author: JUSTICE MILLS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT EMANUAL JONES, Defendant-Appellant.
    Fourth District
    No. 4—84—0753
    Opinion filed May 2, 1985.

      Daniel D. Yuhas and Judith N. Kirby, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Eider man, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLS

delivered the opinion of the court:

Burglary (three counts) and possession of burglary tools.

Jury: guilty.

Judge: six years for each burglary, two for the possession — all concurrent.

We affirm.

(Jones does not challenge his conviction — only the sentencing.)

I

Jones first contends that the trial court erred in not advising him of his right to elect treatment under the Alcoholism and Substance Abuse Act. (Ill. Rev. Stat., 1984 Supp., ch. HV-k, par. 6301 et seq.) This admonition is mandated by section 23 of the Act if the trial court has reason to believe that the offender is an addict, or the offender so states, and the court finds that he meets the eligibility criteria found in section 21. (Ill. Rev. Stat., 1984 Supp., ch. HV-k, pars. 6323, 6321; see also People v. Richardson (1984), 104 Ill. 2d 8, 470 N.E.2d 1024.) Jones argues that there was reason to believe he was an addict.

At trial, the evidence was that defendant burglarized a pickup truck and several cars parked on the Goodyear lot in downtown Champaign. He was seen carrying tools and rummaging through the vehicles shortly after the store closed. As the police arrived, he hid underneath the pickup truck, but his location was pointed out by an onlooker. The radio had been pried from the dash of one of the cars defendant had entered. Some knobs and plastic trim rings like those missing from the radio were in defendant’s possession. Two screwdrivers were inside one of the automobiles defendant had entered, and pliers were found in another. Defendant told the arresting officer— and repeated at trial — that permission had been given him to be on the Goodyear lot. The service manager confirmed that he had agreed to let defendant work on an abandoned car which defendant had expressed an interest in buying. This “junk” (which was not the subject of the burglary charges) was the only vehicle defendant had been authorized to enter.

Jones, the defendant, testified that he opened several ear doors to lock them in order to insure nothing would be stolen, but discovered the locks did not function properly. This was also true of the rear hatch on the pickup truck. He denied loosening a car radio or having an intent to steal anything from the vehicles. According to defendant, he hid from the police because he “was sort of high that day” and had been mistreated by law enforcement officers in the past. Jones said that he was “high” from drinking alcohol earlier in the day with a friend.

Following trial and conviction, the presentence report showed that Jones left high school in 1976 and had a sparse employment history. His criminal record includes prior convictions for burglary and felony theft, plus a juvenile adjudication for aggravated assault. He is generally in good health but of limited intelligence. One section of the presentence report was devoted to alcohol and drug abuse:

“Robert admitted he does drink alcohol and use drugs. Mr. Jones reported his drug use includes amphetamines, barbiturates and cocaine. Robert relayed to this officer alcohol and drugs are a problem for him because they get him in trouble. Mr. Jones indicated he has received out-patient counseling and detoxification at Prairie Center. As of this writing, no information has been received from Prairie Center concerning the defendant’s prognosis from there. On October 9, 1984, this officer telephoned Prairie Center about Mr. Jones. On 8/2/83 the defendant was processed for a full intake as an out-patient client. Nancy Mercer felt the defendant was not appropriate for residential treatment. Mr. Jones utilized the Detox Unit at Prairie Center seven times. Robert’s first detoxification occurred on 8/23/82 and his last visit was on 7/19/83. Mr. Jones never attended any out-patient counseling sessions according to the information given to this officer by Mary Thatch of Prairie Center.”

At the sentencing hearing, defense counsel made no mention of a drug problem and requested the minimum period of incarceration.

Although Jones apparently has experienced problems due to alcohol and drug abuse, this did not give the trial court reason to believe he was an addict as that term is defined in the Act:

“ ‘Addict’ means any person who habitually uses any drug, chemical, substance or dangerous drug other than alcohol so as to endanger the public morals, health, safety or welfare or who is so far addicted to the use of a dangerous drug or controlled substance other than alcohol as to have lost the power of self control with reference to his addiction. (Ill. Rev. Stat., 1984 Supp., ch. HV-h, par. 6304.1.)

Here, the facts are similar to those in People v. Futia (1983), 116 Ill. App. 3d 68, 452 N.E.2d 109, decided under the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1983, ch. 911/2, par. 120.1 et seq.), which the new law has supplanted. The relevant provisions of both acts are identical. The presentence report in Futía stated that the defendant “is an alcohol and drug abuser, specifically heroin.” He had briefly — and unsuccessfully — participated in two drug rehabilitation programs. As here, the defendant was in apparent good health and had been incarcerated for a substantial period of time without any indication of withdrawal symptoms. On appeal, this court found nothing in the record which would give the trial judge reason to believe that at the time of sentencing the defendant was an addict. The same conclusion was reached in People v. Jones (1981), 97 Ill. App. 3d 619, 423 N.E.2d 235, where the offender was in sound health but, according to the presentence report, had used heroin in the past and had a continuing problem with drugs and alcohol.

A more solid indication of drug addiction occurred in People v. Chapul (1981), 100 Ill. App. 3d 982, 427 N.E.2d 595, and People v. Beasley (1982), 109 Ill. App. 3d 446, 440 N.E.2d 961, both cited by defendant. In Chapul, an appeal from convictions for reckless conduct and two counts of aggravated assault, the defendant testified that he was under the influence of Quaaludes and alcohol. He had enrolled in a residential rehabilitation program about a month prior to sentencing and was still there. A letter from defendant’s counselor stated defendant was in need of continued therapy. In addition, he had a number of prior drug-related convictions. In Beasley, defendant Banks (age 23) had used marijuana in high school and had used heroin, cocaine, and “tees and blues” regularly until his incarceration. The trial judge in each case erred by not informing the defendant of the possible disposition under the Dangerous Drug Abuse Act.

But here, Jones testified that he had been drinking on the day in question. His testimony and his stays at a detoxification center suggest alcoholism rather than drug addiction. And although he related his problems with drug usage, there is no indication drugs have impaired his health or that he suffered withdrawal pains while in jail awaiting trial and sentencing. As in Futía and Jones, the information conveyed to the trial judge was insufficient to give reason to believe Jones was a drug addict.

He further argues that this court in Futía improperly equated “reason to believe” with “probable cause.” The phrases were said to be semantic equivalents more recently in People v. Braje (1985), 130 Ill. App. 3d 1054, which cited Futía with approval. Black’s Law Dictionary 1081 (5th ed. 1979) defines probable cause as a “reasonable ground for belief in the existence of facts warranting the proceedings complained of.” Recognizing that language is imprecise, the two concepts clearly may be interchanged without damage to the legislative intent. It is legal and semantical quibbling to say Futía and Braje have erected a higher standard.

