession was voluntary; there is no per se rule, but instead a case-by-case analysis of the totality of the circumstances is employed, and the truth or falsity of the confession cannot influence that determination. (Jackson v. Denno (1964), 378 U.S. 368, 377, 12 L. Ed. 2d 908, 916, 84 S. Ct. 1774, 1781.) A voluntary confession must be the product of a free and rational choice (Mincey v. Arizona (1978), 437 U.S. 385, 401, 57 L. Ed. 2d 290, 306, 98 S. Ct. 2408, 2418; Greenwald v. Wisconsin (1968), 390 U.S. 519, 20 L. Ed. 2d 77, 88 S. Ct. 1152); put another way, it must be the product of a rational intellect and a free will (Blackburn v. Alabama (1960), 361 U.S. 199, 208, 4 L. Ed. 2d 242, 249, 80 S. Ct. 274, 280-81).

The distinction between an intellect that is rational and a will that is free must not be blurred. It is possible to have one without the other, but both are necessary for a statement to be voluntary. For example, one operating under insane delusions, as in Blackburn v. Alabama, may freely choose, without any external compulsion, to confess participation in a crime in great detail. The defendant may seem to give “sensible” answers to questioning. But the mental disease afflicting the defendant robs the defendant of any rational choice. Although there is volition, it cannot be said that there is any “meaningful volition.” Thus, the confession must be suppressed. (Blackburn v. Alabama (1960), 361 U.S. 199, 211, 4 L. Ed. 2d 242, 250, 80 S. Ct. 274, 282.) On the other hand, a defendant being tortured on the rack or under more modern third-degree methods may be perfectly rational, concise and consistent in confessing. It is even readily believable that a defendant would try to hedge a confession under such pressures, in order to say as little damning as possible while avoiding harsher physical or psychological pain. (See e.g., Mincey v. Arizona (1978), 437 U.S. 385, 57 L. Ed. 2d 290, 98 S. Ct. 2408.) But a rational confession of that type lacks free will. It too must be suppressed.

With this understanding of what is voluntary, I turn to the circumstances of this case — a confession obtained while the defendant was in police custody, stripped naked and under the influence of the mood-altering drug Haldol. Unlike the experience in some other countries, our police do not normally receive confessions induced by involuntarily administered drugs, and so the case law governing the admissibility of such confessions is meager. In People v. Heirens (1954), 4 Ill. 2d 131, 141, this court expressed its belief that a confession induced by the unauthorized use of sodium pentothal was a flagrant violation of defendants’ rights and any conviction obtained from such a confession could not stand. In People v. Muniz (1964), 31 Ill. 2d 130, 138, there was no evidence to support the defendant’s claim that materials he had swallowed would tend to affect his confession. In People v. Townsend (1957), 11 Ill. 2d 30, 37, a divided court held that a confession obtained after the defendant was injected with hyoscine (which the majority opinion in this case notes is also known as scopolamine and often characterized as a truth serum) could be admitted at trial because the confession was so coherent that the defendant’s “performance in making it was incompatible with a mind devoid of discernment or of a will of its own.” The court analogized to confessions obtained while the defendant was intoxicated, which are admissible if the defendant “is capable of making a narrative of past events or of stating his own participation in the crime.” 11 Ill. 2d 30, 43.

The Townsend analysis was faulty in two respects. First, the diminished capacity of one who brings on his own drunken condition does not render acts involuntary. (See Ill. Rev. Stat. 1979, ch. 38, par. 6 — 3.) This should be contrasted with the defendant who is drugged by police without consent. As Mr. Justice Schaefer noted in dissenting in Townsend, none of the cases the majority relied upon in that case involved intoxication induced by the police. (11 Ill. 2d 30, 49.) Second, the “coherence” test for voluntariness addresses only the question of whether the defendant was operating rationally. It does nothing to assure that the confession was the product of a free will.

Townsend was reversed in Townsend v. Sain (1963), 372 U.S. 293, 9 L. Ed. 2d 770, 83 S. Ct. 745. The court focused on the medical effects of the drugs given to the defendant, noting that they would pacify and quiet him. The court rejected the “coherence” test and said that it was difficult to imagine a situation in which a confession was less the product of a free intellect, less voluntary, than when the defendant was given a truth serum whose general property was to debilitate the defendant’s power of resistance. 372 U.S. 293, 307-08, 322, 9 L. Ed. 2d 770, 782, 791, 83 S. Ct. 745, 754.

A scopolomine injection was also examined in Jackson v. Denno (1964), 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774, but there the court remanded the case for a determination of whether the drugs administered to the defendant had had a chance to take effect. In Beecher v. Alabama (1967), 389 U.S. 35, 19 L. Ed. 2d 35, 88 S. Ct. 189; (1972), 408 U.S. 234, 33 L. Ed. 2d 317, 92 S. Ct. 2282, the court suppressed two confessions obtained after the defendant, who had been seriously wounded in a gunfight with police and then threatened with immediate execution if he did not talk, was given morphine in the hospital. The drug took the pain away and relaxed the defendant, who said it made him want to love somebody. The court said that the circumstances made it clear the confessions were not voluntary. See also, e.g., State v. Allies (1979),_Mont--, 606 P.2d 1043 (confession induced by sodium amytal held involuntary); State v. Linn (1969), 93 Idaho 430, 462 P.2d 729 (exculpatory statement induced by sodium amytal held inadmissible because unreliable); State v. Jones (1954), 73 Wyo. 122, 276 P.2d 445 (confession held involuntary after Demerol was given to calm the hysterical defendant); Edwardson v. State (1951), 225 Ala. 246, 51 So. 2d 233 (confession obtained after narcotics administered to kill pain held involuntary); State v. Graffam (1943), 202 La. 869, 13 So. 2d 249 (confession obtained after morphine administered to kill pain held involuntary).

From these drug-induced confession cases has come the principle that the defendant’s will may not be overborne by the effects of injected drugs at the time of the confession. (Townsend v. Sain (1963), 372 U.S. 293, 307, 9 L. Ed. 2d 770, 782, 83 S. Ct. 745, 754.) A review of the effects of the drug Haldol in general and the circumstances of this defendant before and after the injection reveals that this was precisely what happened to Kincaid. Haldol is a mood-altering drug which blocks the body’s first line of hormonal defense by neutralizing the adrenalin released into the blood stream at times of physical or emotional stress. It calms people, allowing them to act more rationally. It is clear that, without the Haldol injection, Kincaid was in no mood to act rationally or cooperate with police. Kincaid denied involvement in the crime when interrogated after his arrest; then, when left alone in his cell, his patience was exhausted and he tried to hang himself. Taken to a hospital, he was angry, upset and extremely uncooperative. The treating physician said he gave Kincaid an injection of 5 milligrams of Haldol at 10:20 p.m. “because of his extreme anger and restlessness in an attempt to reduce some of his angry feelings so that he could be dealt with more easily.” Kincaid was returned to his cell and stripped naked.

