text:
    (No. 55041.

      In re JOHN A. KESLER, Attorney, Respondent.

      Opinion filed February 19, 1982.

      Philip Schickedanz, of Springfield, for the Administrator of the Attorney Registration and Disciplinary Commission.
    Robert B. Oxtoby, of Van Meter, Oxtoby & Funk, of Springfield, for respondent.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

This reciprocal disciplinary action under our Rule 763 (73 Ill. 2d R. 763) was initiated by the Administrator of the Attorney Registration and Disciplinary Commission as a consequence of the disbarment by the Indiana Supreme Court of respondent, John A. Kesler. The Hearing Board provided in our disciplinary system (73 Ill. 2d Rules 751 through 771), apparently believing Rule 763 required discipline identical to that imposed by the sister State except in unusual circumstances not present here, recommended disbarment. That recommendation was affirmed by the Review Board.

In relevant part Rule 763 states:

“If an attorney licensed to practice law in this State and another State is disciplined in the foreign State, he may be subjected to the same discipline in this State, to run concurrently with the discipline in the foreign State, upon proof of the order of the foreign State imposing the discipline.
The Administrator shall initiate proceedings under this Rule by filing a petition with the court, to which a certified copy of the order of the foreign State is attached, together with proof of service upon the attorney. Within 21 days after service of a copy of the petition upon him the attorney may request in writing a hearing on the petition. The hearing shall be held before the Hearing Board no less than 14 days after notice thereof is given to the attorney respondent and the Administrator. At the hearing the attorney may be heard only on the issues as to (1) whether or not the order of the foreign State was entered; (2) whether it applies to the attorney; (3) whether it remains in full force and effect; (4) whether the procedure in the foreign State resulting in the order was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process of law; and (5) whether the conduct of the attorney warrants substantially less discipline in this State.”

It has been stipulated by the parties that in all significant respects the Indiana and Illinois disciplinary rules are identical. Respondent’s sole contention is that substantially less discipline is warranted in Illinois than was imposed in Indiana.

We believe it apparent that Rule 763 does not require an automatic imposition in Illinois proceedings of the same discipline imposed by the State in which the misconduct occurred or in which prior disciplinary action had been taken. We think this intent appears from the language of the rule that “he [the attorney] may be subjected to the same discipline in this State” (emphasis added) and the provision in clause (5) permitting the respondent to urge that his conduct “warrants substantially less discipline in this State.” Clearly clause (5) would be meaningless if the rule required imposition of the same discipline imposed in the other jurisdiction. That a particular sanction has resulted in the sister State from the same conduct is persuasive of the propriety of that sanction, but it is not binding, and our adjudicatory bodies may recommend, and we may impose, different discipline where analysis of the evidence compels such result. No other interpretation can be placed upon our opinion in In re Neff (1980), 83 Ill. 2d 20, in which both the dismissal recommended by the Review Board and the action taken by us differed from the discipline recommended in Wisconsin, the originating State. This is not to indicate, of course, that the factual findings in the Indiana proceedings may now be disputed, for they, like the finding of guilt in a criminal case upon which subsequent disciplinary proceedings are based, are res judicata. (Neff; In re Cook (1977), 67 Ill. 2d 26, 32; In re Andros (1976), 64 Ill. 2d 419, 423.) We turn, then, to a consideration of the evidence before us.

Respondent is a native of Clark County, Illinois, where many of his relatives still reside. He attended law school in Indiana and was admitted to both the Indiana and Illinois bars in 1951. He practiced as a sole practitioner, principally in Terre Haute, Indiana, and five Illinois counties on or near the Indiana border, doing considerable trial work in personal injury, criminal and divorce cases. While he handled other matters, including some probate cases, he had very few estates as large as the Grammer estate, in the administration of which the misconduct occurred. He had served two terms as a representative in the Indiana legislature and had been an unsuccessful candidate for judge. At the time of the Indiana disciplinary hearings he was the Democratic candidate for the State senate in a heavily Democratic district. He attributed his defeat to publicity resulting from the fact that the hearing officer at the supposedly confidential disciplinary proceedings permitted the news media and photographers to “invade” the hearing room.

The misconduct facts as testified to in the Illinois proceedings are apparently substantially as testified to in the Indiana proceedings and are summarized in the opinion of the Supreme Court of Indiana, from which we quote:

“On April 2, 1973, the Respondent and John L. Smith (‘Smith’) were appointed CoExecutors of the Last Will of Elsie M. Grammer. Respondent was also the attorney for the Estate. The Co-Executors qualified, gave their joint and several surety bond in the sum of $75,000, and commenced the administration of the Estate. The will provided a $1,000 cash bequest to the testatrix’s cousin, James Edward Smith, and the rest, residue and remainder was given and bequeathed to Smith. The estate consisted of real and personal property having an approximate value aggregating in excess of $100,000.
Smith desired a partial distribution of his share prior to the closing of the Estate in order to purchase a residence for himself and requested Respondent on several occasions to provide the partial distribution. The Respondent advised Smith in substance that no partial distributions would or could be made within six (6) months of the opening of the Estate because such was the period of time within which claims or a will contest could be filed. After six (6) months, Smith again requested the Respondent to permit a partial distribution to Smith of $45,000.
Respondent was concerned about his personal liability to taxing authorities in the event distributions to Smith rendered the Estate unable later to discharge then unforeseen tax liabilities and in the event a recovery from Smith could not be made. The Estate was solvent, but Respondent had information that the deceased had been ‘generous’ to Smith before her death and the Respondent thought that additional tax liability to the Estate could arise from predeath transfers.
Respondent consulted a Terre Haute CPA for advice and was told that, conceivably, the Respondent could incur some personal responsibility by making a premature distribution before the receipt of final tax clearances. Respondent informed the CPA that Respondent was considering an arrangement whereunder a portion of the distribution would be placed with the Respondent in escrow, so that the Respondent would be held harmless if the Estate was financially unable to pay potential tax claims due to a deficiency in estate funds created by the advance distribution. The CPA advised the Respondent that the escrow proposal sounded like an excellent and proper way to handle the matter.
In October, 1973, Respondent and Smith again discussed the partial distribution desired by Smith. Following this discussion a ‘Petition for Partial Distribution’ was filed in the Vigo Circuit Court. The petition, inter alia, stated as follows:
‘That said John Smith has an urgent need for part of the money coming to him and is desirous of having $45,000.00 of his bequest paid over to him at this time as partial distribution of what he’ll have coming at the close of this estate, and no possible hazard or danger could come to any creditor, devisee or anybody by him receiving this money at this time.’
There was no mention in the petition of any escrow agreement. The Court approved the partial distribution. At the time this pleading was filed, the Respondent was serving as Probate Commissioner of the Vigo Circuit Court.
The partial distribution of $45,000 was drawn by the Co-Executors in two checks payable to Smith, one for $30,000 and the second in the amount of $15,000. Smith kept the $30,000 check but returned the $15,000 check to the Respondent after endorsement. The Respondent either deposited the $15,000 in his personal checking or savings accounts, purchased bonds or other investment paper, or otherwise utilized the proceeds as his own. By the Respondent’s own admission, he considered the funds his own to do with as he pleased, subject only to a claimed escrow arrangement and to his duty to repay the principal amount of $15,000 to Smith at the time of final distribution of the Estate.
Thereafter, three (3) additional partial distributions were made to Smith by the Co-Executors without petition or court order. The dates of such distributions, and the amount of each, were as follows:
Date Amount
$ 7,500.00 February 21, 1974
15.000. 00 May 23,1974
15.000. 00 May 8, 1975
On the occasion of each additional partial distribution, the Respondent obtained from Smith one-third (1/3) of such distribution. As in the case of the initial distribution, the Respondent did not recall, nor was he able to reconstruct from his records, what he did with the additional $12,500 he received from Smith between February 21, 1974, and May 8, 1975. He either deposited such monies in his personal checking or savings accounts, purchased bonds or other investment paper, or otherwise utilized the monies as his own. By May 8, 1975, the Respondent had obtained from Smith a total of $27,500. At no time did Smith know of, or inquire into, the whereabouts of any of the funds (or their proceeds) he had given the Respondent at the time of the various partial distributions.
There was substantial delay in closing the Estate. The Final Report was eventually filed on November 19, 1975, and set for hearing on December 10, 1975. Smith appeared at the scheduled hearing and, with the help of the then Probate Commissioner, filed his sworn objections to the Final Account wherein he stated that he had received only two-thirds (2/3) of the amounts for which he had given the Respondent receipts. A hearing on Smith’s objections to the Final Report was scheduled for January 8, 1976. However, on December 17, 1975, Smith and the Respondent appeared before the Judge of the Vigo Circuit Court and filed a ‘Verified Stipulation of Facts and Dismissal of Objection to Final Report’ which had been authored by the Respondent. On the same day, Smith received from the Respondent the sum of $27,500, the principal amount paid by Smith to the Respondent out of Smith’s partial distributions.” In re Kesler (1979), __Ind.__, __, 397 N.E.2d 574, 577-78.