In sum, the record indicates that defendant is a drug abuser but not an addict. Thus, the trial court was not required to inform him of the alternative treatment plan available to eligible addicts under the Act.

II

Jones also contends that it was an abuse of discretion to sentence him to concurrent six-year terms and asks that the sentences be reduced to three years, the statutory minimum for a Class 2 felony. (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8—1(5).) (Because he had previously been convicted of another Class 2 felony within 10 years, he was not a candidate for probation. Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 5—3(c)(2)(F).)

This defendant was 23 years old, unemployed, had no dependents, and had dropped out of high school in 1976 during his freshman year. A prior burglary conviction in 1981 resulted in 30 months’ probation with conditions that he serve 120 days in jail and undergo psychiatric treatment. In 1983, he was convicted of felony theft and placed on probation for 18 months. He was sporadic in contacting the probation department, and his adjustment was considered very poor. As a juvenile in 1977, defendant was committed to the Department of Corrections for aggravated assault. The dispositional report presented to the court at that time concluded that defendant (then 15 years of age) displayed “a predelinquent pattern and delinquent behavior including bicycle thefts, shoplifting, verbal and physical threats against numerous people, expulsion from school due to truancy and physical aggression ***.” He allegedly was an abused child and was given psychological evaluations and in-patient counseling as a minor. His minister testified in mitigation and stated that defendant had been attending church services for several years although his attendance was spotty. And the State’s Attorney testified that as he was leaving his office immediately after Jones’ trial, defendant yelled, “[Mjother fucking white bitch state’s attorney, I’m going to kill you when I get out.” (This verbal attack evidently was directly at an assistant State’s Attorney.)

A reasoned judgment as to a proper sentence depends on many factors, including the defendant’s general moral character, mentality, habits, social environment, age, inclination to commit crimes, and the stimuli which motivated his conduct. (People v. Dukett (1974), 56 Ill. 2d 432, 308 N.E.2d 590.) While the offender’s youth and potential for rehabilitation must be considered, of equal importance are the nature of the crime, protection of the public, deterrence, and punishment. (People v. West (1977), 54 Ill. App. 3d 903, 370 N.E.2d 265.) Furthermore, it is clearly settled that the sentence imposed by a trial judge will not be disturbed absent an abuse of discretion. People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.

Here, the burglaries were committed while Jones was on probation for two previous felony convictions, and his adjustment to probation was rated very poor. In light of his criminal record and the lack of any meaningful sign of rehabilitation, we cannot say that a six-year sentence is excessive or that the sentencing judge abused his discretion.

Affirmed.

WEBBER and MORTHLAND, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE NASH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOE CHARLESTON, Defendant-Appellant.
    Second District
    No. 83—0027
    Opinion filed April 26, 1985.

      Michael M. Melius, Public Defender, of Waukegan, and Hatchett, DeWalt, Hatchett & Hall, of Pontiac, Michigan, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Sally A. Swiss, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE NASH

delivered the opinion of the court:

After trial by jury defendant, Joe Charleston, was convicted of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1) and sentenced to a term of 28 years’ imprisonment. He appeals, contending the trial court erred by: (1) excluding evidence of decedent’s propensity for violence; (2) precluding defendant from impeaching a witness; (3) permitting the State to cross-examine an expert witness regarding a testing error he made in another case; and (4) that defendant was not proved guilty beyond a reasonable doubt.

Shortly after 7 p.m. on November 30, 1981, in the Ace of Clubs tavern located in Waukegan, Kenneth Smith, age 19 years, was killed by a single gunshot wound in the chest. At the time of the shooting the tavern was crowded with about 60 patrons, but descriptions of the occurrence by the witnesses varied to a certain extent.

Michael Smith, a brother of decedent, testified that he was talking to Buford Brown near the back of the tavern; he heard his brother Kenneth shout and saw Kenneth and defendant standing face to face arguing. Kenneth said, “What is you going to do: shoot me, or what?” Defendant reached under his coat and produced a black .38 revolver in his right hand, pointed it at Kenneth and shot him in the chest. Defendant then waved the gun and instructed the crowd not to move, fired a shot in the air and ran out of the door.

Buford Brown testified he heard an argument between decedent and defendant and saw defendant pull a gun from underneath his coat and shoot decedent. On cross-examination, Brown testified he did not believe Michael Smith was present during the incident, but came in later.

Thomas Jenkins testified he came out of the restroom and saw defendant and decedent arguing. Defendant told decedent he had bumped him and asked if decedent was trying to knock him down. Decedent apologized, but defendant said, “I’ll blow you away.” Defendant dropped the beer he held in his hand and slapped decedent across the face. Defendant then produced a pistol and stuck it in decedent’s stomach. Jenkins testified he was frightened and went back into the washroom until it was safe to come out. He heard two shots and came out, seeing that the barroom was then empty except for the body on the floor.

Defendant also testified, stating he was standing at the bar drinking beer when decedent pushed into him, swore at him and said he knew defendant as a man who formerly went with decedent’s cousin. The man called defendant names and pulled a gun from under his coat. Defendant testified he grabbed decedent’s wrist with both hands and during the struggle the gun went off while still in decedent’s hand. He fell and defendant pulled the gun from decedent’s hand and shot into the ceiling to back off the crowd. He ran out of the tavern and arrived at the North Chicago police station, two to three miles away, 20 minutes later, where he told officers he had been involved in a shooting and gave a statement. Defendant testified he had the gun when he ran out of the building, but did not know what became of it as he was frightened and nervous. Ownership of the gun was never established nor was it located.

Jurlene Brown testified defendant was drinking his beer when decedent came up and started an argument threatening defendant’s life. Decedent reached for his left side and defendant grabbed his wrist; they struggled and a gun went off. The witness stated she did not actually see the gun in anyone’s hand until after the first shot, at which time defendant had it.

Ronnie Garland also testified to the occurrence, stating defendant and decedent had a little argument and decedent made a move with his left hand. Garland then heard a shot, but his view was obstructed and he didn’t see the gun until after decedent was shot and defendant was then holding it.