After the injection, Kincaid appeared calmer and quieter to those who had seen him before. The police officer in charge of the prisoner said that Kincaid was more cooperative. Almost 2 hours after the injection, at 12:09 in the morning, when the effect of the drug was at its maximum, Kincaid was again interrogated. He signed a waiver of rights form, but his signature had become almost illegible. At this time Kincaid made his confession. Kincaid’s later recollection of his arrest and questioning was limited. He remembered waking and being taken to the hospital. He was depressed and angry there, but after the injection his mood switched; he felt sleepy and high. Kincaid did not recall talking to police officers after his return to the jail.

Considering merely the effect of the Haldol on the admissibility of the confession, I believe the confession must be suppressed. Unlike Jackson v. Denno, the injection was given plenty of time to take effect. Before the injection Kincaid not only denied his involvement, he sought, through suicide, eternal refuge from any further discussion of his conduct. After the injection, cooperation was pharmacologically forced upon him, as in Beecher v. Alabama, to the point where he was made “the deluded instrument of his own conviction.” That the law of this land and its antecedent has never allowed. (Bram v. United States (1897), 168 U.S. 532, 547, 42 L. Ed. 568, 575, 18 S. Ct. 183, 188, citing 2 Hawkins’ Pleas of the Crown, ch. 46, § 3, n.2 (Leach 6th ed. 1787).) It is ironic that one of the interrogating officers realized what the majority apparently does not accept — that the effect of the drug on Kincaid stripped the confession of all reliability. The officer said that he would not have questioned Kincaid if he had known about the effect of the drug. This testimony exonerates the officer from any intentional wrongdoing, but does nothing to render Kincaid’s statement voluntary.

My belief that this confession was not voluntary hardens into certainty when the other circumstances of Kincaid’s treatment are considered. First, Kincaid was in jail, isolated in a hostile environment. Compulsion is inherent in custodial situations. (Beckwith v. United States (1976), 425 U.S. 341, 346, 48 L. Ed. 2d 1, 7, 96 S. Ct. 1612, 1616; Miranda v. Arizona (1966), 384 U.S. 436, 458, 16 L. Ed. 2d 694, 714, 86 S. Ct. 1602, 1619.) Second, he was stripped naked. Without even going into the physical discomfort inherent in being in a jail cell naked, the humiliation of facing interrogators in that condition was itself psychological compulsion directed at Kincaid. It should be noted that in Bram the court emphasized, in finding the defendant’s statements to the police involuntary, that he was interrogated after being stripped naked. (Bram v. United States (1897), 168 U.S. 532, 561, 42 L. Ed. 568, 580, 18 S. Ct. 183, 194.) “Subtle pressures [citations] may be as telling as coarse and vulgar ones.” (Garrity v. New Jersey (1967), 385 U.S. 493, 496, 17 L. Ed. 2d 562, 565, 87 S. Ct. 616, 618.) Finally, Kincaid’s deteriorated signature indicated that the entire course of events had a physical effect upon him which cannot be overlooked. In People v. O’Leary (1970), 45 Ill. 2d 122, 125, the court said that where the defendant because of his obstreperous behavior was tear gassed in his cell, he had brought it on himself. Nevertheless, the court could not escape the conclusion that a confession, only half an hour after the gassing, was involuntary. (45 Ill. 2d 122, 126.) The police and medical procedures here may have been reasonable responses to Kincaid’s attempted self-destruction, but they rendered his confession involuntary and inadmissible. The finding that the confession was voluntary was against the manifest weight of the evidence.

Despite lip service to the proper rule of law, the trial court and the majority have resurrected the Townsend coherence test to determine voluntariness, stating that it seems unlikely that had the defendant’s will been overborne he would have been able to limit the incriminating effect of his statement. (87 Ill. 2d at 119-20.) Far from unlikely, this effect was in keeping with the medical testimony about Haldol’s effects. It enhanced rationality but enervated anger and resistance like the scopolomine in Townsend. It proves nothing to discuss the defendant’s attempts to dodge the tenor of the interrogators’ questions; the real question is whether Kincaid wanted to talk to the interrogators at all. His conduct before the injection was clearly uncooperative; it therefore strains credulity to find that his new-found cooperation within such a short time after the injection was merely a coincidence.

This is not a case involving the well-known “truth serum” sodium pentothal, and to look for that drug’s effects here is to blind oneself to the facts of this case. Sodium pentothal attacks both free will and rational intellect; it renders the subject unable to critically survey responses or to associate, select or inhibit the subject’s remarks. (People v. Heirens (1954), 4 Ill. 2d 131, 135.) The effect of Haldol is more subtle; it attacks only the free will, altering the defendant’s mood from a natural state of anger and obstinacy to one of calmness and cooperation. A subject so pacified is undoubtedly more malleable in the hands of questioners, and the use of this drug is at least as efficient a way to break a suspect’s spirit as the thumbscrew or rack. Nevertheless, efficiency in law enforcement is no substitute for constitutionality. Our fundamental law forbids the use of involuntary confessions, and that fundamental law was violated here.

The behavior in question is too dangerous and too reminiscent of the type of interrogation we abhor in repressive institutions to rationalize or tolerate it in any way. In my view the conviction must be reversed, the defendant’s drug-induced, involuntary statements suppressed, and the case returned to the circuit court for a new trial. I respectfully dissent.


source: Caselaw Access Project

author: MR. JUSTICE MORAN

license: Public Domain

text:
    (Nos. 53993, 53996 cons.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. CHARLES TATE, Appellant.

      Opinion filed November 20, 1981.

      Robert Agostinelli and Michael Filipovic, of the Office of the State Appellate Defender, of Ottawa, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield, and L. Patrick Power, State’s Attorney of Kankakee (Melbourne A. Noel, Jr., Thomas E. Holum, and Neal B. Good-friend, Assistant Attorneys General, of Chicago, and John X. Breslin and Gary F. Gnidovec, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
   MR. JUSTICE MORAN

delivered the opinion of the court:

Defendant, Charles Tate, was convicted of robbery, aggravated assault, attempted theft, and criminal damage to property following a jury trial in the circuit court of Kankakee County. The appellate court affirmed the first three convictions, but reversed the conviction for criminal damage to property. 87 Ill. App. 3d 21.

Defendant raises three issues: (1) whether the State violated defendant’s right of due process and Supreme Court Rule 412 (73 Ill. 2d R. 412) by its failure to inform defendant that a defense witness, James Brown, had committed a crime similar to that with which defendant was charged, (2) whether defendant was deprived of a fair trial by the trial court’s ruling that James Brown’s out-of-court admission was inadmissible for substantive purposes, and (3) whether the trial court erred in preventing defendant from impeaching James Brown’s credibility with evidence of prior convictions for robbery and theft. The State cross-appeals the reversal of the criminal-damage-to-property conviction, contending that it established that property damaged by defendant was that of another as required by section 21 — 1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 21 — 1(a)).