The Indiana court stated that respondent’s failure to include any mention of the escrow agreement in the petition for partial distribution filed in the Vigo County circuit court constituted a “misrepresentation” to that court. In his Illinois testimony respondent stated that he had disclosed to the Vigo circuit court the details of the escrow arrangement during the hearing on the petition “as the transcript here shows without contradiction, exactly what his and my arrangement was. It suited the judge and it suited John Smith and we handled it exactly that way.” The “transcript” referred to apparently was of the Indiana disciplinary proceedings, copies of which both counsel had and offered to the hearing panel. The panel declined to admit the tránscript, however, presumably because of its belief that it had no discretion as to the disciplinary sanction. Consequently we can only assume that the absence of any attempt to impeach respondent’s Illinois testimony regarding disclosure to the court indicates its compatibility with his Indiana testimony. We mention this, not in criticism of the finding of misrepresentation by the Supreme Court of Indiana, but only because we believe respondent’s oral explanation to the court mitigates its absence from the petition. Respondent testified that the escrow agreement was in writing and signed only by him. While he had given John Smith a copy, the latter did not recall receiving it when he testified in the Indiana proceedings. The transcript of those proceedings apparently contained a copy of the agreement.

Respondent also testified here that his annual income was in excess of $100,000 at the time of these events, and there was evidence that his net worth at the time of the hearings exceeded $1 million. His 1979 Federal income tax return shows a tax of $86,519 on an adjusted gross income of $187,274. While readily conceding he should never have commingled the funds, respondent repeatedly and emphatically denied any intent to permanently retamthe $27,500 or to keep it beyond the time at which Federal estate tax clearance was received for the estate. He conceded that John Smith was entitled to interest upon the repaid principal but testified he had made no effort to pay it during the pendency of the Illinois proceedings because his attorney thought he ought not to do so. He also testified, somewhat imprecisely, that he kept the securities purchased with the $27,500, or the receipt for them, in a lock box attached to the escrow agreement or other papers explaining the custody arrangement.

Some 35 letters or statements from judges, legislators, lawyers, the Terre Haute chief of police and officers, a minister, and other community leaders were introduced attesting to respondent’s professional ability, community activity and standing, and his good reputation prior to the disbarment. These character statements portray respondent as an honest, outspoken, hardworking lawyer who was quite active in community affairs and who represented his clients with ability, dedication and vigor. Several tell of his unpaid services to indigent clients and community organizations; several others suggest the disciplinary proceedings to have been politically inspired. In addition to the statements attesting to a somewhat unusual amount of community activity, respondent testified to his service in the armed forces, to the presidencies or equivalent positions held by him in his church groups, veterans’ organizations, service clubs, and PTA clubs, and to his former memberships in various bar organizations. He further testified that about the time the disciplinary proceedings commenced in Indiana he returned to Indiana University and audited a course in legal ethics. It was disclosed by respondent during the Illinois proceedings that he had received a private reprimand from the Indiana Supreme Court in connection with his service as a probate commissioner. While its basis is not entirely clear, that reprimand apparently resulted from respondent’s subsequent representation of heirs in an estate in which he, as probate commissioner, had originally admitted the will to probate. The import of respondent’s testimony was that he had inadvertently overlooked his earlier part in the formality of admitting the will to probate.

There is, of course, not the slightest doubt that respondent’s handling of the $27,500 constituted a prohibited commingling and conversion of client funds. (79 Ill. 2d R. 9—102.) Respondent readily concedes the error of his conduct and indicates his willingness to pay John Smith interest for the periods, ranging from six months to two years, during which respondent received the income from the converted funds. The Indiana Supreme Court viewed the conduct as not merely poor accounting practices but, rather, as a deliberate course of conduct designed to benefit respondent at the expense of the estate. It considered disbarment necessary “in order to demonstrate this Court’s total abhorrence of the acts of misconduct.” (__ Ind.__,__, 397 N.E.2d 574, 579-80.) While respondent’s substantial income and net worth tend to support his disavowal of any intent to permanently convert the funds, and also militate against any need on his part for the comparatively insignificant amount of income from the converted funds, it seems odd that he made no effort to reimburse the estate or Smith for the lost earnings. It is undisputed, too, that the conversions were not inadvertent, but were, as the Indiana court indicated, the result of an intentional, deliberate course of conduct. That the arrangement was agreed to by respondent’s elderly, lay coexecutor affords no justification for the surprising insensitivity to his professional responsibilities manifested by respondent. If he was, as he appears to have been, seriously concerned as to additional taxes, it would have been a simple matter to have retained the identical amounts in the estate account.

Two principal purposes of our disciplinary system are to safeguard the public and maintain the integrity of the legal profession. (In re Spencer (1977), 68 Ill. 2d 496, 501.) As this court pointed out in In re Clayter (1980), 78 Ill. 2d 276, 281:

“The commingling of funds and depositing clients’ funds or other money held by an attorney for another in an account standing in the attorney’s name alone endangers the security of the interests of those to whom the money belongs. Commingling of funds has been the first step in a large number of cases which this court has considered involving wrongful conversion of funds by attorneys. Also, when funds belonging to another are deposited in an attorney’s personal account, there is the danger of the conversion of these funds by operation of law; that is, in case of the death or insolvency of an attorney, these funds could well become assets of his estate, leaving the rightful owner with only a claim of a creditor against the attorney’s estate. For these reasons, it is essential that such money be held in such a manner that there can be no doubt that the attorney is holding it only for another and that the money does not belong to him personally.”

This court has consistently condemned commingling, and the conversion which so frequently results has been the occasion for disciplinary action ranging from disbarment (In re Smith (1979), 75 Ill. 2d 134) to censure (Clayter; see also In re Schlax (1980), 81 Ill. 2d 66; In re Brody (1976), 65 Ill. 2d 152; In re Smith (1976), 63 Ill. 2d 250; In re Sherman (1975), 60 Ill. 2d 590; In re Wyatt (1972), 53 Ill. 2d 44; In re Fumo (1961), 22 Ill. 2d 429; In re Lingle (1963), 27 Ill. 2d 459). Without intending to minimize the serious nature of respondent’s misconduct, it can fairly be said that the instances in which this court has disbarred lawyers because of commingling and conversion have involved circumstances of a substantially more aggravated character than appear here. (See, e.g., In re Smith (1979), 75 Ill. 2d 134; In re Stillo (1977), 68 Ill. 2d 49; In re Smith (1976), 63 Ill. 2d 250; In re Ahern (1962), 26 Ill. 2d 104.) So far as this record indicates, respondent had no intention of permanently retaining the funds; he was always in a position to repay the $27,500 and did so promptly in the amount requested as soon as he became aware that John Smith was objecting. These facts differ from the usual case involving commingling and conversion where the funds are restored only after lengthy delays during which the client has vainly sought to obtain that to which he was rightfully entitled. In re Brody (1976), 65 Ill. 2d 152; In re Wyatt (1972), 53 Ill. 2d 44; In re Fumo (1961), 22 Ill. 2d 429.

Unquestionably, a substantial disciplinary sanction is called for, but we are of the opinion that suspension is sufficient. Respondent will apparently be eligible to seek reinstatement in Indiana after November 15, 1984. Were we to disbar here, our rules, as do Indiana’s, preclude reinstatement for five years. Considering respondent’s repentant attitude, his prior good reputation, and his community activities, we believe it unnecessary for the protection of the public or the integrity of the profession (In re Saladino (1978), 71 Ill. 2d 263) to extend a suspension beyond the time at which respondent can seek readmission to practice in Indiana.

Accordingly, respondent is suspended until November 15,1984.

Respondent suspended.


source: Caselaw Access Project

author: JUSTICE SIMON

license: Public Domain

text:
    (No. 54655.
    ELAINE LYONS, Appellee, v. HERITAGE HOUSE RESTAURANTS, INC., et al., Appellants.

      Opinion filed February 19, 1982.

      Carol J. Hansen Fines of Griffin, Winning, Lindner, Newkirk, Cohen & Bodew;es, of Springfield, for appellants.
    James M. Drake, of Springfield, for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

Plaintiff, Elaine Lyons, alleges she was dismissed by defendant Heritage House from her position as manager of kitchen operations because her superiors there learned that she had developed an early form of cancer of the uterus, a condition which she asserts would have had no effect on her ability to carry out her duties. Claiming the loss of her salary, her employee life and health insurance benefits and use of the company car, she brought suit in the Sangamon County circuit court. That court dismissed her complaint for failure to state a cause of action; the appellate court, however, reversed (92 Ill. App. 3d 668). We granted leave to appeal and now affirm the circuit court’s dismissal.

The sole issue in this case is whether uterine cancer can be considered a “handicap” within the meaning of article I, section 19, of the 1970 Illinois Constitution or the Equal Opportunities for the Handicapped Act (Ill. Rev. Stat. 1977, ch. 38, par. 65—21 et seq.), both of which prohibit employment discrimination against the handicapped. The 1970 Illinois Constitution, article I, section 19, states, “All persons with a physical or mental handicap *** shall be free from discrimination unrelated to ability in the hiring and promotion practices of any employer.” The Equal Opportunities for the Handicapped Act similarly provides:

“It is an unlawful employment practice for an employer:
(1) to refuse to hire, to discharge, or otherwise to discriminate against any individual *** because of such individual’s physical or mental handicap, unless it can be shown that the particular handicap prevents the performance of the employment involved.” (Ill. Rev. Stat. 1977, ch. 38, par. 65-23.)

The difficulty that arises here stems from the fact that the Constitution leaves the word “handicap” undefined, and the Act defined “handicap” somewhat circularly as “a handicap unrelated to one’s ability to perform jobs or positions available to him for hire or promotion.” (Ill. Rev. Stat. 1977, ch. 38, par. 65—22.) It should be noted that after the conduct in question here occurred the Equal Opportunities for the Handicapped Act was replaced by the Illinois Human Rights Act (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 1—101 et seq.), which uses a substantially different definition. It is clear that any conduct occurring hereafter will be governed by that act.