I

Exclusion Of Evidence Of Decedent’s Propensity For Violence

Prior to trial, the State moved in limine to bar defendant from introducing any evidence of or commenting on decedent’s record of arrests, convictions or his reputation in the community. As a basis for the motion, the State noted that defendant in statements to police officers said he did not know the decedent “relative to the reasonableness of his action in defending himself” and cited People v. Wolski (1980), 83 Ill. App. 3d 17, 403 N.E.2d 528. At the hearing of the motion, defendant’s counsel suggested a theory of self-defense may be offered in trial, that defendant would testify he knew decedent generally in the community, and that “he had quite a series of run-ins with the law, and these led to his propensity for violence and for anti-social conduct.” The trial court granted the motion in limine, as there was no showing defendant knew the decedent’s reputation, and barred mention of it until such time as evidence of defendant’s knowledge ■ was produced in trial.

Defendant contends that where evidence of the deceased’s propensity for violence and aggression helps corroborate defendant’s testimony that decedent was the initial aggressor, defendant’s knowledge of that evidence is immaterial and the trial court erred in excluding it. He relies upon People v. Gossett (1983), 115 Ill. App. 3d 655, 451 N.E.2d 280, appeal denied (1983), 96 Ill. 2d 545, People v. Buchanan (1980), 91 Ill. App. 3d 13, 16, 414 N.E.2d 262, and People v. Stombaugh (1972), 52 Ill. 2d 130, 284 N.E.2d 640. The State responds the issue is waived as defendant failed to make an offer of proof as to the victim’s prior record of violent behavior and the only suggestion of such conduct in the record was defendant’s attorney’s statement decedent had “run-ins with the law.”

In People v. Lynch (1984), 104 Ill. 2d 194, 470 N.E.2d 1018, decided after the trial of this case, our supreme court considered the varied opinions of the appellate court on this issue and resolved it. The court determined that evidence of a victim’s aggressive and violent character may be offered to support a theory of self-defense in two ways: first, where defendant’s knowledge of the victim’s violent tendencies may have affected defendant’s perception of and reaction to the victim’s behavior and second, where evidence of the victim’s propensity for violence tends to support the defendant’s version of the facts where there are conflicting accounts of what happened. The court noted that while the first basis for such evidence necessarily requires knowledge by defendant of the victim’s violent nature, the second basis does not. It held that “when the theory of self-defense is raised, the victim’s aggressive and violent character is relevant to show who was the aggressor, and the defendant may show it by appropriate evidence, regardless of when he learned of it.” People v. Lynch (1984), 104 Ill. 2d 194, 200, 470 N.E.2d 1018.

In the present case, however, defendant did not offer a theory of self-defense, nor was the jury so instructed. He argued the shooting was an accident, with the gun being fired while decedent was holding it. In his post-trial motion, defendant emphasized the defense was not self-defense, but was accident. In this court, defendant characterizes the defense as “a hybrid self-defense/accident theory” under which decedent’s propensity for violence was relevant, even though defendant was unaware of it, to corroborate his claim decedent acted aggressively and violently, citing People v. Buchanan (1980), 91 Ill. App. 3d 13, 15, 414 N.E.2d 262.

Self-defense is an affirmative defense which, if raised by evidence, requires that the State prove defendant’s guilt beyond a reasonable doubt as to that issue and all other elements of the offense charged. (See People v. Zolidis (1983), 115 Ill. App. 3d 669, 450 N.E.2d 1290; People v. Ingram (1983), 114 Ill. App. 3d 740, 449 N.E.2d 564; Ill. Rev. Stat. 1981, ch. 38, pars. 3 — 2, 7 — 1.) The defense is not applicable where defendant asserts the gun discharged accidentally in a struggle. (People v. Purrazzo (1981), 95 Ill. App. 3d 886, 893, 420 N.E.2d 461, cert denied (1982), 455 U.S. 948, 71 L. Ed. 2d 661, 102 S. Ct. 1448.) Self-defense relates to knowingly and intentionally using force to deter another; for it to be present defendant must have fired the gun intentionally and, where an accident is claimed, self-defense is out of the case. People v. Dzambazovic (1978), 61 Ill. App. 3d 703, 717, 377 N.E.2d 1077, appeal denied (1978), 71 Ill. 2d 619.

The unspecified evidence of the victim’s propensity for violence was properly excluded by the trial court as such evidence, if it existed, may be shown only where defendant has raised the theory of self-defense. (See People v. Lynch (1984), 104 Ill. 2d 194, 200, 470 N.E.2d 1018.) Defendant did not do so in this case, and the only apparent purpose served by such information here would be to generally disparage the victim of the offense in the eyes of the jury for defendant’s benefit. He may not properly do so.

There is a second basis upon which the exclusion of such evidence would be upheld in this case. As we have noted, the suggested propensity for violence of decedent has been described in this record only by defendant’s counsel’s unsupported assertion the victim had “run-ins with the law.” No offer of proof was made describing the nature of those matters, and neither the trial court nor this court on review are offered an opportunity to determine whether such “run-ins” actually demonstrate general aggressive propensities. Compare People v. Lynch (1984), 104 Ill. 2d 194, 202-04, 470 N.E.2d 1018.

II

Impeachment Of State’s Witness

Defendant contends the trial court also erred by refusing to permit impeachment of Michael Smith with evidence the witness had pleaded guilty to theft and was placed upon six months’ supervision in 1980 or 1981. The State objected first on the grounds there is no judgment of conviction entered where supervision is granted and thus no basis for impeachment. In an apparent reference to records of his office, the assistant State’s Attorney agreed Smith had been placed on supervision for theft which was terminated unsuccessfully, but neither he nor defendant’s counsel knew whether a judgment of convic- ■ tion had been then entered. The trial court stated that theft was an offense for which the witness could be impeached, but only if a judgment of conviction had been entered. Defendant was prohibited from questioning the witness as to that offense, but was given leave to recall him, presumably in the event evidence of a judgment of conviction was subsequently located. There is no further indication in the record as to the status of the theft offense, nor did defendant recall the witness.

Defendant argues that, as Michael Smith did not successfully complete the term of supervision, he did not then receive the benefits of discharge and dismissal of the theft charge which are incident to supervision (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 6—3.1(f)) and must be considered to have been convicted of the offense, even though judgment was never entered thereon. Defendant offers no relevant authority in support of this argument.