On December 12, 1977, at about 10:30 p.m., a man and woman entered a Convenient Food Mart in Kankakee. The man walked to the meat counter and, through the store’s curved mirror, was observed putting items in his coat by the store’s security guard, Michael Maycen. Maycen told one of the two cashiers present to lock the front door. He then confronted the man, told him he was under arrest, whereupon the man turned and started heading back toward the meat counter. Maycen grabbed the man and began to frisk him. The man then pulled a package of sausages from his coat and dropped it. A struggle ensued, during which the man grabbed Maycen’s gun. The man went to the front of the store and, after aiming the gun at the cashiers, shot at the door, attempting to break the lock. When that attempt proved unsuccessful, the man ran to the rear of the store and fled through a back door. The woman with whom the defendant entered was arrested and later released. At trial, these events were testified to by the security guard and the two cashiers who were present at the time of the incident. All three identified the defendant as the man who committed the offense.

The defendant testified that, at 10:30 p.m. on the date of the offense, he was at the apartment of a friend, Earl White, and that he left at about 10:45 to pick up White’s girlfriend, Nancy Fifer, from work. He stated that he picked her up at 11:02. They then picked up Nancy Fifer’s daughter from a baby sitter and returned to White’s apartment.

Earl White testified on behalf of defendant that, at about 8:30 p.m., he and defendant picked up some clothes at a friend’s house and they returned to White’s apartment at 550 North 9th Street. They remained there until 10:40 or 10:45 p.m., when, according to White, the defendant left alone to pick up Nancy Fifer. White stated that they returned about 11:15 or 11:20 p.m. On crossexamination, White testified that on December 13, 1977, he gave a statement to an Officer Whitehead, wherein he stated that on the previous day he was playing poker with defendant at 1041 East Birch Avenue; that they left to go to a friend’s house at about 10:30 or 10:35 p.m., drove by the Convenient Mart and saw the police there. He also stated that he and defendant were going to the Kankakee State Hospital to pick up Nancy Fifer.

Nancy Fifer, called by defendant, testified that on December 12, 1977, defendant was to pick her up from work at 11:15 and that she saw him parked outside at 10:45. She stated that he was alone. On cross-examination, Fifer testified that on February 16, 1978, she signed a statement indicating that while at work on December 12, 1977, she looked out the window at 10:55 p.m. and observed both defendant and White sitting in her car. She also stated on cross-examination that White could have been in the car but she was unsure.

It was defendant’s theory that a James Brown committed the offense. To establish this theory, Jimmie Sanders Brown, a close friend of defendant, testified that he had a conversation with James Brown regarding the robbery at the Convenient Food Mart. The State objected, based upon hearsay, at which time defense counsel made an offer of proof outside the presence of the jury. During this offer, Jimmie Sanders Brown testified that he asked James Brown about defendant’s being in jail for the incident at the Convenient Food Mart. The witness stated that James Brown responded, “Well, Charles didn’t do that. I was in on that.” Defense counsel argued that the statement was admissible as substantive evidence in that it was an admission against penal interest. The trial court sustained the State’s objection to this as substantive evidence, but subsequently allowed it to be used for impeachment purposes.

James Brown was called as a witness by defendant and denied making the above comment and also denied making any admissions concerning the commission of the offense. At the defense counsel’s request, Brown was declared a hostile witness and was cross-examined. The trial court sustained the State’s objection to defense counsel’s attempt to impeach Brown by introduction of prior convictions of robbery and retail theft. Following James Brown’s testimony, Jimmie Sanders Brown was recalled to the stand by defendant and allowed to testify as to James Brown’s prior declaration for impeachment purposes.

Annette Jackson testified for the defense. She stated that on the evening of the incident, Lori Ann Fulton told her she was going to the Convenient Foot Mart with James Brown. Lori Ann Fulton testified that she lived with her boyfriend, James Brown, and her mother and that she was in the store when it was robbed. She denied being with James Brown when the offense was committed and denied telling Annette Jackson that she was going to the store with James Brown.

F olio wing the trial, the jury found the defendant guilty of all four counts.

The first issue raised by defendant on appeal concerns the State’s receipt of an arrest report for a subsequent offense committed on March 14, 1978, by James Brown. The prosecutor received this arrest report after the State had presented its case, but did not inform defense counsel of its contents until after final argument to the jury. The report revealed that Brown had tried to steal five packages of smoked ham and one package of Polish sausage. A police officer who was called to the scene followed Brown out the door. Brown threw the meat to the ground and ran. The officer tackled Brown, and during the ensuing struggle, Brown tried to grab the officer’s gun.

Defendant contends that the State’s failure to inform him of James Brown’s arrest report and the information contained therein violated his right of due process and Supreme Court Rule 412(c). Rule 412(c), which codified the due process requirements set forth in Brady v. Maryland (1963), 373 U.S. 83, 87, 10 L. Ed. 2d 215, 218, 83 S. Ct. 1194, 1196-97, provides:

“[T]he State shall disclose to defense counsel any material or information within its possession or control which tends to negate the guilt of the accused as to the > offense charged or would tend to reduce his punishment therefor.” 73 Ill. 2d R. 412(c).

Defendant’s argument is based on the contention that the information contained in James Brown’s arrest report was relevant evidence which would have been admissible at trial and which would have raised a reasonable doubt as to defendant’s guilt. Defendant asserts that the information in the arrest report is admissible evidence because Brown’s crime was similar to the one with which defendant was charged.

This court has held that evidence of a similar offense committed by the defendant in a criminal case is admissible against a defendant under a theory of modus operandi. (People v. Romero (1977), 66 Ill. 2d 325, 330; People v. McDonald (1975), 62 Ill. 2d 448, 455; People v. Palmer (1970), 47 Ill. 2d 289, 296.) However, in cases where the State seeks to use similar offenses against defendant, as well as in cases in which the defendant attempts to use a particular modus operandi as evidence that the crime was committed by another person, a separate offense is found to be relevant and admissible as proof of modus operandi only upon a strong and persuasive showing of similarity. See People v. McDonald (1975), 62 Ill. 2d 448, 455; Commonwealth v. Keizer (1979), 377 Mass. 264, 267-68, 385 N.E.2d 1001, 1004; People v. King (1978), 61 Ill. App. 3d 49, 54; People v. Osborn (1977), 53 Ill. App. 3d 312, 321.

Defendant cites People v. McDonald (1975), 62 Ill. 2d 448, and Commonwealth v. Keizer (1979), 377 Mass. 264, 385 N.E.2d 1001, two cases in which similarities between the offenses justified the admission of the “other offense” as modus operandi evidence. However, the similarity of the offenses in those cases is far more striking than in the case before us. In McDonald, this court allowed evidence of a subsequent burglary to be admitted against the accused at his burglary trial. In that case, both crimes were committed in the early morning hours. In each crime, the burglar gained entrance to the residence by removing a window screen while standing on an overturned refuse basket. In each case, the manner of attack upon a female victim was similar. In each case, the intruder wore gym shoes, khaki pants and gloves. Further, the victims in both offenses identified the defendant as their assailant.