Background material on the two laws is scant. Transcripts of the constitutional convention indicate that delegates were unsure of the provision’s scope, and because it was submitted from the floor of the convention, there is no official committee report to examine. When asked for his definition of physically handicapped, one of the provision’s sponsors explained, “Well I would say polio victim, loss of one arm, a leg, finger, one eye, things like this — physically handicapped,” thus adopting a narrow definition of the term. Other delegates, however, suggested that a physical handicap might also include a lisp, shortness, hemophilia, or nearsightedness. None of these personal views on the meaning of the term, not even that of the sponsor, necessarily, however, reflects the intent of the convention as a body, and therefore none can be given controlling weight. (See Eddy v. Morgan (1905), 216 Ill. 437, 449.) Background material explaining the legislature’s perception of the word “handicap” in the Equal Opportunities for the Handicapped Act is even less helpful. In fact, it is nonexistent.

Handicapped themselves by this lack of information, appellate courts have devised and applied their own definitions based on analogies to other Illinois statutes and administrative rules, Federal law and the law of other States. Unfortunately, and owing to the courts’ lack of access to the lawmakers’ actual intent, these efforts have not always been in complete harmony.

In Advocates for the Handicapped v. Sears, Roebuck & Co. (1978), 67 Ill. App. 3d 512, Sears refused to hire a graduating business student who suffered from chronic kidney ailments and who had recently had a kidney transplant. Sears considered him an uninsurable risk under its self-insurance program, although conceding that he was capable of any physical activity he wished to engage in except lifting heavy weights, a skill that the position for which he was rejected did not require.

The court began its analysis by defining handicap as the “class of physical and mental conditions which are generally believed to impose severe barriers upon the ability of an individual to perform major life functions” (67 Ill. App. 3d 512, 516-17), a definition that it probably drew from the guidelines promulgated by the Fair Employment Practices Commission under the Fair Employment Practices Act (Ill. Rev. Stat. 1977, ch. 48, par. 851 et seq.), which has also been replaced by the Human Rights Act, and from the Federal Rehabilitation Act of 1973 (29 U.S.C. sec. 706(6) (1976)). The court noted that the inability to perform major life functions must be inherent in the physical or mental condition; otherwise the word “handicap” could be construed to include any physical or mental condition, normal or abnormal, that might unfairly cause an employer not to hire. Such a result, it felt, was not in keeping with the ordinary meaning of the term. To emphasize this point, the court, without rejecting its first definition, alternatively defined “handicap” as “a disability *** which is generally perceived as one which severely limits the individual in performing work-related functions.” (67 Ill. App. 3d 512, 517.) Applying both definitions, the court concluded that the plaintiff’s condition was not a handicap.

Kubik v. CNA Financial Corp. (1981), 96 Ill. App. 3d 715, which involved a man recovering from the removal of a malignant tumor in his colon, loosely followed the reasoning in Advocates. Without referring to the second definition given in that case, the court found that the plaintiff’s condition did not come within the class of physical or mental conditions which are generally believed to impose severe barriers upon the ability of the individual to perform major life functions and therefore did not constitute a handicap.

The appellate court’s analysis in the present case contrasts with these two. First, it rejected the second definition of “handicap” formulated by the court in Advocates. It stated that to define “handicap” as a “disability which is generally perceived as one which severely limits the individual in performing work-related functions” would nullify the force of the law entirely because, under both the statute and the Constitution, handicaps that interfere with the applicant’s ability to do the job are expressly exempted. Instead, the appellate court apparently opted to apply the first definition proposed in Advocates. Contrary to Kubik v. CNA Financial Corp. and perhaps to Advocates itself, however, the appellate court in this case held that cancer was indeed such a physical condition and therefore a handicap within the meaning of the laws in issue.

The one thing the three cases appear to agree upon is that the first definition of handicap set forth in Advocates, “a class of physical and mental conditions which are generally believed to impose severe barriers upon the ability of an individual to perform major life functions” (67 Ill. App. 3d 512, 516-17), is a fair one. Except for the fact that the definition calls for “severe barriers” rather than “substantial” ones, it is identical to the definition given in the guidelines promulgated under the Fair Employment Practices Act, which was similar in purpose, although different in remedy, to the laws in question, and similar to that given in the Federal Rehabilitation Act of 1973, which prevents recipients of Federal funds from discriminating on the basis of a handicap. We think that the analogy drawn by the courts to these statutes is sensible; even though both came into effect after the laws in question, both were in existence at the time the actions complained of occurred.

Moreover, we believe the definition itself comports with the ordinary understanding of the term. It refers to physical conditions that impede normal, everyday activities, rather than to any medical condition or illness. See Cal. Gov’t Code sec. 12926 (Deering 1981 Supp.) (distinguishes handicap from medical condition, both of which are separately protected); American National Insurance Co. v. State of California Fair Employment Practice Com. (1981), 114 Cal. App. 3d 1008, 170 Cal. Rptr. 887 (holding that high blood pressure by itself is not a handicap); GASP v. Mecklenburg County (1979), 42 N.C. App. 225, 256 S.E.2d 477 (persons allergic to cigarette smoke are not handicapped); but see Chrysler Outboard Corp. v. Department of Industry, Labor and Human Relations (Wis. Cir. Ct. 1976), 14 Fair Emp. Prac. Cas. 344 (BNA) (affirming an administrative finding that leukemia is a handicap).

Not all physical conditions that may give rise to discriminatory treatment are physical handicaps within the meaning of the law. Race, sex, age, although physical conditions, are not handicaps. That is one reason why they are provided for elsewhere in employment discrimination law. Not all abnormal physical conditions are handicaps. Some impose no limitations at all on everyday activity such as the lack of tonsils or an appendix, acne or dandruff; others are so temporary in effect that they cannot be considered a substantial limitation on activity, such as colds, flu or mumps. These cannot be called handicaps.

The problem with this definition is that it has proved itself difficult to apply to specific situations. The Kubik court found that it did not apply to cancer; the appellate court in this case held that it did. The appellate court based its decision to include cancer in the definition on its belief that the Federal Rehabiliatation Act specifically included cancer as a handicap and that the Fair Employment Practices Commission Guidelines also specifically provide as such. Nowhere does the court consider independently whether or not plaintiff’s illness falls within the literal meaning of the definition.

Contrary to the appellate court’s belief, the Federal Rehabilitation Act does not specifically include cancer in its list of handicaps. Rather, in defining “severe handicap,” it includes disabilities which require extra services and which result from blindness, cancer, cerebral palsy or a variety of other conditions. (29 U.S.C. sec. 706(13) (1979 Supp.).) It does not call cancer by itself a handicap. The Fair Employment Practices Commission Guidelines similarly do not specifically classify cancer as a handicap. Rather they offhandedly mention recovered cancer victims as persons who sometimes have experienced .trouble readjusting to employment because of their record of a handicap. Nowhere does the Commission say that cancer victims necessarily come within the definition of the handicapped. Even if it had, this court would not feel bound by such an interpretation in this case, in which we are applying the Equal Opportunities for the Handicapped Act and the Illinois Constitution, both of which predate the laws discussed above. We do not believe it is in accord with the ordinary understanding of the term.

The proper approach to applying the definition of handicap, in our judgment, lies not in the analysis the appellate court developed in this case but in independently applying the following definition: the class of physical and mental conditions which are generally believed to impose severe barriers upon the ability of an individual to perform major life functions (the first definition set forth in Advocates). We note that the Fair Employment Practices Commission Guidelines define “life activities” to include communication, self-care, socialization, education, employment, transportation, and the like. Similarly, the United States Department of Health and Human Services defined major life activities to include activities such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. (45 C.F.R. 84.3(j) (2) (ii) (1980).) The plaintiff has not alleged that her cancer has substantially hindered her in any of these activities or any other activities or that her employer perceived her condition as causing such a hindrance. In our judgment, she is not handicapped within the meaning of the Illinois Constitution or the Equal Opportunities for the Handicapped Act.

Appellate court reversed; circuit court affirmed.


author: JUSTICE UNDERWOOD

text:
    (No. 54682.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. STANLEY A. LIPPERT, Appellee.

      Opinion filed February 19, 1982.

      Tyrone G. Fahner, Attorney General, of Springfield, Thomas J. Homer, State’s Attorney, of Lewistown (John X. Breslin and Gary F. Gnidovec, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
    Robert Agostinelli, Deputy Defender, and Frank W. Ralph, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellee.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

At the conclusion of a bench trial in the circuit court of Fulton County defendant, Stanley Lippert, was found guilty of the armed robbery of two elderly couples and was sentenced to a term of six years’ imprisonment. A divided appellate court held that a showup identification of defendant by the robbery victims and a subsequent confession should have been suppressed and remanded the cause for a new trial. (93 Ill. App. 3d 273.) That court held that Terry v. Ohio (1968), 393 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, provided insufficient basis for the detention and transportation of the defendant to the site of the showup. We granted the State’s petition for leave to appeal.