A “conviction” is defined as a judgment of conviction or sentence entered upon a plea of guilty or upon a verdict or finding of guilty. (Ill. Rev. Stat. 1981, ch. 38, par. 2 — 5.) Only a judgment of conviction may be used for purposes of impeachment and evidence of an arrest, indictment or of the actual commission of an offense may not be so used. (Knowles v. Panopoulos (1977), 66 Ill. 2d 585, 590-91, 363 N.E.2d 805; People v. Lashmett (1984), 126 Ill. App. 3d 340, 345, 467 N.E.2d 356.) Nor is a disposition of court supervision which has been successfully discharged a “conviction” which may be used for purposes of impeachment. (See People v. Miller (1981), 101 Ill. App. 3d 55, 427 N.E.2d 987; Ill. Rev. Stat. 1981, ch. 38, par. 1005-6-3.1(f).) In People v. Lashmett (1984), 126 Ill. App. 3d 340, 467 N.E.2d 356, it was determined that a verdict of guilty by a jury was not the equivalent of a conviction which contemplates more than a mere finding of guilt. See People v. Allen (1978), 71 Ill. 2d 378, 375 N.E.2d 1283; People ex rel. Grogan v. Lisinski (1983), 113 Ill. App. 3d 276, 446 N.E.2d 1251.

This court considered a similar question in People v. Kavanaugh (1980), 85 Ill. App. 3d 783, 408 N.E.2d 23, where the State sought to impeach defendant by his plea of guilty to burglary which, in that jurisdiction, was not a conviction under a first-offender statute. We held that it would be improper to introduce for impeachment evidence of a prior proceeding which did not result in a conviction. People v. Kavanaugh (1980), 85 Ill. App. 3d 783, 787, 408 N.E.2d 23; see People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695; People v. Mason (1963), 28 Ill. 2d 396,192 N.E.2d 835.

It was incumbent upon the defendant in this case to show that, in fact, a judgment of conviction had been entered if the witness failed to successfully complete supervision. (People v. Yost (1980), 78 Ill. 2d 292, 399 N.E.2d 1283; People v. DeSavieu (1983), 120 Ill. App. 3d 420, 458 N.E.2d 504, appeal denied (1984), 99 Ill. 2d 531.) Defendant did not do so and the trial court correctly declined to permit impeachment solely by evidence of the witness’ plea of guilty to theft.

Ill

Impeachment Of Expert Witness

Defendant asserts the trial court erred when it permitted the State to cross-examine his expert witness regarding a testing error made by the witness in a prior unrelated case.

A chemist employed by the Lake County coroner was called as an expert witness by defendant and testified decedent’s blood alcohol level was .228% and urine .281% at the time of death. Over objection, the State impeached the witness with evidence he once made an error in a prior blood test in another case. Defendant argues it is improper to cross-examine a witness as to irrelevant, immaterial or collateral matters (People v. McCorry (1972), 51 Ill. 2d 343, 351-52, 282 N.E.2d 425) and that the evidence was hearsay.

Matters of impeachment are within the trial court’s discretion and will be reversed only if abused to defendant’s prejudice. (People v. Schomer (1978), 64 Ill. App. 3d 440, 444, 381 N.E.2d 62, appeal denied (1979), 72 Ill. 2d 584; People v. Bruce (1975), 32 Ill. App. 3d 404, 407, 336 N.E.2d 354, appeal denied (1976), 61 Ill. 2d 602.) Cross-examination of an expert witness for the purpose of explaining, modifying or discrediting his testimony is proper. (People v. Conrad (1967), 81 Ill. App. 2d 34, 47-48, 225 N.E.2d 713, affd (1968), 41 Ill. 2d 13, 241 N.E.2d 423; see People v. Blakes (1976), 63 Ill. 2d 354, 348 N.E.2d 170.) This is the rule even though such examination may incidentally raise another matter. (People v. Poliquin (1981), 97 Ill. App. 3d 122, 136, 421 N.E.2d 1362, appeal denied (1981), 85 Ill. 2d 572.) The jury had a right to know the extent of the witness’ expert knowledge and experience; his credentials and past record were relevant. (Forest Preserve District v. Tabin (1969), 115 Ill. App. 2d 267, 278, 253 N.E.2d 99; see Mohr v. G.D. Searle & Co. (1979), 72 Ill. App. 3d 540, 390 N.E.2d 1214.) Wide latitude should be granted in cross-examination of an expert witness to test his opinion on subjects not of common knowledge. (People v. Crawford Distributing Co. (1978), 65 Ill. App. 3d 790, 799, 382 N.E.2d 1223, affd (1979), 78 Ill. 2d 70, 397 N.E.2d 1362.) People v. Rudi (1981), 94 Ill. App. 3d 856, 419 N.E.2d 646, appeal denied (1981), 85 Ill. 2d 572, upon which defendant primarily relies, is inapposite as the objected to cross-examination there went to collateral matters not raised by direct examination.

Defendant’s further argument that the impeaching evidence was hearsay is waived for failure to object on that ground in trial. (People v. Baker (1983), 114 Ill. App. 3d 803, 807, 448 N.E.2d 631.) In any event,' testimony offered solely for impeachment is not admitted to establish the truth of the stated facts (People v. Armstrong (1961), 22 Ill. 2d 420, 424, 176 N.E.2d 755), and the trial court did not err in permitting this impeachment.

IV

Reasonable Doubt

Defendant finally contends that the testimony of the State’s witnesses was contradictory and inconsistent, suggesting fabrication, citing People v. Williams (1976), 65 Ill. 2d 258, 357 N.E.2d 525. The State agrees there were numerous inconsistencies in the testimony of witnesses called by both it and the defendant, but argues that witnesses do agree on the essential issue that defendant produced a gun and shot decedent.

In cases where evidence has been found insufficient, it has been substantially more confusing, contradictory and less credible than in the present case. (See People v. Williams (1976), 65 Ill. 2d 258, 357 N.E.2d 525; People v. Hister (1975), 60 Ill. 2d 567, 328 N.E.2d 531.) A reviewing court may not substitute its judgment for that of the trier of fact as to questions involving weight of the evidence or credibility and will reverse only if the State’s evidence was so improbable, impossible or unsatisfactory as to raise a reasonable doubt of defendant’s guilt. (People v. Hubbard (1973), 55 Ill. 2d 142, 147, 302 N.E.2d 609; People v. Winfield (1983), 113 Ill. App. 3d 818, 828-30, 447 N.E.2d 1029, appeal denied (1983), 96 Ill. 2d 549.) A jury verdict based upon credible, substantial evidence is not made reversible because there was other evidence which, if believed, might have resulted in a different verdict. People v. Kelly (1956), 8 Ill. 2d 604, 615, 136 N.E.2d 785, cert, denied (1957), 353 U.S. 966, 1 L. Ed. 2d 915, 77 S. Ct. 1050.