In Keizer, the Supreme Judicial Court held that evidence implicating another for the robbery with which defendant was charged shouldbe admitted. The court stated:

“Here, there are substantial connecting links between the offense charged and the subsequent crime. Both offenses involved a crime of the same type, committed by similar methods in the same vicinity of Boston, by three males of similar description. In addition, similar weapons were used, not just in the generic sense, but in terms of specific characteristics: what appeared to be a square-barreled pistol and a sawed off shotgun concealed by a paper bag. We recognize that some of the similarities recited may be common to many robberies committed in Boston, and that there is some discrepancy in the reported physical description of the suspects involved in the two offenses. However, the alleged participation of Linnell Young (for whom a warrant had issued for participation in the same crime for which the defendant stood indicted) in both robberies is distinctive, and when coupled with the other common factors forms a possible link between the two robberies.” 377 Mass. 264, 267-68, 385 N.E.2d 1001, 1004.

In contrast, in the instant case we do not perceive the presence of substantial connecting links between the March 1978 offense committed by James Brown and the offense charged against defendant. Defendant argues that the offense committed by James Brown wherein he shoplifted some meat, fled from a police officer, and reached for the officer’s gun during a struggle is “strikingly similar” to the instant offense. However, as the appellate court noted, putting meat inside one’s clothes is a standard shoplifting technique, as is grabbing for a gun during a struggle. Contrary to the above cases, there are no distinctive features to serve as a link between the two offenses, such as using similar weapons, dressing the same, acting with the same number of people, or even a distinctive method of committing this particular offense. Although the similarities need not be unique only to the two offenses being compared, there must be present some distinctive features that are not common to most offenses of that type in order to demonstrate modus operandi.

Defendant argues that the limits on the use of other-crime evidence by a defendant should be more liberal than the limits placed upon the prosecution’s use of such evidence. We recognize that where defendant offers other-crime evidence, it should be admitted if it contains significant probative value to his defense. (See Holt v. United States (5th Cir. 1965), 342 F.2d 163, 166; Commonwealth v. Keizer (1979), 377 Mass. 264, 267, 385 N.E.2d 1001, 1003; State v. Bock (1949), 229 Minn. 449, 458, 39 N.W.2d 887, 892.) However, in order for other crimes to have significant probative value under a modus operandi theory, there must be a substantial and meaningful link between the offenses being compared. In none of the cases in which evidence of other offenses was admitted under a modus operandi theory (whether the evidence was offered by the State or defendant) were the similarities so limited and the link so tenuous as in the instant case.

For the above reasons, the offense committed by James Brown would have been inadmissible under a modus operandi theory and there was no violation of Supreme Court Rule 412(c) by the State’s failure to disclose the existence of the arrest report to the defendant.

Defendant’s second argument on appeal is that an out-of-court admission to the offense by James Brown was admissible for substantive purposes under the penal-interest exception to the rule against hearsay. The general rule is that a third party’s extrajudicial declarations, not made under oath, that he committed a crime are purely hearsay and are inadmissible, even though they are declarations against interest. (People v. Craven (1973), 54 Ill. 2d 419, 427, citing People v. Lettrich (1952), 413 Ill. 172, 178.) However, the United States Supreme Court has relied upon the following four objective indicia of trustworthiness in holding that declarations against penal interest may be admissible: (1) The statement was spontaneous and occurred shortly after the crime; (2) the statement was corroborated by other evidence; (3) the statement was self-incriminating and a declaration against interest; and (4) there was an adequate opportunity for cross-examination of the declarant. (Chambers v. Mississippi (1973), 410 U.S. 284, 300-01, 35 L. Ed. 2d 297, 311-12, 93 S. Ct. 1038, 1048-49.) This court has adopted the language of Chambers and held that the presence of objective indicia of trustworthiness is necessary for admissibility under the admission-against-penal-interest exception. People v. Craven (1973), 54 Ill. 2d 419, 428-29.

Although the declarant (James Brown) was at the trial and had an opportunity to be cross-examined, other indicia of reliability present in Chambers were not present here. Contrary to the situation in Chambers, Jimmie Sanders Brown testified that James Brown’s admission occurred in February 1978, approximately two months after the offense — not shortly after the crime occurred. More significantly, there was no independent corroboration of the declarant’s statement — an important consideration under Chambers and in Craven. See E. Cleary & M. Graham, Illinois Evidence § 804.7 (3d ed. 1979).

Defendant argues corroboration was present in this case. He points to James Brown’s corroboration of the fact that a conversation occurred between him and Jimmie Sanders Brown. The existence of the conversation is not in dispute; it is the contents of that conversation that require corroboration. The presence of Lori Ann Fulton, James Brown’s girlfriend, in the store at the same time as the perpetrator does not, in our view, constitute meaningful corroboration, since she denied that Brown was present in the store. Nor does the commission of another offense by James Brown, which we have already held to be inadmissible into evidence, constitute corroboration sufficient to admit a declaration against penal interest.

The type of corroboration necessary was illustrated by the Supreme Court in Chambers:

“[E]ach [declaration] was corroborated by some other evidence in the case — McDonald’s sworn confession, the testimony of an eyewitness to the shooting, the testimony that McDonald was seen with a gun immediately after the shooting, and proof of his prior ownership of a .22-caliber revolver and subsequent purchase of a new weapon. The sheer number of independent confessions provided additional corroboration for each.” 410 U.S. 284, 300, 35 L. Ed. 2d 297, 312, 93 S. Ct. 1038, 1048.

(Compare United States v. Annese (1st Cir. 1980), 631 F.2d 1041, 1045; United States v. Satterfield (9th Cir. 1978), 572 F.2d 687, 693; United States v. Guillette (2d Cir. 1976), 547 F.2d 743, 754; United States v. Hughes (5th Cir. 1976), 529 F.2d 838, 840-41.) The types of corroboration that would demonstrate the reliability of Brown’s alleged statement against interest are absent from the record. Here, there was no eyewitness corroboration, Brown was not even seen in the vicinity of the Convenient Food Mart, there was no physical evidence linking Brown to the offense, there was no sworn confession, there was some confusion in Jimmie Sanders Brown’s testimony as to the exact nature of the declaration, and the purported statement was only heard by one man. See People v. Craven (1973), 54 Ill. 2d 419, 429.

The exception allowing an admission against penal interest is a limited one. (People v. Craven (1973), 54 III. 2d 419, 429.) The two-month time interval between the offense and the alleged declaration, combined with the absence of corroborating evidence, results in a failure to provide the necessary reliability for James Brown’s purported statement to fall within our limited admission-against-penal-interest hearsay exception. Consequently, the trial court properly ruled James Brown’s alleged declaration inadmissible for substantive purposes.