At the hearing on the motion to suppress, a deputy sheriff, Sergeant Daniel Dugan, testified that he responded to a call from the Riverview Inn, Liverpool, Illinois, about 11 p.m., November 5, 1979. There he interviewed the complainants, Mr. and Mrs. Raymond Morse and Mr. and Mrs. Charles Scott, who told him that they had been robbed at gunpoint by four young men about 25 minutes earlier. The robbery occurred on the Liverpool road, the only northbound route out of town, at a point about one-half mile south of Illinois route 24. This was two to three miles from the Inn. The Morses’ car had developed engine trouble, and they had pulled to the side of the road. The victims had flagged down an approaching car containing four young men and asked for assistance. After tinkering with the engine for a few minutes, one of the men, later identified as defendant, obtained a rifle from their car, pointed it at the victims and announced the robbery. About $30 was taken. The robbers then got back in their car and left, headed northward.

According to Deputy Dugan’s testimony, one of the robbers was described to him as about 5 feet 11 inches in height with medium length blond hair, and another as having bushy brown hair and wearing a blue jacket.

The deputy testified that he requested the Morses and Scotts to remain at the Inn while he checked the area. He then proceeded northward on the Liverpool road and within a few minutes received a radio message from another deputy that a car was approaching him from the rear. At - a point between Morse’s car and route 24, he backed his squad car into a driveway so that his bright lights would shine onto the road and across traffic. He saw a car without license plates approaching, and observed that the driver had medium length light brown hair and the passenger had bushy hair and was wearing a blue coat. He testified that the two matched the descriptions given him. The car passed at about 30 miles per hour and he followed, stopping the car at the route 24 intersection. When he approached the car he saw that it had a temporary registration certificate taped on the passenger side of the windshield. Defendant, who had been driving, identified himself by presenting a uniform traffic citation in lieu of a driver’s license. He and his passenger, William Long, were frisked, Deputy Dugan noting that defendant had light brown hair and was about 5 feet 11 inches tall.

Defendant and Long were taken back to the Liverpool Inn, defendant in Deputy Dugan’s squad car and Long in another squad car which had arrived after the stop. Deputy Dugan read defendant his Miranda rights during this trip and defendant acknowledged he understood them. However, defendant denied knowing anything about the robbery. They arrived at the Riverview Inn about 55 minutes after the robbery. Mrs. Morse came out and identified defendant and Long, who were sitting in the squad cars in which each had arrived. Mrs. Morse told Deputy Dugan that defendant had complained about a cut finger during the robbery, and, upon checking defendant’s hands, Dugan found that defendant had stitches in his little finger. Mr. Morse then came out and identified defendant as the robber who held the rifle.

Deputy Dugan questioned defendant at this time and defendant told him that two others, Darrell Brazee and Richard Sale, had committed the robbery while he sat in the car. After the robbery, Brazee and Sale were dropped off near Brazee’s house in Liverpool, where they were going “’coon hunting.” They had taken the .22 rifle with them. Defendant was handcuffed and driven to an area near Brazee’s home. After about 25 minutes Brazee and Sale were arrested as they emerged from a wooded area. They were carrying a flashlight and a .22 rifle. The four were then taken to the county jail, about 20 minutes away.

Defendant, Sale and Brazee each gave short written statements that night admitting their participation in the robbery. (Long, who was 16, was turned over to juvenile authorities.) The following morning more detailed statements were tape recorded and later transcribed. The three confessions corroborated each other in almost all respects. There is no contention here that Miranda warnings were inadequate or that the confessions were involuntary. The other witnesses called by the State at the motion hearing testified to the Miranda warnings and as witnesses to the statements. Defendant testified, contrary to the State’s witnesses, that he was handcuffed before the showup. He also stated, that he had been drinking that night.

The trial court denied the motion to suppress, finding that the confessions were voluntarily given and that Deputy Dugan “had probable cause to stop the car” because of the lack of license plates and because of his “identification of these two individuals being possibly involved in the robbery according to the description which he had been furnished.” It was then stipulated that the testimony at trial would be the same as at the hearing on the motion to suppress and that defendant had been identified by the Morses and Scotts, both at the Inn and in court. The confessions were also admitted. The only additional witness called at trial testified that the defendant had been read his Miranda rights before he confessed. Defendant renewed his motion to suppress but offered no other evidence, and a judgment of guilty was entered.

There is, of course, no doubt that the absence of license plates justified the initial stop of defendant’s car. The determination that the temporary registration was valid, however, eliminated the absence of license plates as authority for defendant’s further detention, and that authorization must be found, if at all, in the existence of probable cause to arrest defendant or under Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Gt. 1868. While one member of the appellate court stated that the State had there conceded the absence of probable cause, that conclusion is now disputed by the State, which indicates it believed the trial court’s denial of the motion to suppress was predicated on Terry and accordingly focused its argument upon that issue.

Defendant, however, argues that even if the initial stop was valid under Terry, his subsequent detention and transportation must be supported by nothing less than probable cause to arrest. Since, defendant contends, the facts known to Deputy Dugan at the time of the stop do not constitute probable cause for arrest, the initial identification and subsequent confession should have been suppressed.

Whether there was probable cause for arrest is a mixed question of law and fact. (People v. McGowan (1953), 415 Ill. 375, 380; People v. Roberta (1933), 352 Ill. 189, 193; 5 Am. Jur. 2d Arrest §49 (1962).) The facts and circumstances of the stop and detention of the defendant were fully developed at the hearing on the motion to suppress and are uncontroverted. Although the trial court found only that Deputy Dugan had probable cause to stop and did not make a finding on the issue of probable cause to arrest, there appears to be no reason why the remaining question of law may not be determined here. (Cf., People v. Kalpak (1957), 10 Ill. 2d 411, 425-26 (where the question of defective warrant was avoided by finding that probable cause to arrest without warrant was established); see also State v. Byers (1975), 85 Wash. 2d 783, 539 P.2d 833.) The question here is a close one, but we believe that Deputy Dugan had probable cause to arrest the defendant and Long, for armed robbery, following the stop.

Probable cause for arrest exists when facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested has committed the offense. (People v. Creach (1980), 79 Ill. 2d 96, 101; cert. denied (1980), 449 U.S. 1010, 66 L. Ed. 2d 467, 101 S. Ct. 564; People v. Robinson (1976), 62 Ill. 2d 273; People v. Clay (1973), 55 Ill. 2d 501; see also Brinegar v. United States (1949), 338 U.S. 160, 93 L. Ed. 1879, 69 S. Ct. 1302; Carroll v. Untied States (1925), 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280.) Although a “mere suspicion” that the person arrested has committed the offense is an insufficient basis for arrest (see Henry v. United States (1959), 361 U.S. 98, 4 L. Ed. 2d 134, 80 S. Ct. 168; Mallory v. United States (1957), 354 U.S. 449, 1 L. Ed. 2d 1479, 77 S. Ct. 1356), evidence sufficient to convict is not required (People v. Marino (1970), 44 Ill. 2d 562, 573; People v. Macias (1968), 39 Ill. 2d 208, 213, cert. denied (1969), 393 U.S. 1066, 21 L. Ed. 2d 709, 89 S. Ct. 721; People v. Fiorito (1960), 19 Ill. 2d 246, 253, cert. denied (1960), 364 U.S. 870, 5 L. Ed. 2d 93, 81 S. Ct. 113).

Because, as Professor LaFave points out in his treatise on the law of search and seizure, an arrest not only serves the function of producing persons for prosecution but also serves an investigative function, courts have not ruled that an arrest can occur only when the known facts indicate that it is more probable than not that the suspected individual has committed the crime. (1 W. LaFave, Search and Seizure §3.2, at 478-85 (1978), noting in particular the position taken in the Model Code of Pre-Arraignment Procedure 14 (Proposed Official Draft 1975).) Professor LaFave also suggests that a “more probable than not” test might be more appropriate if the question was whether the officer knew that a crime had been committed:

“[T]he probable cause test is a ‘compromise’ for accommodating the ‘often opposing interests’ of privacy and law enforcement. The compromise might well be struck somewhat differently in cases where the uncertainty is whether any crime has occurred, for it appears that the privacy and law enforcement interests ought to be weighed somewhat differently in that context. For one thing, it would seem that privacy is threatened less by permitting less than a 50% probability as to the identity of an offender than it is by permitting something short of more-probable-than-not as to the existence of criminal activity. As to the former, the existence of known criminal activity serves to provide an anchor or touchstone, in a time-space sense, which limits the police arrest authority. Police will not continually be arresting upon a less than 50% probability of guilt, but only in limited situations where a person is found in an area where it is known a crime has recently occurred. By contrast, if the police may also arrest upon a less than 50% probability that a crime has even occurred, then this would open up the possibility that police would generally arrest persons engaged in activity which was only equivocal. The latter practice, it seems fair to assume, would result in many more intrusions into the freedom and privacy of innocent persons than would the former.
By the same token, the law enforcement need for allowing arrests upon a less than 50% probability of crime is not as great as the need to permit arrests upon a less than 50% probability that the arrestee is the person who committed a known crime. As discussed earlier, the latter situation commonly involves police action taken in response to a recent serious crime, such as murder, armed robbery or burglary, where experience has shown that the chances of apprehending the offender are slight unless he is caught in the vicinity of the crime.” 1 LaFave, Search and Seizure §3.2, at 484-85 (1978).