Repetitions of past events in detail by several witnesses can be expected to generate contradictions and inconsistencies, but that is not necessarily indicative of falsehood. (See People v. Jordan (1967), 38 Ill. 2d 83, 230 N.E.2d 161.) Witnesses called by the State here testified defendant drew the gun and shot decedent; defense eyewitnesses conceded on cross-examination they didn’t see the gun until after the shooting, when defendant had it. There was sufficient evidence from which the jury could find defendant guilty beyond a reasonable doubt and we will not disturb its judgment. See People v. Warmack (1980), 83 Ill. 2d 112, 413 N.E.2d 1254.

Accordingly, the judgment of the circuit court is affirmed.

Judgment affirmed.

HOPE and SCHNAKE, JJ., concur.


author: PRESIDING JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL D. ELLIS, Defendant-Appellant.
    Fourth District
    No. 4—84—0649
    Opinion filed April 24, 1985.
    Daniel D. Yuhas and Diana N. Cherry, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas K. Deeper, State’s Attorney, of Quincy (Robert J. Biderman and Linda Welge, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

On July 14, 1984, following a jury trial in the circuit court of Adams County, defendant, Daniel Ellis, was convicted of murder and was subsequently sentenced to 40 years’ imprisonment. On appeal, defendant contends that (1) the trial court erred in denying his motion to suppress his pretrial statements to the police; and (2) he was denied a fair trial by (a) the exclusion of his offer of testimony concerning the homosexuality of the victim, and (b) the subsequent statement by the prosecutor in closing argument that no evidence was presented to corroborate the defendant’s testimony of the victim’s homosexuality. We affirm.

Defendant was charged by information on April 9, 1984, with felony murder, in that he caused the death of Phillip Heuser while committing an aggravated battery. The evidence was undisputed that Heuser died as a result of stab wounds which defendant inflicted on March 27, 1984, in an altercation which took place in and beside an automobile. Defendant contended that (1) the victim made homosexual advances upon him; (2) as he resisted, a fight ensued; (3) he then drew his knife as a preventive measure; and (4) in moving toward defendant, the victim impaled himself upon the knife.

The statement which defendant sought to suppress was one in which he admitted fighting with the victim and drawing the knife, and he asserted that the victim made a homosexual attack upon him in which the victim’s movement toward him caused the stabbing. After being taken into custody on April 6, 1984, defendant was given Miranda warnings, whereupon he requested counsel. Later that day, after consulting with his father, defendant consented to discuss the matter with police and made the admissions to the police that were contained in the statement. He maintains that the statement was taken from him without a knowing and voluntary waiver of his rights to remain silent and to have a lawyer present before engaging in discussion with police.

In Oregon v. Bradshaw (1983), 462 U.S. 1039, 77 L. Ed. 2d 405, 103 S. Ct. 2830, a majority of the court agreed that two tests must be met before an accused who has expressed a desire to deal with the police only with the assistance of counsel may be subject to further investigation by authorities. The test, as first stated in Edwards v. Arizona (1981), 451 U.S. 477, 485, 68 L. Ed. 2d 378, 386, 101 S. Ct. 1880, 1885, is whether “the accused himself initiates further communication, exchanges, or conversations with the police.” The Bradshaw plurality noted and the dissent agreed that where such a conversation is initiated by the accused, the burden remains on the prosecution to prevail on the second test which, as also stated in Edwards, concerns “ ‘whether the purported waiver was knowing and intelligent and found to be so under the totality of the circumstances ***’ [citation] *** ‘including the background, experience, and conduct of the accused.’ ” (Emphasis added.) 462 U.S. 1039, 1046, 77 L. Ed. 2d 405, 413, 103 S. Ct. 2830, 2835.

At the hearing on the motion to suppress, Detective Billy Meyer of the Quincy police department testified that, after he originally gave defendant the Miranda warnings and defendant requested counsel, arrangements were made to transfer defendant from a police interrogation room to a jail. Meyer further testified that defendant’s father then arrived at the interrogation room and, while Detective Scott remained at the open door to the room, he talked with defendant. The evidence indicated that after some conversation between father and son, the father asked Scott, “[W]hat happens now?” He testified that Scott responded that further proceedings depended upon what defendant did. According to the evidence, the father then stated defendant wished to speak to the police. Meyer testified that he then readmonished defendant as required by Miranda and asked defendant if he was absolutely sure he was changing his request for a lawyer. Defendant replied that he was and subsequently gave the statement in question. Scott’s testimony corroborated that of Meyer.

The Edwards opinion made clear that, in order for law enforcement personnel to take a statement from an accused after he had indicated a desire to obtain counsel before speaking, the accused and not the police must reopen the dialogue. (451 U.S. 477, 486 n.9, 68 L. Ed. 2d 378, 387 n.9, 101 S. Ct. 1880, 1885-86 n.9.) The court noted that the rule was designed to protect an accused in custody from being badgered by law enforcement officers. Here, both defendant’s father and police Captain Donald Capps, who informed the father of defendant’s capture, testified that no request was made to the father to encourage defendant to give a statement. Thus, clearly, the court could properly find that the father was not acting as an agent of the police, and the police did not initiate the subsequent dialogue. That defendant did reopen the dialogue is less clear, but the father testified that the decision for the defendant to talk with the police was a joint decision which the father related to the police. By joining in the decision and permitting the father to so inform the police, the defendant can be held to have initiated the subsequent discussion with the police within the meaning of Edwards.

We do not find the situation here to be similar to that referred to in Rhode Island v. Innis (1980), 446 U.S. 291, 64 L. Ed. 2d 297, 100 S. Ct. 1682. There, the court held that statements taken from an accused were admissible in evidence, and the court noted that statements made by an accused are not volunteered if made by the accused as a result of police actions which should have been anticipated to elicit an incriminating response. Here, the only police conduct which brought about the statement was the conduct of permitting the father to see the defendant. Evidence indicated that the father had requested to do so. We do not conceive that the United States Supreme Court intended that the dictum of Innis would be so encompassing to cover a situation such as this, even if the police might have realized that the defendant was likely to make a statement if he talked to his father.

We also conclude that the trial court could properly find under the totality of the circumstances that defendant had made a valid waiver of counsel and the right to remain silent. Initially, we note that defendant was an escapee from a penitentiary in Arizona, which would indicate his familiarity with police procedures. Additionally, although defendant was apparently in an emotional state of mind, the fact that his father was present might tend to negate the intimidating atmosphere. Finally, the officer’s second administration of the Miranda warnings was fairly extensive, and defendant responded that he knew what he was doing.