Defendant’s third argument on appeal is that the trial court committed reversible error by prohibiting him from impeaching James Brown with evidence of prior robbery and theft convictions. The traditional rule that a party cannot impeach his own witness has been significantly liberalized over the years. (People v. Wesley (1959), 18 Ill. 2d 138, 150-51; Chambers v. Mississippi (1973), 410 U.S. 284, 296, 35 L. Ed. 2d 297, 309, 93 S. Ct. 1038, 1046. See People v. DeHoyos (1976), 64 Ill. 2d 128.) Supreme Court Rule 238 (73 Ill. 2d R. 238) provides that a hostile witness may be examined by the party calling him as if under cross-examination. (See Smith’s Transfer Corp. v. Industrial Com. (1979), 76 Ill. 2d 338, 349-50; People v. Wesley (1959), 18 Ill. 2d 138, 150-51; 73 Ill. 2d R. 238.) On cross-examination, a party may be impeached by prior convictions (People v. Spates (1979), 77 Ill. 2d 193; Knowles v. Panopoulos (1977), 66 Ill. 2d 585; People v. Montgomery (1971), 47 Ill. 2d 510); therefore, it follows that a hostile witness also may be impeached by prior convictions.

This conclusion comports with the Supreme Court’s language in Chambers v. Mississippi where the court invalidated a Mississippi rule that a party could not impeach its own witness:

“The right of cross-examination is more than a desirable rule of trial procedure. It is implicit in the constitutional right of confrontation, and helps assure the ‘accuracy of the truth-determining process.’ [Citations.] It is, indeed, ‘an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.’ 000
# « «
aaa The availability of the right to confront and to cross-examine those who give damaging testimony against the accused has never been held to depend on whether the witness was initially put on the stand by the accused or by the State.” (410 U.S. 284, 295-98, 35 L. Ed. 2d 297, 309-10, 93 S. Ct. 1038,1046-47.)

See also People v. DeHoyos (1976), 64 Ill. 2d 128.

In this case, after defense counsel called James Brown as a witness, the trial court, at defense counsel’s request, declared Brown a hostile witness. Defense counsel then attempted to cross-examine Brown regarding his prior convictions. The State’s objection was sustained by the court. In light of the above holding, it was error for the trial court to do so. We reject the State’s contention that evidence of the other convictions was properly excluded because defendant sought to introduce them to imply that the witness was more likely to commit the present offense. Defense counsel’s stated purpose was to use the convictions for impeachment. Under the circumstances of this case, no justification existed for the trial court’s refusal to allow defendant to impeach his own witness by prior convictions.

This conclusion leads to the question of whether the error in not allowing introduction of James Brown’s prior convictions constituted reversible error. The trial court allowed defendant to impeach James Brown by use of his prior inconsistent statement regarding his connection to the offense. Defendant argues that James Brown’s prior inconsistent statement would only have impeachment value if the jury believed Jimmie Sanders Brown rather than James Brown at trial. On the other hand, according to defendant, James Brown’s prior convictions would impeach his credibility irrespective of the degree of credibility the jury attributed to Jimmie Sanders Brown.

The jury had ample opportunity to observe both Jimmie Sanders Brown and James Brown and assess their credibility. At trial, James Brown denied making any admission regarding the instant offense to Jimmie Sanders Brown. Following his denial, defendant called Jimmie Sanders Brown, who then testified that James Brown did mention to him some involvement in the offense. It is likely that this served to impeach James Brown’s credibility in the eyes of the jury, and evidence of James Brown’s prior convictions would have minimal, if any, effect on his credibility. Further, inasmuch as we have held James Brown’s alleged admission inadmissible for substantive purposes, and his testimony concerned only that point, his credibility was not crucial to this case.

Moreover, the jury had an opportunity to observe and judge the credibility of the defendant, defendant’s other witnesses, and all the State’s witnesses. Irrespective of James Brown’s testimony, the evidence presented by the State was more than sufficient to support a conviction. The security guard and the two cashiers unequivocally identified defendant as the perpetrator at the Convenient Food Mart. A positive identification by a single witness with ample opportunity to observe is sufficient to support a conviction, even in the presence of contradicting alibi testimony. (People v. Manion (1977), 67 Ill. 2d 564, 578; People v. Williams (1975), 60 Ill. 2d 1, 12; People v. Stringer (1972), 52 Ill. 2d 564, 569.) Further, at trial, the two cashiers, after viewing James Brown in court, positively stated that James Brown was not the individual who entered the store on the night of the occurrence.

The evidence strongly established defendant’s guilt beyond a reasonable doubt, and the trial court’s error in excluding evidence of James Brown’s prior convictions cannot be regarded as prejudicial to the extent of requiring reversal. See People v. Wright(1974), 56 Ill. 2d 523, 533-34; People v. Helm (1968), 40 Ill. 2d 39, 46-47; People v. Armstrong (1961), 22 Ill. 2d 420, 424.

The State argues that the appellate court erred in reversing defendant’s conviction for criminal damage to property. Count II of the information against the defendant alleged:

“*** Defendant did knowingly damage, by shooting a firearm, certain property, to-wit: a door, the property of Michael Maycen, 000 in violation of Section 21 — 1 of Chapter 38 of Illinois Revised Statutes.”

Section 21 — 1(a) of the Criminal Code of 1961 provides that criminal damage to property is committed when one “[k]nowingly damages any property of another without his consent

The State argues that Maycen, the security guard, had a sufficient possessory interest in the damaged door to the Convenient Food Mart to fall under the purview of the statute. Defendant argues that the evidence did not establish that Maycen had the necessary possessory or ownership interest in the damaged door.

In a criminal-damage-to-property prosecution, the State must prove that the property damaged was that of a person other than the defendant. (People v. O’Brien (1949), 404 Ill. 236, 238-39. See People v. Burnett (1946), 394 Ill. 420, 422.) As the dissent in the appellate court opinion noted, the requirements as to proof of ownership have been relaxed in recent years. Section 15 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 15 — 2) defines owner as “a person, other than the offender, who has possession of or any other interest in the property involved oao.” (Emphasis added.) Section 20 — 1(b) of the Criminal Code of 1961 (dealing with arson) defines property of another as “a building or other property, whether real or personal, in which a person other than the offender has an interest which the offender has no authority to defeat or impair, even though the offender may also have an interest in the building or property.” Ill. Rev. Stat. 1977, ch. 38, par. 20 — 1(b). See In re W.S. (1980), 81 Ill. 2d 252, 257 (proving the existence of a theft offense only requires showing that someone other than the accused possessed or held an interest in the property; the State was not required to prove the corporate existence of the owner); People v. Foster (1964), 30 Ill. 2d 106, 108 (in a burglary prosecution, proof of lawful occupancy and possession is sufficient and it is unnecessary to either allege or prove legal ownership of the property); People v. Rawls (1978), 57 Ill. App. 3d 702 (in an arson case, State does not have the burden of proving the identity of the owner or possessor of the premises provided the proof otherwise establishes that the property is one in which someone other than the defendant has an interest that the defendant has no authority to defeat or impair); People v. Wilson (1974), 17 Ill. App. 3d 48 (in a criminal damage to property case, proof of lawful possession by the complainant was sufficient; proof of ownership of the building was not required); People v. Hurley (1973), 10 Ill. App. 3d 74 (manager of a service station had sufficient legal control or possession to support a burglary conviction against defendant).