At the time Deputy Dugan stopped defendant’s car he knew that an armed robbery had recently been committed. He was provided with a description of the robbers, and, immediately, within 30 to 35 minutes of the robbery, began to search the area for the robbers. Although some of the descriptions given by the victims were rather general, the rural area surrounding the small community of Liverpool was sparsely populated (Deputy Dugan referred to it as “desolate”), the Liverpool road was lightly traveled (defendant’s car was the only one seen by Dugan on the road), and it was late at night. Under these circumstances, the number of individuals in that area who might be expected to fit these descriptions, particularly the blue-jacket and bushy-hair portions, was sufficiently limited to avoid arbitrary or wholesale arrests. Cf., Commonwealth v. Jackson (1975), 459 Pa. 669, 331 A.2d 189, and Commonwealth v. Richards (1974), 458 Pa. 455, 327 A.2d 63, where general descriptions in more populated areas were held too general to support arrest; see also Wong Sun v. United States (1963), 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407, and Mallory v. United States (1957), 354 U.S. 449, 1 L. Ed. 2d 1479, 77 S. Ct. 1356, where the general nature of information available to arresting officers was held to be insufficient.

Deputy Dugan testified that he was searching for one to four young, white males who would fit the descriptions. Both defendant and Long fit them reasonably closely. Defendant was also in the area of the robbery within a short time after its occurrence. Although defendant argues that this fact cuts against the existence of probable cause, in that robbers would be expected to be far away 30 minutes later, such a holding would require that searches for suspects take place only at the fringes of the area. Since there was no indication that the robbers were nonresidents of the area, it seems to us not illogical to expect that they might still be in the vicinity. While it is arguable that defendant had been coming from an unexpected direction, the fact remains that he was within the area in which a search could reasonably be conducted.

Clearly Deputy Dugan had sufficient cause to stop the car for investigative purposes, either on the grounds of his observation that its occupants seemed to match the descriptions he was given or that the car was without license plates. Upon a closer view of defendant, the deputy also observed that defendant matched the height description, and that Long, with his more distinctive bushy hair and blue jacket, fit the description rather well. The combination of two suspects, both fitting the descriptions, is another factor to be considered in determining the probabilities involved in the determination of “probable” cause. Under all of the circumstances present here we believe Deputy Dugan had probable cause to believe that defendant and Long were two of the robbers for whom he was looking. We hold, therefore, that defendant was constitutionally arrested when he was placed in the deputy’s squad car and taken back to Riverview Inn.

While we have determined that probable cause to arrest existed at the time defendant was placed in the deputy’s squad car, we also consider the transportation of the defendant the short distance involved here for purposes of a showup to have been a legitimate investigatory procedure even if one considers the grounds to have been less than probable cause to arrest. The line of demarcation between a legitimate seizure of a suspect on less than probable cause in a Terry stop and an impermissible seizure, tantamount to a full-blown arrest on less than probable cause as described in Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248, is not completely clear. It appears to us, as the State argues in this case, that a middle ground can exist wherein an investigatory procedure, such as an immediate showup, can be employed by officers acting on somewhat less than probable cause to arrest.

In Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, Sibron v. New York (1968), 392 U.S. 40, 20 L. Ed. 2d 917, 88 S. Ct. 1889, and Adams v. Williams (1972), 407 U.S. 143, 32 L. Ed. 2d 612, 92 S. Ct. 1921, the Supreme Court carved out a limited exception ^o the fourth amendment requirement that seizures of persons be based upon probable cause. Although much of the court’s concern in these cases was with the scope of a search of the person incidental to the stop, it was recognized that the purpose of the stop itself was to investigate the “articulable suspicions” of the officer that the person stopped had committed or was about to commit a crime. (Terry v. Ohio (1968), 392 U.S. 1, 22-23, 30, 20 L. Ed. 2d 889, 907, 911, 88 S. Ct. 1868, 1880-81, 1884; see 3 W. LaFave, Search and Seizure §9.2 (1978).) In many cases following Terry, courts refused to limit investigative technique to simple questioning of the suspect, but rather recognized that legitimate, efficient police work, under certain circumstances, might require either detention until witnesses could arrive who might provide positive identification or transportation of the suspect to those witnesses. (See, e.g., cases collected at 3 W. LaFave, Search and Seizure §9.2, at 44 n.93 (1978); see also United States v. Nieves (2d Cir. 1979), 609 F.2d 642; United States v. Esposito (E.D. New York 1980), 484 F. Supp. 556; Commonwealth v. Lovette (1979), 271 Pa. Super. 250, 413 A.2d 390; but see People v. Harris (1975), 15 Cal. 3d 384, 540 P.2d 632, 124 Cal. Rptr. 536.) The rationale of these cases was, apparently, that a short period of detention was only minimally intrusive when compared to the benefit of immediate investigation.

Defendant argues, however, that the decisions in Davis v. Mississippi (1969), 394 U.S. 721, 22 L. Ed. 2d 676, 89 S. Ct. 1394, Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254, and Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248, require probable cause to arrest before he may be transported from the site of the stop. In Dunaway the defendant was “picked up” on the strength of an informant’s tip for questioning in regard to a robbery/murder that had taken place several months before. He was brought to police headquarters and interrogated. The court, in holding that he had been seized unlawfully on less than probable cause, rejected the State’s argument that this police action was reasonable under the circumstances. In reaching this conclusion the court reviewed its holdings in both Davis and Brown, concluding:

“[CJustodial interrogation — regardless of its label— intrudes so severely on interests protected by the Fourth Amendment as necessarily to trigger the traditional safeguards against illegal arrest. We accordingly hold that the Rochester police violated the Fourth and Fourteenth Amendments when, without probable cause, they seized petitioner and transported him to the police station for interrogation.” (442 U.S. 200, 216, 60 L. Ed. 2d 824, 838, 99 S. Ct. 2248, 2258.)

See Comment, Custodial “Seizures” and the Poison Tree Doctrine: Dunaway v. New York and its Aftermath, 13 J. Marshall L. Rev. 733, 748 (1980), concluding, in part, that the court thus rejected “any standard short of probable cause for an involuntary custodial interrogation, no matter how exceptional the circumstances.”

The court has quite clearly held that in the context of the police activity in Dunaway, Brown and Davis probable cause is the balance between society’s interest in catching criminals and the individual’s liberty interest. However, in the case before us, we are presented with police conduct, substantially less intrusive than that in Dunaway and Brown and in a markedly different context. In Dunaway, Brown and Davis the seizure occurred long after the crime. Deputy Dugan, in contrast, was conducting a field investigation within just a few minutes of the crime. The stop of defendant occurred no more than 35 minutes after the robbery and very close to the scene of the crime. In the context of the time and place of the stop, late night on a virtually deserted country road, considering that both defendant and his passenger fit the descriptions given him by the victims, considering that simple questioning was inadequate to produce further information, considering that the victims, who were only a few minutes away, could immediately confirm or deny the identification of the suspects as the robbers, and, perhaps most importantly in view of Terry and Dunaway, considering that the transportation of defendant to the inn was not significantly more intrusive upon his liberty than detaining him to await arrival of the victims, we believe that the circumstances are much closer to those of a permissible stop under Terry and Adams than the impermissible station house, custodial questioning tantamount to a full blown arrest in Brown and Dunaway.

Faced with what appears to be a hard rule of probable cause in Dunaway, several Federal courts have refused to approve anything more than a Terry-stop absent probable cause. However, most of those cases differ, in important respects, from ours. In United States v. Chamberlin (9th Cir. 1980), 644 F.2d 1262, a 20-minute detention in a police car was held to exceed permissible limits; significantly, however, although the stop was valid under Terry, the police had only suspicions that a crime had been committed. United States v. Tookes (5th Cir. 1980), 633 F.2d 712, held that detention while officers searched for evidence of crime based only on suspicious activity of suspect was an impermissible arrest. United States v. Hill (5th Cir. 1980), 626 F.2d 429, held that a seizure based only on an anonymous tip that a drug deal was being made, where the defendant fit the description given by the informant, was an impermissible seizure under Dunaway; United States v. Tucker (2d Cir. 1979), 610 F.2d 1007, held that detention in a “holding pen” for several hours where the defendant was picked up as a suspect in a bank robbery the day after crime was impermissible under Dunaway. United States v. Perez-Esparza (9th Cir. 1979), 609 F.2d 1284, held that holding a suspect for three hours at a border checkpoint based on an informant’s tip that he was carrying drugs was a violation of Dunaway. United States v. Williams (8th Cir. 1979), 604 F.2d 1102, held that probable cause was necessary to take the defendant to the police station.

More recently, however, the apparently hard rule of Dunaway that seizures of persons be supported by probable cause was softened somewhat in Michigan v. Summers (1981), 452 U.S. 692, 69 L. Ed. 2d 340, 101 S. Ct. 2587. There defendant was detained by police upon grounds less than probable cause, while they searched a house for narcotics pursuant to a search warrant. The court found this detention was substantially less intrusive than that of Dunaway. Significantly, the court, in reviewing its holdings in Terry, Adams and other “stop" cases, noted: “In these cases, as in Dunaway, the Court was applying the ultimate standard of reasonableness embodied in the Fourth Amendment. [T]hey demonstrate that the exception for limited intrusions that may be justified by special law enforcement interests is not confined to the momentary, on-the-street detention accompanied by a frisk for weapons involved in Terry and Adams.” (Emphasis added.) 452 U.S. 692, 699-700, 69 L. Ed. 2d 340, 348, 101 S. Ct. 2587, 2592-93.