The trial court’s denial of the motion to suppress was neither contrary to the law nor to the manifest weight of the evidence.

Defendant’s second contention is that he was denied a fair trial by (1) the exclusion of evidence that would corroborate defendant’s testimony that he acted in response to the victim’s homosexual advance, and (2) the subsequent conduct of the prosecutor, after the above ruling, in making closing argument that no evidence was presented to corroborate defendant’s assertion that the victim was homosexual.

Prior to trial, the trial court granted a State motion to preclude introduction of evidence concerning Heuser’s sexual orientation. In an offer of proof, the defense introduced Randy Shelton, who testified he was a member of the local gay community and stated that he had seen the victim in bars known as “gay” bars. Shelton also indicated that he had seen the victim associating with persons of the gay community. The trial court ruled that defendant could not introduce the evidence but stated that if the State in rebuttal were to offer any evidence or in any way attempt to negate the believability of the homosexual contact, the court might reconsider and allow surrebuttal character evidence.

Defendant apparently attempted to analogize (1) evidence of the victim’s homosexuality to circumstantial evidence that a victim of a killing was a violent person to corroborate the defendant’s evidence of justification by acting in self-defense (People v. Stombaugh (1972), 52 Ill. 2d 130, 284 N.E.2d 640); or, (2) evidence the victim was a rapist to similarly support a self-defense theory (People v. Scott (1967), 82 Ill. App. 2d 109, 227 N.E.2d 72). However, the courts have not deemed homosexuals to necessarily be violent and have not allowed the admission of defense testimony that the victim was a homosexual absent indication that the victim was a violent one. People v. Parisie (1972), 5 Ill. App. 3d 1009, 287 N.E.2d 310; People v. Herron (1970), 125 Ill. App. 2d 18, 260 N.E.2d 428.

Even if evidence that the victim was a homosexual had been admissible to bolster the believability of defendant’s version of the occurrence, we are not convinced that proof that the victim associated with homosexuals or entered bars frequented by homosexuals would be relevant to prove that point. Undoubtedly, many people who do both are not homosexual. The defense cites Parisie v. Greer (7th Cir. 1982), 671 F.2d 1011, vacated on rehearing (7th Cir. 1983), 705 F.2d 882, cert, denied (1983), 464 U.S. 950, 78 L. Ed. 2d 326, 104 S. Ct. 284, where the court initially held that, in a similar situation, the trial court erred in refusing to admit evidence of (1) homosexual acts by the victim; and (2) the victim’s conduct in frequenting known homosexual habitats and making homosexual manifestations there. However, any precedential value of that initial version was nullified by its subsequent rejection by that court on rehearing. Moreover, the evidence in question there was much more probative of the victim’s being a homosexual than was the proffered conduct of association with homosexuals here.

Because the State had obtained an in limine order excluding the introduction of the evidence that the victim associated with homosexuals partially on the ground that evidence of a victim’s homosexuality, absent a propensity to violence, was irrelevant, the State’s closing argument that defendant offered no evidence to support his contention that the victim was homosexual was improper. However, the defendant made no objection at the time of closing argument when the court could have sustained an objection and informed the jury of the impropriety of the argument and mitigated the prejudice. In any event, the evidence that the defendant, who was larger than the unarmed victim, did not need to use a knife to protect himself from great bodily harm because of attack by the victim was overwhelming. Any error in the argument was harmless regardless of whether it was waived.

We affirm.

Affirmed.

WEBBER andMORTHLAND, JJ., concur.


author: JUSTICE REINHARD

text:
    JOHN RESUDEK, Plaintiff-Appellant, v. CARMEN SBERNA, Defendant-Appellee.
    Second District
    No. 84—263
    Opinion filed April 26, 1985.

      Gene L. Armstrong, of Cichocki & Armstrong, Ltd., of Oak Park, for appellant.
    John P. McGahey & Michael D. Johnson, both of Garbutt & Jacobson, of Chicago, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, John Resudek, appeals from the trial court’s order granting a motion for summary judgment brought by defendant, Carmen Sberna. Plaintiff, who was formerly an insurance underwriter for Kemper Insurance Company (Kemper), filed this action for slander and tortious inference with contract against defendant, who was engaged in the insurance agency/brokerage business, for a statement made by defendant to another Kemper employee that he, defendant, was “tired of paying for business.” Following this statement, Kemper conducted a review of plaintiff’s underwriting decisions and, although no evidence of improper decisions was found, plaintiff was terminated because he had accepted gifts in violation of company policy.

The issue raised on appeal by plaintiff is whether there were genuine issues of material fact relating to both his actions for slander and tortious interference with contract which make the granting of summary judgment improper.

Plaintiff’s complaint, as later amended, was in two counts alleging causes of action for “defamation/slander” in count I, and for “interference with contractual relations and/or prospective business advantages,” in count II. Essentially, the allegations of the complaint stated that on December 1, 1981, in a telephone conversation with James Flavin, regional director of agencies for Kemper, defendant, who was engaged in the insurance ageney/brokerage business, stated, inter alia, “I’m tired of paying for business,” and told Flavin he had been paying for lunches, and had bought plaintiff gifts of a stereo, a shirt, and ties. Plaintiff alleged the accusations were false and defamatory, and resulted in the loss of his job as an underwriter -with Kemper.

Defendant filed a motion for summary judgment attaching a memorandum of law and fact which contained excerpts from various depositions of Kemper employees, a copy of the Kemper policy on gifts, and correspondence from plaintiff to a Kemper supervisor concerning the gifts from defendant. The full depositions of the four Kemper employees were subsequently filed. In his memorandum, defendant sought summary judgment on the slander count on the basis of the defenses of truth, the innocent construction rule, and the rule of conditional privilege, and on the tortious interference with contract count on the basis of plaintiff’s failure “to show any of the four essential elements necessary to sustain such a cause of action.” Plaintiff filed a memorandum in opposition to defendant’s motion for summary judgment wherein plaintiff basically argued against the legal theories advanced by defendant for summary judgment and further contended that there were genuine issues of material fact which precluded the granting of summary judgment.