The State relied on Maycen to establish the necessary interest in the property involved. As security guard, the property of the owner was entrusted to his care, and it was his duty to secure the premises and to protect it during his hours of employment. There is little doubt that Maycen exercised control over and had the necessary possessory interest in the premises. In the instant case, the premises were sufficiently identified by the evidence. Maycen’s property interest in the premises falls under the liberal boundaries of ownership given in section 15 — 2 of the Criminal Code of 1961. We hold that the State met the statutory requirement of section 21 — 1(a) of the Code in that the property damaged was that “of another.” This, combined with Maycen’s testimony that the damage to the front door of the Convenient Food Mart was done without his consent, satisfied the State’s need to prove the essential elements of criminal damage to property and the defendant’s conviction on that count should be allowed to stand.

For the above-stated reasons, the appellate court’s decision on the robbery, aggravated-assault and attempted-theft counts is affirmed. The appellate court’s decision on the criminal-damage-to-property count is reversed, and defendant’s judgment of conviction for that offense is reinstated. The judgment of the circuit court of Kankakee County is affirmed.

Appellate court affirmed in part and reversed in part; circuit court affirmed.


author: MR. JUSTICE SIMON

text:
    (Nos. 54393, 54394 cons.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JOHNNIE “LITTLE JOHNNIE” WILKERSON, Appellee.—THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JOHNNIE B. WILKERSON, Appellee.

      Opinion filed November 20, 1981.

      Tyrone Fahner, Attorney General, of Springfield, and Henry Lazarro, Special Prosecutor, of Urbana (Robert J. Biderman and James K. Horstman, of the State’s Attorneys Appellate Service Commission, of Springfield, of counsel), for the People.
    Daniel D. Yuhas and Don L. Johnson, of the Office of the State Appellate Defender, of Springfield, for appellee Johnnie “Little Johnnie” Wilkerson.

      Marian Kurata, of Urbana, for appellee Johnnie B. Wilkerson.
   MR. JUSTICE SIMON

delivered the opinion of the court:

A Champaign County jury found the defendants, Johnnie “Little Johnnie” Wilkerson and Johnnie B. Wilkerson, guilty of attempted murder, armed violence and aggravated battery in the shooting of Ricky Jones, Terry Bolden and Lurlie Bolden. But the jury’s verdict was tainted by both improper limitation of the cross-examination of a State’s witness and confusing instructions. The appellate court reversed the convictions in unpublished orders (73 Ill. 2d R. 23) and granted the defendants new trials (90 III. App. 3d 1204; 89 Ill. App. 3d 1206). This court granted leave to appeal under Rule 315 (73 Ill. 2d R. 315), and we now affirm the appellate court.

The incident which gave rise to the convictions grew out of a tussle between two boys who were neighbors in a Champaign apartment complex. One boy was bitten; he complained to his mother, Vivian Turner, who took up the matter with the other boy’s mother, Katie Bolden. An argument erupted, and a police officer was eventually called to quell the disturbance. After he left, tempers continued to flare, not only between the mothers but also between at least one of the defendants, who were Vivian Turner’s brothers, and the victims, who were friends of or related to Katie Bolden.

When a fight broke out between Katie Bolden and Vivian Turner, Johnnie B. Wilkerson fired a shot into the air to break it up. Accounts of what followed differed. The State’s witnesses said that Johnnie B. Wilkerson shot at them, hitting Lurlie and Terry Bolden, that he came into the Bolden apartment after them and shot Terry Bolden again, that he shot Ricky Jones in a struggle when Jones tried to grab Wilkerson’s pistol, and that Little Johnnie Wilkerson came into the apartment and shot Jones as he lay on the floor. The victims claimed that everyone on their side of the dispute was unarmed.

Johnnie B. Wilkerson said that when he saw Katie Bolden running to attack Vivian Turner, he tried to grab Katie but was spun around. He saw Ricky Jones with something menacing in his hand, heard a shot and fired at Jones. Wilkerson then shot at Terry Bolden, who had come charging at him. Confused and wounded in the back, Wilkerson went into the Bolden apartment by mistake, only to have a shoot-out with the already wounded Terry Bolden, who followed him in. Wilkerson admitted Ricky Jones was shot in a struggle for the pistol.

Little Johnnie Wilkerson testified that he was behind the apartment building listening to a car radio when the shooting started. He said that he went into his sister’s apartment and did not shoot anyone. Both Katie Bolden and Vivian Turner broke and ran when the shooting started.

On cross-examination of Katie Bolden, the defendants tried to impeach her by pointing out that her testimony could be biased. Several felony-theft and welfare-fraud charges were pending against her in Champaign County, and the defendants’ aim was to convey to the jury that she might be trying to curry favor with the prosecutor of those charges by slanting her story in the Wilkerson case to suit the State. An offer of proof disclosed the charges, but Bolden denied receiving any promises of leniency. The prosecutor in her case, who at one time was the prosecutor in the Wilkerson case, told Bolden that after the Wilkerson case was completed, he “would be in touch with her. I would be in contact with her lawyer and try to work something out to see what could be worked out.” At the time of the Wilkerson trial, the prosecutor had not made up his mind what he was going to do with the pending charges against Katie Bolden. The trial court refused to allow the defendants to present this evidence to the jury.

The defendants should have been permitted on cross-examination to develop matters that would reasonably show the bias, motive or willingness of the State’s witnesses to testify, and this included the fact that Katie Bolden was charged with a crime. (People v. Barr (1972), 51 Ill. 2d 50, 51.) The widest latitude should have been given to the defendants to show bias. (People v. Mason (1963), 28 Ill. 2d 396, 403.) Defense counsel should have been allowed to present the theory that the witness was not credible because she was being rewarded for her testimony, and should have, been allowed to expose to the jury the underlying charges so that the jurors could consider their effect, if any, on the reliability of the witness.

The trial court’s decision to keep this evidence from the jury was not justified as an exercise of sound discretion. People v. Eddington (1979), 77 Ill. 2d 41, on which the State places heavy reliance, is unlike this case. In Eddington the witness had already given similar testimony in the case before the pending charges had arisen. Because the pending charges were from a different county, the prosecutor had little influence over their disposition. In Eddington it was proper to keep the matters from the jury because the pending charges could not reasonably have affected the bias, motive or willingness of the State’s witness to testify. (77 Ill. 2d 41, 46.) But that is not the situation here. The Bolden charges were explicitly being held until the Wilkerson trial was completed, and a jury could reasonably infer that Bolden was influenced by those charges to give testimony favorable to the State, despite her protests to the contrary. The trial court should have permitted the whole matter to be presented to the jury.

The error in limiting the defendants’ cross-examination was not harmless. The prejudice which ensues from a denial of the constitutional right of confrontation was described in Alford v. United States (1931), 282 U.S. 687, 692, 75 L. Ed. 624. 628. 51 S. Ct. 218. 219:

“Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them. 000 In this respect a summary denial of the right of cross-examination is distinguishable from the erroneous admission of harmless testimony.”