In addition, cases from other jurisdictions, on facts much closer to those here, which have approved similar police conduct. In State v. Fauria (La. 1981), 393 So. 2d 688, a detention of suspects at the site of the stop to await arrival of policeman who could identify suspected stolen goods was held a reasonable investigatory stop. In State v. Merklein (Fla. App. 1980), 388 So. 2d 218, a detention of the defendant for 20 to 40 minutes pending the arrival of robbery victims and witnesses, where the stop occurred soon after the robbery, was held to be reasonable without citing either Terry or Dunaway. In District of Columbia v. M.M. (D.C. App. 1979), 407 A.2d 698, where defendants fitting descriptions of robbers were stopped 25 minutes after a robbery, a short transportation for a showup to eyewitness was held not to be an unreasonable intrusion. (See also Wilkerson v. United States (D.C. App. 1981), 427 A.2d 923.) In a recent update of the treatise, Professor LaFave suggests Dunaway does not rule out transportation of a suspect for purposes of a showup.

“It may be said, of course, as to the situation presently under discussion, that again there is an additional circumstance not present in Terry or related cases decided by the Supreme Court under the balancing test: the suspect is not dealt with only at the place ‘where he was found,’ but instead is ‘transported’ elsewhere. But that alone, it is submitted, does not make the detention ‘in important respects indistinguishable from a traditional arrest.’ It is certainly much closer to a traditional stop under Terry, as the suspect is moved a short distance, is not confined in a police station, and is subjected to investigative techniques (almost always viewing by an eyewitness) with a high potential for promptly clearing or inculpating the suspect.” 3 W. LaFave, Search and Seizure §9.2, at 6 n.93.3 (1981 Supp.).

In many, if not most, of the cases in which Dunaway has been cited as controlling the decision to hold impermissible certain investigative activities short of custodial interrogation, the stop by police occurred before they knew that a crime had been committed. As Professor LaFave suggests is appropriate, courts have been more protective of individual liberty interests where it is not known that a crime has been committed than where the stop occurs during the period of an immediate investigation of a known crime. This distinction appears to be sound. We do not believe that the court in Dunaway intended to eliminate effective and only minimally intrusive investigative techniques employed by police in the immediate search for the perpetrators of serious crime. In Adams v. Williams, Justice Rehnquist, speaking for a majority of the court, said:

“The Fourth Amendment does not requiré a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response.” (407 U.S. 143, 145, 32 L. Ed. 2d 612, 616-17, 92 S. Ct. 1921, 1923.)

As the court noted in Mapp v. Ohio (1961), 367 U.S. 643, 657, 6 L. Ed. 2d 1081, 1091, 81 S. Ct. 1684, 1693, “[tjhere is no war between the Constitution and common sense.” We believe that common sense approves, and the fourth amendment does not condemn, the actions of Deputy Dugap, regardless of the existence of probable cause.

Nor do we believe that section 107—14 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 107—14), which codified Terry (People v. Lee (1971), 48 Ill. 2d 272, 279), prohibits the limited transportation of this defendant for the showup purposes. In the sparsely populated rural area where defendant was stopped late at night, the Riverview Inn, two to three miles away, was in our opinion within “the vicinity” of the stop as that phrase was legislatively intended. Similarly, the few minutes required for transportation there did not prolong the stop beyond the “reasonable period of time” permitted by the statute.

It remains to be decided whether the showup identification was admissible. This court has approved prompt showups near the scene of the crime as acceptable police procedure designed to aid police in determining whether to continue or to end the search for the culprits. (People v. McKinley (1977), 69 Ill. 2d 145, cert. denied (1978), 435 U.S. 975, 56 L. Ed. 2d 69, 98 S. Ct. 1623; see also People v. Bey (1972), 51 Ill. 2d 262; People v. Higgins (1972), 50 Ill. 2d 221, cert. denied (1972), 409 U.S. 855, 34 L. Ed. 2d 100, 93 S. Ct. 195; People v. Elam (1972), 50 Ill. 2d 214.) The admissibility of the evidence of a showup identification depends upon the reliability of that identification. (Manson v. Brathwaite (1977), 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243; People v. McKinley (1977), 69 Ill. 2d 145.) Applying to the showup at the Riverview Inn the factors suggested in Manson and McKinley, we find that during the course of the robbery Mrs. Morse was out of her car, talked to the robbers and had ample time to view defendant and others for a period of several minutes. Mr. Morse, although he was seated in the back seat of the car, also had ample opportunity to view the defendant before the robbery and had a much closer view when defendant held the rifle just a few inches from his head. The Morses appear to have been attentive to the robbers and provided an initial description that, although cdncededly somewhat general as to some, was reasonably accurate. Mrs. Morse, who came put of the Inn first and alone, promptly and positively identified defendant as the robber. Additionally she volunteered the information about the cut finger which was verified by Deputy Dugan’s inspection of defendant’s hands. Mr. Morse came out after this, and, immediately, apparently without talking to his wife, identified defendant as the person who held the rifle. A relatively short time, no more than 55 minutes, had elapsed between the robbery and the showup. In view of these factors we are satisfied that the showup identifications were sufficiently reliable to permit them to be introduced as evidence. Given the validity of the arrest and the admissibility of the showup identifications as evidence, there is no question that the in-court identification of defendant was also properly admitted. See, e.g., United States v. Crews (1980), 445 U.S. 463, 63 L. Ed. 2d 537, 100 S. Ct. 1244.

Accordingly, we find no error in the proceedings of the trial court. The judgment of the appellate court is reversed, and the judgment of the circuit court of Fulton County is affirmed.

Appellate court reversed; circuit court affirmed.


author:
JUSTICE MORAN
      JUSTICE SIMON,

text:
    (No. 54586.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. MARTY GLENN STOVER, Appellee.

      Opinion filed February 19, 1982.

      SIMON, J., specially concurring.
    Tyrone C. Fahner, Attorney General, of Springfield, and Thomas J. Difanis, State’s Attorney, of Urbana (Herbert Lee Caplan, Melbourne A. Noel, Jr., and Carolyn B. Notkoff, Assistant Attorneys General, of Chicago, and Robert J. Biderman and Garry W. Bryan, of the State’s Attorneys Appellate Service Commission, of Springfield, of counsel), for the People.
    Daniel D. Yuhas, Deputy Defender, and Janet Sinder, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellee.
   JUSTICE MORAN

delivered the opinion of the court:

Defendant, Marty Glenn Stover, was charged by information with the crimes of burglary, theft and resisting or obstructing peace officers. The burglary and theft charges were dismissed prior to trial. A jury in the circuit court of Champaign County found defendant guilty of the offense of resisting or obstructing a peace officer in violation of section 31 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 31—1). The appellate court reversed and remanded for a new trial (92 Ill. App. 3d 542), holding that a defense witness, who is a former codefendant, was improperly impeached by the use of his guilty plea to the same offense for which defendant was being tried. The court further held that the prosecutor’s inquiry into defendant’s previous acquaintance with the arresting officer was error. We allowed the State leave to appeal.

Two issues are raised on appeal: (1) May a witness be impeached by evidence that he pleaded guilty to the same misdemeanor offense with which defendant is charged? (2) Was it error for the prosecutor to inquire into defendant’s previous acquaintance with the arresting officer?

On October 10, 1979, police officers Doty, Thurman and Wolfe went to defendant’s apartment to arrest him and his brother, Randy. Deputy Doty was dressed in his official uniform, and Investigator Thurman wore plain clothes. The record is silent as to the attire of Deputy Wolfe.

There is conflicting evidence as to what occurred during the course of the arrest. The officers testified that they announced their purpose prior to entering the apartment. They further stated that defendant ran to the rear of the apartment, at which time Doty pursued him and attempted to handcuff him. A scuffle ensued, during which the officer “kneed” the defendant in the chest area. Defendant eventually ceased resistance.

At the conclusion of Doty’s direct examination, he described in detail the outfit he wore on the day of defendant’s arrest. He testified that he had on his uniform, an official hat, and a number of badges identifying him as a deputy sheriff. Further, he stated that he was wearing an equipment belt which contained a holster and weapon, handcuffs, and a nightstick. After eliciting this testimony, the prosecutor asked Doty whether he had been acquainted with the defendant prior to this incident. An objection to the question was overruled, and Doty responded “yes.”

Defendant’s testimony indicated that he did not resist Doty. He claimed that he was walking toward the rear of the apartment to leave for his mother’s nearby residence and consult her about the matter. Doty allegedly followed him into the kitchen, pushed him up against the wall, and handcuffed him.

Randy Stover also testified for the defense. During cross-examination, he stated that he was not told he was under arrest prior to being handcuffed. The prosecutor then asked if he pleaded guilty to a resisting-arrest charge arising out of the same incident. Defendant objected, and the court requested a side-bar conference. Thereafter, the judge overruled the objection. The grounds upon which defendant objected are not disclosed in the record. Following the judge’s ruling, Randy admitted that he entered a guilty plea to the charge. The prosecutor then asked if he had not just told the jury that he was never informed he was arrested. Defendant objected on the basis that the question was asked and answered. The objection was overruled, and Randy responded “yes.” During closing argument, the State emphasized the alleged inconsistency between Randy’s testimony and his prior guilty plea.

The jury found defendant guilty of resisting or obstructing Deputy Doty, but not guilty of resisting Investigator Thurman, who had been dressed in plain clothes. Defendant was sentenced to one year’s probation, with the condition that he spend 15 weekends in jail and pay a $100 fine and court costs.