In relevant part, the deposition of James Flavin, regional director of agencies for Kemper, revealed that it was his responsibility to work with and maintain relationships with agents and brokers who offer insurance issued by Kemper; that defendant was one of his general agents; that a problem arose with respect to the authenticity of signatures of two proposed insureds on applications submitted by defendant; that he spoke by telephone with defendant about the signatures and was told by defendant they were authentic; that during the conversation, defendant brought up plaintiff’s name and said “he was tired of paying for business”; that Flavin responded, “Do you understand exactly what you’re telling me?” and defendant said “I know what I’m telling you”; that Flavin said he would have to go to a higher authority, and defendant said “he didn’t care, he was tired of paying for business”; that defendant further said he had been paying for lunches, mentioned a stereo, a shirt and ties, and didn’t care where it went from there; and that he, Flavin, assumed all these statements were made about plaintiff. Flavin reported the conversation to his supervisor, and other Kemper employees took over responsibility for resolution of the matter.

In summary, the depositions of three other Kemper employees reveal that as a result of Flavin’s reporting of the conversation with defendant, an audit of plaintiff’s work with defendant was undertaken, no evidence of improper decisions made by plaintiff, who was the only underwriter for defendant’s business, was discovered; plaintiff was requested to provide information about gifts he may have received from defendant, and plaintiff admitted receiving a Sony Beta-max tape player, a shirt and ties, and numerous lunches, all paid for by defendant. The depositions further indicate that following the audit, the matter was turned over to the corporate personnel department with the recommendation to terminate plaintiff, and the decision to terminate plaintiff was ultimately made by the personnel department. None of the four depositions on file in this cause are from employees of the personnel department. The understanding of the Kemper employees, whose depositions are contained in the record, is that plaintiff was terminated for the acceptance of gifts in violation of company policy. Also, the fact that an accusation of paying an underwriter for business was made and the fact that plaintiff accepted gifts contrary to company policy created a problem such that plaintiff could not continue to make decisions in the best interests of the company.

The motion for summary judgment was granted by Judge McQueen in a written order without further findings. Plaintiff filed a motion for rehearing, which was denied by Judge Geiger, who had been assigned the case following Judge McQueen’s retirement.

Before proceeding to our analysis of plaintiff’s contentions on appeal, we must consider initially defendant’s motion to dismiss the appeal for lack of jurisdiction. Defendant maintains that Judge McQueen’s written order granting his motion for summary judgment does not by its terms expressly enter judgment for any party and therefore cannot be considered to be a judgment. Although there is dated authority that an order granting a motion for summary judgment is not a judgment but merely a ruling that the party is entitled to a judgment (Dowling v. Jensen (1960), 28 Ill. App. 2d 174, 171 N.E.2d 107), more recent and authoritative decisions hold that the finality of an order is not necessarily determined by its form (Wilkey v. Illinois Racing Board (1983), 96 Ill. 2d 245, 249, 449 N.E.2d 843; Bates v. Ulrich (1976), 38 Ill. App. 3d 203, 204, 347 N.E.2d 286), and a final judgment is a determination by the court on the issues presented by the pleadings which ascertains and fixes absolutely and finally the rights of the parties in the lawsuit (Flores v. Dugan (1982), 91 Ill. 2d 108, 112, 435 N.E.2d 480). The written order here granted defendant’s motion for summary judgment, and there is nothing in the record to otherwise indicate anything but a final judgment for defendant. Defendant’s motion to dismiss the appeal is denied.

It is plaintiff’s position that the trial court improperly granted summary judgment for defendant. He argues that there are genuine issues of material fact presented in the record which preclude summary judgment. It is well settled that a reviewing court must reverse an order granting summary judgment if it is determined that a material question of fact does exist. (Econo Lease, Inc. v. Noffsinger (1976), 63 Ill. 2d 390, 393, 349 N.E.2d 1.) Because summary judgment is such a drastic method of disposing of a case, it should not be employed unless the right of the moving party is free from doubt, and the affidavits and depositions are to be construed against the moving party. Murphy v. Urso (1981), 88 Ill. 2d 444, 464, 430 N.E.2d 1079.

We first address the slander count. In Illinois, under the common law, four classes of words, if falsely communicated, give rise to a cause of action for defamation without a showing of special damages. This is called slander or libel per se. They are:

“ ‘1. Those imputing the commission of a criminal offense;
2. Those imputing infection with a communicable disease of any kind which, if true, would tend to exclude one from society;
3. Those imputing inability to perform or want of integrity in the discharge of duties of office or employment;
4. Those prejudicing a particular party in his profession or trade.’ ” (Fried v. Jacobson (1983), 99 Ill. 2d 24, 27, 457 N.E.2d 392.)

“An Act to revise the law in relation to slander and libel” (Ill. Rev. Stat. 1977, ch. 126, par. 1 et seq.) enlarged the classifications enumerated above by providing that false accusations of fornication, adultery and false swearing are actionable as a matter of law. Only two of the common law categories are relevant here — words imputing inability to perform or want of integrity in the discharge of duties of office or employment and those prejudicing a party in his profession or trade.

The preliminary determination of whether a statement is slanderous per se is one of law. (Audition Division, Ltd. v. Better Business Bureau of Metropolitan Chicago, Inc. (1983), 120 Ill. App. 3d 254, 256, 458 N.E.2d 115.) In malting that determination, courts also apply the innocent-construction rule as set forth in Chapski v. Copley Press (1982), 92 Ill. 2d 344, 442 N.E.2d 195:

“[A] written or oral statement is to be considered in context, with the words and the implications therefrom given their natural and obvious meaning; if, as so construed, the statement may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff it cannot be actionable per se. This preliminary determination is properly a question of law to be resolved by the court in the first instance; whether the publication was in fact understood to be defamatory or to refer to the plaintiff is a question for the jury should the initial determination be resolved in favor of the plaintiff.” 92 Ill. 2d 344, 352, 442 N.E.2d 195.

There were no findings or reasons given by the court below for granting defendant’s motion for summary judgment. On appeal, defendant contends the statement alleged to be slanderous is not slanderous per se, is subject to an innocent construction, and further argues that plaintiff has failed to make a showing of malice or damages. Plaintiff maintains that the statement was slander per se, not subject to an innocent construction, and that malice and damages are presumed for statements which are slanderous per se. Alternatively, plaintiff contends the statement constitutes slander per quod, which we need not reach in view of our analysis below.