(See also Davis v. Alaska (1974), 415 U.S. 308, 318, 39 L. Ed. 2d 347, 355, 94 S. Ct. 1105, 1111; Smith v. Illinois (1968), 390 U.S. 129, 132, 19 L. Ed. 2d 956, 959, 88 S. Ct. 748, 750.) The test for harmless constitutional error is whether the error was harmless beyond a reasonable doubt. (Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.) Three approaches for measuring error under Chapman have been noted: (1) focusing on the error to determine whether it might have contributed to the conviction (e.g, Fahy v. Connecticut (1963), 375 U.S. 85, 11 L. Ed. 2d 171, 84 S. Ct. 229); (2)examining the other evidence in the case to see if overwhelming evidence supports the conviction (e.g., Milton v. Wainwright (1972), 407 U.S. 371, 33 L. Ed. 2d 1, 92 S. Ct. 2174); (3) determining whether the evidence is cumulative or merely duplicates properly admitted evidence (e.g., Harrington v. California (1969), 395 U.S. 250, 23 L. Ed. 2d 284, 89 S. Ct. 1726). (People v. Collins (1980), 85 Ill. App. 3d 1056, 1060; State v. McKenzie (1980), -Mont--,_, 608 P.2d 428, 458.) None of these ways of viewing the issue lead to the conclusion that the error in this case was harmless beyond a reasonable doubt.

First, the error could have contributed to the guilty verdicts. Had the jury heard the excluded impeachment evidence and chosen to disbelieve Katie Bolden, the verdict might well have been different. She was the linchpin of the State’s case; she was the one who started the fight that led to the shooting.

Second, the other evidence in the case was not overwhelming. The prosecution and defense accounts sharply varied, and each was supported by testimony of participants and bystanders. Because credibility was the key to the case, this error cannot simply be dismissed as harmless.

Finally, the impeachment evidence was not merely corroborative. The State points out that Katie Bolden’s testimony was dubious, even without the attempted impeachment, because her relationship to the victims gave her an obvious motive to testify falsely. The jury, not the court, had the responsibility of determining credibility, and a court may not exclude otherwise admissible impeachment because it feels that the witness has already been sufficiently impeached.

In addition to placing improper limits on cross-examination, the trial court approved the use of confusing issues instructions. The Wilkersons advanced different defenses— self-defense for Johnnie B. Wilkerson and alibi for Little Johnnie Wilkerson. Nevertheless, when the standard form issues instructions were tendered, the trial court refused to give them. The defense instructions were patterned after Illinois Pattern Jury Instructions (IPI), Criminal, No. 25.05 (1968), which sets out, in great detail for each defendant, the exact issues to be decided under each charge, including, where appropriate, the issue of self-defense. The judge thought the pattern instructions would be too confusing for the jury. Instead, the court gave instructions which detailed the issues for each charge but did not distinguish between the defendants or include the issue of self-defense. The court added one catch-all instruction covering all charges which described what the jury had to find to reject Johnnie B. Wilkerson’s claim of self-defense.

It is undisputed that both the IPI issues instructions and the instructions used by the trial court stated the correct law. The only question is whether the deviation from the approved instructions was justified by the fear of jury confusion.

Whenever an instruction on a subject is to be given, Rule 451 requires that the trial court give the applicable IPI instruction unless it does not accurately state the law. (73 Ill. 2d R. 451.) The pattern instructions recommend the use of separate instructions when more than one defendant is on trial for the same charge. (IPI Criminal No. 27.03.) As already stated, they also recommend that self-defense, when raised, be handled by an instruction defining the defense and by incorporating the self-defense claim into the issues instruction for the principal offense. (IPI Criminal Nos. 25.05, 25.00 (Introduction).) The trial court departed from the IPI pattern by doing neither.

Each of the deviations from the procedure recommended by IPI has been approved when it was the only deviation. (People v. Mulford (1943), 385 Ill. 48, 58 (instructions did not distinguish between defendants); People v. Kelly (1956), 8 Ill. 2d 604, 616 (self-defense not required in instruction setting forth the offense if set forth in an accompanying instruction).) But when both deviations occur in one case, the result is a set of jury instructions so confusing that the jury’s verdict is suspect and cannot stand.

The value of the form instruction as approved is that it places before the jury, on a single page, for each count against every defendant, a simple list of the decisions it must make to reach its verdict. The elements of the offense, the defenses that have been raised and the burden of proof are there; all that is required of the jury is to run down the list and make its decision in keeping with the other instructions in the case and then to fill out the appropriate verdict form. In a complicated case with several counts and different defendants, there are more pieces of paper when each charge against each defendant is handled on a separate sheet setting forth all the issues raised in that count. But it is less confusing to give the jury several pieces of paper, with one piece for each count, than to force the jury to shuffle back and forth between several general statements of the law. The legal education of the jurors comes from the instructions, and they should not be forced to take snippets from each of several definitions to form the complete set of instructions needed to dispose of a single count.

Although the trial court was properly concerned with jury confusion, the result of its ruling was to increase confusion. The instructions that were given cast doubt on the integrity of the jury’s verdict and should not be repeated at the new trial which is being ordered. See People v. Jenkins (1977), 69 Ill. 2d 61.

The defendants have raised several additional issues which merit only a short discussion. Little Johnnie Wilkerson claims that the proof was insufficient to convict him. But if the State’s witnesses were believed, the evidence against him was sufficient to prove guilt beyond a reasonable doubt of the crimes charged; the issue of credibility is for the jury. Issues unlikely to recur on retrial, such as defects in discovery, need not now be addressed; likewise, the defendants’ sentencing arguments are moot now that their convictions have been reversed. Johnnie B. Wilkerson claims that medical evidence regarding the victims’ wounds should not have been admitted because of the overall prejudicial impact, but since the trial court’s decision can only be reviewed in the context of all the evidence admitted at trial, resolution of that issue should also await retrial. Finally, the consequences of a shift in position of Little Johnnie Wilkerson’s original defense counsel concern us, as they did the appellate court. After serving in that capacity for almost three months, the defense counsel joined the State’s Attorney’s staff, replacing a recently resigned assistant State’s Attorney who upon his resignation was appointed a special prosecutor in this case. Prior to the appointment of the special prosecutor, this case had been handled by the same assistant State’s Attorney who was in charge of the case against Katie Bolden. When the defense asked that assistant State’s Attorney whether he had assisted the special prosecutor after the former defense counsel had become an assistant State’s Attorney, the special prosecutor’s objection was sustained. This was error, for the answer to the question might have revealed that the special prosecutor was assisted by information someone in the State’s Attorney’s office had received from the former defense counsel. On remand the defendant should be permitted to pursue this inquiry.

The judgments of the appellate court are affirmed.

Judgments affirmed.


text:
    (No. 54320.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JAMES W. WILLIAMS, JR., Appellant (Charles H. Delano, Appellant).

      Opinion filed November 20, 1981.

      Robert J. McIntyre, of Delano Law Offices, P.C., of Springfield, for appellant.
    Tyrone C. Fahner, Attorney General, and J. William Roberts, State’s Attorney, both of Springfield (Melbourne A. Noel, Jr., Assistant Attorney General, of counsel), for the People.
   MR. JUSTICE MORAN

delivered the opinion of the court:

The Sangamon County circuit court found defendant’s counsel, Charles H. Delano, in contempt of court for failure to comply with its discovery order. The appellate court affirmed (90 Ill. App. 3d 158), and we granted leave to appeal.