A threshold question concerns the reviewability of defendant’s contention that his brother was improperly impeached with evidence of his prior guilty plea. As noted earlier, defendant objected to this testimony, but the record is silent as to the reason. However, the specific ground for the objection was included in his post-trial motion. A primary purpose of the post-trial motion is to allow trial judges an opportunity to consider the litigants’ arguments and assess his rulings. (People v. Adkisson (1980), 83 Ill. 2d 1, 7-8; Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 349-50.) Since the alleged error may have been specifically asserted at the unrecorded side-bar conference and was specifically stated in the post-trial motion, we do not find that the objection was waived. See People v. Lykins (1979), 77 Ill. 2d 35, 38; People v. Precup (1978), 73 Ill. 2d 7, 19.

Defendant relies on People v. Montgomery (1971), 47 Ill. 2d 510, for the proposition that a codefendant cannot be impeached by evidence that he was convicted of a misdemeanor which does not involve dishonesty. In Montgomery, this court adopted proposed Federal Rule of Evidence 609 as the standard governing impeachment by evidence of a prior conviction. Although a slightly different version of Rule 609 was ultimately adopted for use in the Federal courts, we have adhered to the rule as originally proposed. (See People v. Spates (1979), 77 Ill. 2d 193, 200; Knowles v. Panopoulos (1977), 66 Ill. 2d 585, 587-88.) This rule provides, in relevant part (Proposed Fed. R. Evid. 609(a)):

“For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime, except on a plea of nolo contendere, is admissible but only if the crime, (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or (2) involved dishonesty or false statement regardless of the punishment unless (3), in either case, the judge determines that the probative value of the evidence of the crime is substantially outweighed by the danger of unfair prejudice.” (47 Ill. 2d 510, 516.)

In the instant case, there is no question that the conviction fails to meet either test enunciated in Montgomery. Resisting or obstructing a peace officer is a misdemeanor which clearly does not involve dishonesty or a false statement.

The State, however, contends that the Montgomery decision is inapplicable because evidence of the guilty plea has relevance independent of its use as a prior conviction. Relying on People v. Sullivan (1978), 72 Ill. 2d 36, it argues that the guilty plea should be admissible for impeachment purposes as a prior inconsistent statement.

In Sullivan, it was recognized that evidence that a codefendant pleaded guilty to the same offense for which defendant stands trial is admissible for purposes of impeaching the codefendant. (72 Ill. 2d 36, 42; see Annots., 48 A.L.R.2d 1004 & 1016 (1956), and cases cited therein.) This principle, considered within the context of the case, related to impeachment by a prior conviction, and merely articulates the holding in People v. Montgomery (1971), 47 Ill. 2d 510. The guilty plea involved in Sullivan related to a felony offense, which is otherwise admissible for impeachment purposes. Thus, this case does not support the State’s contention that a guilty plea, inadmissible under Montgomery as evidence of a prior conviction, may nevertheless be admissible as a prior inconsistent statement.

“A defendant who is separately tried is entitled to have his guilt or innocence determined upon the evidence against him without being prejudged according to what has happened to another.” (People v. Sullivan (1978), 72 Ill. 2d 36, 42.) Although a witness’ prior convictions may be admissible to attack his credibility, admissibility is limited to the defined standards set forth in proposed Federal Rule 609. The State should not be allowed to circumvent this rule by labeling a guilty plea as evidence of a prior inconsistent statement. To condone this practice would virtually eviscerate the Montgomery holding.

Further, the jury was not cautioned to disregard the improper evidence. Indeed, the prosecutor consistently emphasized, in his closing argument, that defendant’s brother pleaded guilty to the offense in question. The implication was that defendant’s guilt could be gauged accordingly. Under like circumstances, it has been held that evidence of a codefendant’s guilty plea constituted reversible error. (People v. Sullivan (1978), 72 Ill. 2d 36.) Similarly, it cannot be said here that the erroneous admission of the evidence did not prejudice defendant’s case. We therefore hold that, under these circumstances, evidence of the witness’ prior guilty plea constituted reversible error, entitling the defendant to a new trial. See People v. Godsey (1978), 74 Ill. 2d 64, 73.

The final issue relates to the prosecutor’s inquiry into defendant’s previous acquaintance with the arresting officer. The State first contends that the question was probative of the issue of defendant’s knowledge that Doty was a police officer. Since knowledge is an essential element of the offense charged, it is argued that the deputy’s testimony was relevant. However, as defendant asserts, his knowledge of Doty’s status was already clearly established. The police officer testified at length as to his official attire on the day of the arrest. Therefore, defendant’s knowledge was no longer at issue.

The State next argues that the question did not provide a basis from which the jury could infer that defendant had previously engaged in illegal conduct. It has been held that evidence that the arresting officer was previously acquainted with defendant does not necessarily imply a criminal record. (People v. Rogers (1940), 375 Ill. 54, 59.) However, under the circumstances of this case, there is no apparent reason why the prosecutor would inquire into defendant’s previous acquaintance with Doty unless an implication of prior criminal activity was intended. We trust that on retrial such inquiry will not recur.

For the reasons stated herein, the appellate court judgment is affirmed.

Judgment affirmed.

JUSTICE SIMON,

specially concurring:

I disagree with the majority that the defendant’s witness was improperly impeached.

The defendant and his brother, Randy Stover, were both charged with resisting a peace officer, a misdemeanor under Illinois law (Ill. Rev. Stat. 1979, ch. 38, par. 31—1). At the defendant’s trial, Randy testified that the arresting officers had not informed them that they were under arrest. His testimony, however, was impeached by his admission on cross-examination that earlier he had pleaded guilty to the charge, a plea which the State argued was inconsistent with his testimony at trial.

The defendant now relies on People v. Montgomery (1971), 47 Ill. 2d 510, to support his contention that Randy Stover was improperly impeached. The majority accepts this argument, notwithstanding the State’s contention that the plea constituted a prior inconsistent statement and therefore was outside the ambit of Montgomery. I believe the court may have been too hasty in rejecting the State’s argument.

People v. Montgomery held that impeachment by prior conviction is proper only if the conviction so used was for either a misdemeanor involving dishonesty or a felony, and the trial judge determines that its probative value substantially outweighs the risk of undue prejudice. Convictions for misdemeanors not involving dishonesty are excluded altogether; the trial judge is afforded no discretion to allow them into evidence. The court modeled the rule on proposed Federal Rule of Evidence 609 and has since applied it in such cases as People v. Spates (1979), 77 Ill. 2d 193, and Knowles v. Panopoulos (1977), 66 Ill. 2d 585.

I believe the court in People v. Montgomery used the words “impeachment by prior conviction” as a term of art. The rule was meant to apply only to impeachment by evidence of general bad character and not to other kinds of impeachment, such as by evidence of a prior inconsistent statement. It prohibits suggestions by counsel that the witness is dishonorable and generally unworthy of belief as evidenced by his criminal conviction unless the conviction was for a very serious crime or one closely associated with the characteristic of dishonesty. The connection between less serious crimes not involving dishonesty and the truthfulness of the witness’ testimony is thought to be too weak to justify the risk that jurors, in their zeal to find the truth in the midst of conflicting testimony as expeditiously as possible, might overemphasize the witness’ conviction to the detriment of their function as fact finders.

The rule should not be applied so that parties are forbidden to point out that the witness previously contradicted his present testimony or that the witness is biased, merely because the prior inconsistent statement or the source of the bias happens to be evidence of a prior conviction for a misdemeanor. Such impeachment evidence may be crucial in establishing the falsity of the witness’ testimony, far more valuable than mere proof of bad character. Its value may outweigh the risk that the jury may misuse or overemphasize the information. It therefore must not be mechanically excluded from consideration.

The problem with extending People v. Montgomery to cover impeachment by proof of prior inconsistent statement, bias, or the like should be apparent. Assume a criminal case in which the State’s star witness has been out to get the defendant, a former prosecutor, ever since the defendant prosecuted him on a charge of misdemeanor assault. It can hardly be argued that the defendant would be precluded from cross-examining the witness for bias. Similarly, if a defense witness in a criminal trial attempts to bolster his credibility by falsely testifying that he is such a law-abiding citizen that he has never committed any crime and never even received a speeding ticket, when in fact he has had 50 such tickets and has pleaded guilty to charges of assault five times, it seems unsupportable to prohibit examination on such an issue. Yet if the rule announced in People v. Montgomery were to be applied to all attempts at impeachment, as the majority apparently advocates, the evidence would have to be excluded.

United States v. Johnson (5th Cir. 1976), 542 F.2d 230, in interpreting Federal Rule of Evidence 609, which like the rule in Montgomery was derived from proposed Federal Rule of Evidence 609, provides support for my conclusion that Montgomery is inapplicable in the case now before us. In Johnson, a Federal appellate court held that the prohibition against the use of felony convictions that are more than 10 years old which Rule 609 establishes does not apply when the fact of the conviction tends to establish a motive for lying or contradicts statements made by the witness when testifying. The court stated:

“We do not believe Rule 609 was meant to cover this particular species of impeachment use of a prior conviction. Rule 609 was crafted to apply in those cases where the conviction is offered only on the theory that people who do certain bad things are not to be trusted to tell the truth. Here the evidence had a different, surer value in that it directly contradicted the position taken by the witness.” 542 F.2d 230, 234-35.