We believe as a preliminary determination as a matter of law defendant’s statement is slanderous per se, and when taken in context with the words and implications therefrom, cannot reasonably be innocently interpreted. The statement made by defendant about plaintiff imputes both a lack of integrity and tends to prejudice him in his business as an insurance underwriter. Defendant’s statement that he was “tired of paying for business” made to another Kemper employee about plaintiff, who made underwriting decisions on applications for insurance submitted by defendant, reasonably can be interpreted as impugning plaintiff’s integrity as it relates to underwriting decisions. It implies plaintiff’s decisions are affected by payments, such as gifts, which further implies a lack of loyalty to Kemper and a willingness to make decisions which are influenced by payment of money or gifts. Certainly, Flavin, to whom the statement was made, and other Kemper employees who conducted an audit of plaintiff’s files, felt the remark in question reflected adversely upon plaintiff’s character and job performance to warrant an immediate investigation. We, therefore, do not believe that as a matter of law it is reasonable to construe defendant’s statement innocently, given the context in which it was said, and its natural and obvious interpretation. See Crinkley v. Dow Jones & Co. (1983), 119 Ill. App. 3d 147, 151-52, 456 N.E.2d 138; Savage v. Seed (1980), 81 Ill. App. 3d 744, 751-52, 401 N.E.2d 984.

Although defendant maintains that damages were not sustained by plaintiff due to the fact he was terminated for a violation of a Kemper policy against acceptance of gifts rather than for his statement, and that malice is not supported by the record, malice and damages are presumed if a statement is slanderous per se. (Audition Division, Ltd. v. Better Business Bureau of Metropolitan Chicago, Inc. (1983), 120 Ill. App. 3d 254, 256, 458 N.E.2d 115.) At this stage of the proceedings, we are satisfied that there is a genuine issue of fact as to defendant’s malice, and any damages which proximately result must be determined by the trier of fact and may be awarded for slander whether or not plaintiff’s actual termination was caused by the defendant’s statement. The trial court improperly granted summary judgment for defendant on the slander count, and that decision is reversed.

Count II of plaintiff’s complaint, labeled “interference with contractual relations and/or prospective business advantages,” alleged, in pertinent part, defendant’s slanderous statement to a Kemper employee, Flavin, resulted in the loss of his job at Kemper and the “loss of the prospective economic advantages he enjoyed at Kemper.” The trial court also did not provide findings or reasons for granting defendant summary judgment on this count. Defendant argues on appeal that summary judgment was justified because plaintiff failed to show malice and failed to prove that the statement of defendant triggered the actual breach of the contract. Defendant also advances an argument that as plaintiff was an employee “at will” and can be terminated without cause by Kemper, defendant cannot have interfered in this type of a relationship. This latter issue was not raised below, and the facts do not reveal the nature of the plaintiff’s employment contract with Kemper. Thus, the point cannot be raised and considered for the first time on appeal. (See Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147, 324 N.E.2d 417.) Besides, the contention appears to be meritless, for the tort of interference with a contract has been held to apply to “at will” employment contracts. Getschow v. Commonwealth Edison Co. (1982), 111 Ill. App. 3d 522, 529-30, 444 N.E.2d 579; Kemper v. Worcester (1982), 106 Ill. App. 3d 121,124, 435 N.E.2d 827.

As stated in Audition Division, Ltd. v. Better Business Bureau of Metropolitan Chicago, Inc. (1983), 120 Ill. App. 3d 254, 258, 458 N.E.2d 115,

“The elements of tortious interference with existing contracts are: the existence of a valid contract; defendant’s knowledge of the contract; the intentional and malicious inducement of the breach; a subsequent breach; and damages resulting from the breach. (National Educational Advertising Services, Inc. v. Cass Student Advertising, Inc. (N.D. Ill. 1977), 454 F. Supp. 71; ZamousJci v. Gerrard (1971), 1 Ill. App. 3d 890, 275 N.E.2d 429.) To establish a claim for tortious interference with a prospective contractual relationship, plaintiff must have a reasonable expectation of entering into a valid business relationship, defendant must know of the expectancy and intentionally and maliciously interfere to defeat the expectancy, and plaintiff must be injured. (American Pet Motels, Inc. v. Chicago Veterinary Medical Association (1982), 106 Ill. App. 3d 626, 435 N.E.2d 1297; Crinkley v. Dow Jones & Co. (1978), 67 Ill. App. 3d 869, 385 N.E.2d 714.) There must be a showing of malice.” (See also Schott v. Glover (1982), 109 Ill. App. 3d 230, 234-35, 440 N.E.2d 376.)

The torts of interference with contract and interference with a prospective business or contractual relationship are two distinct causes of action. Audition Division, Ltd. v. Better Business Bureau of Metropolitan Chicago, Inc. (1983), 120 Ill. App. 3d 254, 258, 458 N.E.2d 115; see generally Broida & Haudler, Tortious Interference with Contract and Prospective Advantage in Illinois, 32 DePaul L. Rev. 325 (1983).

We note, first, that plaintiff in his initial brief has failed to argue the propriety of the summary judgment order as it relates to any claimed tort of interference with a prospective business advantage. An argument not raised in the initial brief is deemed waived for purposes of review even if discussed in the reply brief. (Murdy v. Edgar (1984), 103 Ill. 2d 384, 393, 469 N.E.2d 1085; Will v. Will Products, Inc. (1982), 109 Ill. App. 3d 778, 785, 441 N.E.2d 343.) Even if we were to ignore the waiver doctrine, the pleadings do not allege a theory of interference with a prospective business advantage with any identifiable third party. (See Heying v. Simonaitis (1984), 126 Ill. App. 3d 157, 162, 466 N.E.2d 1137.) The interference alleged in count II is with the existing and continuing contractual relationship with Kemper which, we believe, constitutes under the circumstances here only the tort of interference with contract, not the separate tort of interference with a prospective contract or business relationship. See Restatement (Second) of Torts sec. 766B, comment a (1979).

However, we also conclude that the trial court should not have granted defendant’s motion for summary judgment as it pertains to the tort of interference with plaintiff’s contract with Kemper. Genuine issues of material fact exist as to the elements necessary to prove that tort. Whether there was an intentional and malicious inducement of the breach by defendant is clearly a question of fact. The depositions and other materials filed by defendant do not in any way present evidence of defendant’s intent which would rebut the inference of malice and intent to breach the contract from the statement made by defendant about plaintiff to Flavin. Defendant’s deposition is not contained in the record, nor was it submitted to the trial court in support of the motion for summary judgment. Whether defendant’s statement proximately caused the termination of plaintiff’s contract of employment with Kemper is also a question of fact. (See Doremus v. Hennessy (1898), 176 Ill. 608, 617, 52 N.E. 924; Prosser, Torts sec. 129, at 935 (4th ed. 1971).) The trial court, therefore, improperly granted summary judgment for defendant on that portion of count II of plaintiff’s complaint alleging interference with contract.

For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed in part and reversed in part, and the cause remanded for further proceedings.

Affirmed in part, reversed in part, and remanded.

SCHNAKE and HOPF, JJ., concur.