Defendant, James W. Williams, Jr., was charged by complaint with disobeying a stop sign and speeding, each being classified a misdemeanor offense. Pursuant to section 114 — 9 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 9), Delano filed a discovery motion seeking, inter alia, the names of witnesses the State expected to call at trial. The State provided the requested information and subsequently filed its own discovery motion, seeking the names of defendant’s witnesses. The court ordered Delano to comply with the request, but he refused to do so. He was thereupon found in contempt of court and fined $10. The pending criminal proceedings were stayed pending the appeal of the judgment for contempt.

The appellate court found that a trial court has authority to order discovery of the defendant by the State in a nonfelony case. The court partially based its finding on this court’s decision in People v. Schmidt (1974), 56 Ill. 2d 572, and reasoned that discovery should be required where it is necessary to protect the State from unfair surprises and disadvantages. Although the court recognized that Schmidt did not extend the criminal discovery rules to nonfelony cases, it nevertheless determined that trial courts, under their inherent power, could require discovery in the interests of justice.

The sole issue on appeal is whether a trial court has inherent authority to order discovery of the defendant by the State in a nonfelony case. We hold that it does not.

Supreme Court Rule 411 (73 Ill. 2d R. 411), effective October 1, 1971, provides:

“These rules shall be applied in all criminal cases wherein the accused is charged with an offense for which, upon conviction, he might be imprisoned in the penitentiary. They shall become applicable following indictment or information and shall not be operative prior to or in the course of any preliminary hearing.”
(Emphasis added.)

The State, relying on the rationale of the appellate court, contends that, notwithstanding the rule, the prosecution is accorded limited discovery in nonfelony cases. This contention is based on the concluding paragraph in People v. Schmidt (1974), 56 Ill. 2d 572, 575:

“The State is required to furnish defendants in misdemeanor cases with a list of witnesses (Ill. Rev. Stat. 1971, ch. 38, par. 114 — 9), any confession of the defendant (Ill. Rev. Stat. 1971, ch. 38, par. 114 — 10), evidence negating the defendant’s guilt (Brady v. Maryland [(1963)], 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194), and, in this particular case, the results of the breathalyzer test (Ill. Rev. Stat. 1971, ch. 95/2, par. 11 — 501(g)). Additionally, the [police] report which the defendant seeks will be available at trial for use in impeachment of the prosecution witness who prepared it. (People v. Cagle, 41 Ill. 2d 528.) At the time of adoption of the 1971 rules we believed adequate for the lesser offenses the discovery provided by case law and statute, and we see no reason to depart from that view now.” (Emphasis added.)

The appellate court found that the emphasized portion of this paragraph allows a limited right of discovery where it was provided for by either previous case law or statute. Conceding that there is no statutory law authorizing discovery by the State in a misdemeanor case, the court held that its own previous decisions in People v. Endress (1969), 106 Ill. App. 2d 217, and People v. Tribbett (1967), 90 Ill. App. 2d 296, provided sufficient case law to allow trial courts to order pretrial disclosure. Endress and Tribbett, decided by the same district of the appellate court as in the instant case, found that courts have inherent authority to order pretrial discovery. These cases involved a defendant, not the State, requesting discovery. Discretionary discovery favoring the prosecution had not developed under case law prior to our rules. More importantly, Endress and Tribbett were decided prior to the promulgation of the rules regarding criminal discovery. Whatever authority a trial court may have had to order pretrial discovery, absent specific rules, is no longer relevant. A rule adopted by this court is an expression of its inherent or constitutional power which, upon its effective date, becomes law the same as a statute or the law in a given case.

In Schmidt, the court noted certain instances whereby discovery procedures would be allowed in nonfelony cases. These procedures include providing the defendant with a list of witnesses, the results of any breathalyzer test, any inculpatory statements made by the defendant, and any evidence which tends to negate the defendant’s guilt. (56 Ill. 2d 572, 575.) These limited additional provisions arose under case law and statutes which we do not consider in conflict with the discovery rules. It is noteworthy that none of the allowable disclosures accord the State discovery rights in misdemeanor cases.

The State next contends that if one party is entitled to discovery, due process requires reciprocity. Thus, in the instant case, since the defendant is entitled to a list of prosecution witnesses, the prosecution should be provided with the names of defense witnesses. The State relies primarily on the decision in People v. DeWitt (1979), 78 Ill. 2d 82, 85, in which this court noted that “due process does not guarantee pretrial discovery to a criminal defendant unless the defendant is also required to furnish similar discovery to the State.”

Generally, there is no constitutional right to pretrial discovery. (Weatherford v. Bursey (1977), 429 U.S. 545, 51 L. Ed. 2d 30, 97 S. Ct. 837.) In DeWitt, this court merely recognized the Supreme Court’s decision in Wardius v. Oregon (1973), 412 U.S. 470, 37 L. Ed. 2d 82, 93 S. Ct. 2208, which held that, constitutionally, a defendant is entitled to discovery whenever that defendant must furnish similar discovery to the State. The converse of the reciprocity theory is not true; when a defendant is granted pretrial discovery, there is no corresponding due process right to the State.

The due process clauses of the fifth and fourteenth amendments were enacted to protect “persons,” not States. (Curry v. McCanless (1939), 307 U.S. 357, 83 L. Ed. 1339, 59 S. Ct. 900.) “The word ‘person’ in the context of the Due Process Clause of the Fifth Amendment cannot, by any reasonable mode of interpretation, be expanded to encompass the States of the Union, and to our knowledge this has never been done by any Court.” (South Carolina v. Katzenbach (1966), 383 U.S. 301, 323-24, 15 L. Ed. 2d 769, 784, 86 S. Ct. 803, 816.) In light of the similar language in both amendments, we see no reason to attribute a different meaning to “persons” as that word is used in the fourteenth amendment. It is clear that a State is not a person within the meaning of the fourteenth amendment; thus, the State cannot benefit from the due process protection embodied in that amendment. Indeed, the purpose of the fourteenth amendment is to protect individuals from State action. E.g., District of Columbia v. Carter (1973), 409 U.S. 418, 423, 34 L. Ed. 2d 613, 620, 93 S. Ct. 602, 605-06.

The final issue concerns the validity of the contempt judgment imposed on Delano for failing to comply with the discovery order. While sanctions are a proper means by which to enforce discovery procedures (Ill. Rev. Stat. 1977, ch. 110A, par. 219(c)), this rule presupposes the discovery order was valid. When it is invalid, the contempt charge should be reversed. (People v. Ryan (1964), 30 Ill. 2d 456.) Having determined the discovery order in this case was improper, the contempt judgment is vacated.

For these reasons, the judgment of the appellate court is reversed, the judgment of contempt by the circuit court of Sangamon County is vacated, and the cause is remanded to that court for further proceedings against the defendant, James W. Williams, Jr.

Appellate court reversed; contempt vacated; cause remanded.