The notes of the Senate Committee on the Judiciary, which reviewed the proposed Federal rules of evidence, indicate that proposed Rule 609 was not meant to apply to all prior criminal convictions offered to impeach a witness regardless of the theory upon which they were submitted. Although not a model of clarity, the notes appear to state that notwithstanding proposed Rule 609, impeachment by proof of motive, knowledge and the like are still permissible even though the impeachment requires proof of a prior conviction. The notes also state that, again notwithstanding the proposed rule, a defendant’s misrepresentations concerning the existence or nature of prior convictions may be met with rebuttal evidence including records of such prior convictions. Those records may also be offered to rebut a defendant’s representation that he could not have committed the crime because of his lack of propensity to commit such deeds. (S. Rep. No. 1277, 93d Cong., 2d Sess. (1974), U.S. Code Cong. & Ad. News 7051, 7061.) Unfortunately, the use of guilty pleas as prior inconsistent statements is not discussed. I believe this is not because the proposed rule was meant to prohibit them, but rather because the committee did not foresee at the time that a guilty plea might be so used.

Moreover, Illinois courts have held People v. Montgomery inapplicable to impeachment by means other than proof of general bad character and propensity to lie. In People v. Dietschweiler (1974), 21 Ill. App. 3d 707, 717, for example, the court refused to prohibit proof of the defendant’s previous speeding violations, because the defendant, who was on trial for involuntary manslaughter, had testified on direct examination that he had had no previous speeding violations. Holding that the Montgomery rule was not applicable, and instead relying on People v. Nastasio (1963), 30 Ill. 2d 51, cert. denied (1964), 377 U.S. 911, 12 L. Ed. 2d 181, 84 S. Ct. 1173, a case decided under the pre-Montgomery rule against using convictions for non-infamous crimes in impeachment, the court stated:

“It was entirely proper for the State to impeach him by contradiction of his own testimony given on direct examination. The State was entitled to correct the false impression given by defendant’s direct examination regarding his alleged lack of *** speeding violations.” 21 Ill. App. 3d 706, 717.

Accord, People v. Brown (1978), 61 Ill. App. 3d 180, 184; People v. Johnson (1976), 42 Ill. App. 3d 194, 198; People v. Kellas (1979), 72 Ill. App. 3d 445, 452.

Similarly, impeachment by evidence of bias has been held not to be precluded by the Montgomery rule or by Montgomery-type rules. In People v. Galloway (1974), 59 Ill. 2d 158, the State’s case against an accused narcotics peddler was based solely on the testimony of a witness with a long arrest record. The charges stemming from her most recent arrests, for theft and armed robbery, were stricken on the State’s motion within weeks of her taking the witness stand against the defendant. The court said:

“While neither evidence of an arrest nor indictment may ordinarily be admissible to impeach credibility generally, an arrest or charge of a crime may be shown or inquired into, where it reasonably could tend to show that the witness’s testimony might be influenced by interest, bias, or motive to testify falsely.” (59 Ill. 2d 158, 163.)

Galloway was based on People v. Mason (1963), 28 Ill. 2d 396, a case decided before Montgomery but still during a period in which mere arrests could not be used to impeach a witness’ credibility. The conclusion in Mason was identical to that in Galloway.

Allen v. City of Ottawa (1980), 80 Ill. App. 3d 1032, demonstrates that the rule in Galloway and Mason applies in all cases, not merely in the case of a criminal defendant. In Allen, the defendant city of Ottawa sought to impeach plaintiffs witness with evidence that he had been arrested by Ottawa police on 10 or more occasions. This, the defendant contended, demonstrated bias. In rejecting plaintiffs argument based on Montgomery and approving admission of the evidence, the court stated:

“ '[A] witness *** in a civil case, may have a motive to testify falsely about a particular matter. No useful purpose would be served in undertaking to enumerate even some of the innumerable motives that may exist. Suffice it to say that evidence of such motive is to be distinguished from that which merely tends to discredit the witness generally.’ ” 80 Ill. App. 3d 1032, 1037, quoting, People v. Mason (1963), 28 Ill. 2d 396, 402, quoting, 3 Wigmore, Evidence sec. 967, at 186 (1962 Supp.).

This rale has been followed extensively. (See, e.g., People v. Eddington (1979), 77 Ill. 2d 41, 45-46; People v. Vagil (1973), 9 Ill. App. 3d 726, 729; People v. Kellas (1979), 72 Ill. App. 3d 445.) All of these cases were decided after this court decided People v. Montgomery. In Kellas, the appellate court discussed at length the difference between impeachment by evidence of a prior conviction used to prove general bad character and unreliability and impeachment by evidence of a prior conviction used to prove bias. It discussed People v. Montgomery only in the section of the opinion dealing with the former. The opinion makes it clear that convictions inadmissible under People v. Montgomery may nonetheless be admissible to prove bias.

The meaning of these Illinois cases is clear. While People v. Montgomery governs the ordinary case of impeachment by prior conviction, it does not govern cases in which the conviction is offered for some purpose other than to generally discredit the witness’ character. A conviction that shows the witness may be biased or contradicts specific testimony by the witness is far more probative of the truthfulness of the witness’ testimony than a conviction that merely impeaches his character. Similarly, a guilty plea that is inconsistent with a particular statement made by the witness while testifying has far greater value in impeaching a witness than a mere attempt to show that because he has been convicted of a crime his general trustworthiness must be doubted. The cases cited above indicate that the delicate balance of interests arrived at in People v. Montgomery should therefore not apply. I regret that the majority has chosen to ignore the wisdom they contain.

In general, our society embraces John Milton’s philosophy that truth will ultimately triumph over falsity and that there is therefore no need to suppress any information, true or false. The law of evidence, however, suppresses concede dly relevant and often concede dly true information in an effort to find the truth. It is thought to be the price we pay for speedy trial by jury. The theory behind it holds that while truth may triumph over falsity in the long run, 12 jurors, none of whom are experienced at making such decisions, may not be able to sift through conflicting and often emotionally charged evidence and reach the proper verdict in the time they have. Some evidence may even hinder them. Nevertheless, it is a serious and potentially dangerous departure from our general philosophy. More facts tend to be better than fewer facts. A jury cannot function properly if it is needlessly deprived of relevant information. This court must not, therefore, engage in overkill in its effort to rid the courtroom of unduly prejudicial evidence.

Hard and fast rules prohibiting the introduction of evidence without regard to its probative value are not uncommon. It is important to understand, however, that the ultimate issues in any evidence question are: Is the evidence relevant to a material issue and is its probative value in establishing that point likely to outweigh the risk that a jury will misuse or overvalue it? Hard and fast rules like that' in Montgomery are simply the result of experience. Certain situations present themselves so often that it becomes apparent that, in such a situation, the probative value of the evidence will never outweigh the risk of undue prejudice. Extending such a rigid rule of exclusion to include broad classes of situations for which it was not intended and for which the probative value of the evidence has not been shown to be consistently lacking in the face of the risk of undue prejudice should be carefully avoided.

My own analysis of the issue is less rigid than the majority’s. Under Illinois law, prior convictions of the accused are completely prohibited for some purposes (People v. Harvey (1957), 12 Ill. 2d 88, 91) and allowed only if the probative value is not outweighed by the risk of undue prejudice for others (e.g., People v. Montgomery (1971), 47 Ill. 2d 510, People v. Kirkwood (1980), 82 Ill. App. 3d 252). No less delicate a treatment should be afforded convictions of accomplices for the crime in issue. I believe the proper approach to this question of first impression involves two questions: whether Randy Stover’s guilty plea was in fact a prior inconsistent statement and whether its value in discrediting the witness outweighs the risk of undue prejudice to the defendant.

My view is that Randy Stover’s guilty plea was in fact a prior inconsistent statement. A guilty plea admits all facts alleged in the indictment that constitute elements of the offense. (People v. Langford (1946), 392 Ill. 584.) Randy Stover’s plea thus specifically admitted that he knew he was under arrest, although not necessarily that he was so told. A prior inconsistent statement need not be so inconsistent with the witness’ testimony, however, that it belies any harmonious interpretation, no matter how unlikely. Rather the test that is usually applied is that the statement must have a reasonable tendency to discredit the direct testimony on a material matter. (People v. Brown (1980), 91 Ill. App. 3d 582; People v. Thomas (1979), 72 Ill. App. 3d 186; People v. Rainford (1965), 58 Ill. App. 2d 312.) The possibility that Randy Stover may have been aware that he was being arrested without being told, therefore, does not prevent his plea from constituting a prior inconsistent statement. The fact that Randy Stover’s assertion of guilt may have been false and made under pressure is not relevant. Any evidence may be false. The witness can be given a chance to explain it. Moreover, the guilty plea was not introduced to prove that Randy Stover was guilty, but only that he had contradicted his testimony in the past.

The trial judge in this case apparently determined that the probative value of Randy Stover’s guilty plea in impeaching his testimony outweighed the risk of undue prejudice to the defendant. I see no abuse of discretion here. (See People v. Kirkwood (1980), 82 Ill. App. 3d 252.) In fact, in People v. Sullivan (1978), 72 Ill. 2d 36, this court noted in dictum that a guilty plea by an accomplice may be used to impeach the accomplice’s testimony. Surely the trial judge could not have abused his discretion in allowing such evidence in this case.

I nonetheless concur in the majority’s judgment. Because I believe it was error to allow officer Doty to testify that he was acquainted with the defendant, I, too, would remand this cause to the trial court for a new trial.