author: JUSTICE LINDBERG

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD G. WOLFE, JR., Defendant-Appellant.
    Second District
    No. 82—510
    Opinion filed May 20, 1983.
    Rehearing denied June 17, 1983.

      James C. Hauser, of Magna, Brown & Hauser, of Round Lake, and Peter E. Pates, of Lake Villa, for appellant.

      Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Marshall Stevens, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE LINDBERG

delivered the opinion of the court:

After a jury trial in the circuit court of Lake County, defendant, Donald G. Wolfe, Jr., was found guilty of two counts of reckless homicide (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 3) for his involvement in an automobile accident in which two persons were killed. He appeals from his conviction on both counts and from the sentence, which consisted of the following: (1) $20,000 in fines; (2) periodic imprisonment consisting of weekends in the county jail for almost six months; (3) 30-month probation; (4) suspension of driving privileges during probation; and (5) 300 hours of public service. Because the trial court failed to give a jury instruction on a lesser included offense which defendant requested, we reverse and remand for a new trial.

The incident giving rise to this case was an auto accident on Kelsey Road near Barrington on May 22, 1981. The evidence at trial established that the vehicle that defendant was driving, a Dodge pickup truck, approached the car driven by Rose Gainer from behind as they both were traveling south on Kelsey Road shortly before 11 p.m. Kelsey Road in the vicinity of the accident is a two-lane black asphalt roadway with a double yellow line separating southbound and northbound lanes and a posted speed limit of 50 miles per hour. The Gainer car had four passengers in addition to the driver. The passengers in the Gainer car noticed defendant’s truck because it was following very closely behind and the truck’s headlights illuminated the inside of the car. Two of those passengers estimated Gainer’s speed at 40 to 50 miles per hour, and one estimated defendant’s as about the same. Defendant stated that Gainer’s car proceeded slowly “like a farm vehicle.” Defendant pulled into the left lane in order to pass Gainer. His truck never passed Gainer’s car, although one passenger said the truck pulled up as far as the rear quarter panel of the car, and defendant said that he came almost even with the other car.

At this point, the headlights of an approaching vehicle became visible around a sharp curve in the road. The State’s witnesses stated that Gainer accelerated upon seeing the approaching car, Gainer indicating that her purpose was to allow defendant to pull back in behind her. Defendant stated that upon seeing the third vehicle as he approached the curve, he could not get around Gainer’s car. He “locked up” his brakes leaving skid marks on the pavement later measured to be 142 feet long. An expert witness for the State estimated defendant’s speed at the beginning of his skid to be 50 to 60 miles per hour. Defendant’s truck collided head on with the northbound vehicle, a Fiat Strada driven by Robert Huntemann and in which Diane Martin was a passenger. Both colliding vehicles came to rest within the northbound lane.

It was stipulated that Huntemann and Martin both died as a result of injuries suffered due to collision. There were no skid marks behind the Fiat. A toxicology test showed that the alcohol in Huntemann’s blood was 0.134, a level at which defendant’s expert explained a person’s ability to apply brakes in response to visual stimuli would be significantly impaired.

Defendant’s father testified that, upon examining the truck the day after the accident, he noted that its manual transmission was in the second gear position. A private investigator employed by defendant testified that, by his measurements, a northbound driver could distinguish a vehicle in the southbound lane 303 feet 6 inches from the point of the collision and 440 feet 6 inches from the point defendant’s skid marks began.

On appeal, defendant raises several issues regarding the indictment, the prosecution’s evidence and conduct at trial, the sufficiency of the evidence, the jury instructions, and the sentence. Although, as shall be discussed, we find the trial court’s denial of one of the jury instructions to warrant remandment, we shall address those of the other issues necessary to a proper disposition of this appeal.

I

Defendant first challenges the indictment. He was originally indicted by a grand jury for two counts of reckless homicide on November 16, 1981. On April 14, 1982, defendant was reindicted with only a small change in the wording of both counts to reflect that defendant’s vehicle struck the vehicle of the victims, not the victims themselves. It was upon this second indictment that defendant was tried. Defendant seeks dismissal, contending that he was denied due process before the second grand jury. He characterizes that grand jury hearing as a “complete farce” and alleges instances of false evidence, absence of requested evidence, and prosecutorial misconduct.

Although the general rule is that a defendant may not challenge the validity of indictment returned by a legally constituted grand jury, courts have carved out certain exceptions to this rule over the years. (People v. Rodgers (1982), 92 Ill. 2d 283.) The exception which defendant seeks to invoke here is that a trial court has inherent authority to dismiss an indictment where there has been a clear denial of due process. (People v. Lawson (1977), 67 Ill. 2d 449.) The supreme court in Lawson, however, emphasized that courts must proceed with restraint and ascertain preindictment denial of due process only with certainty. 67 Ill. 2d 449, 457.

The State’s reliance upon People v. Rodgers (1982), 92 Ill. 2d 283, for the proposition that a defendant can challenge an indictment only where there is absolutely no evidence presented to the grand jury to support the charge is misplaced. Rather, Rodgers stands for the proposition that an indictment may be challenged on that basis even though a court will not consider the adequacy or sufficiency of the evidence. (See People v. Creque (1978), 72 Ill. 2d 515, cert. denied (1979), 441 U.S. 912, 60 L. Ed. 2d 384, 99 S. Ct. 2010.) Rodgers itself lists some of the other bases for dismissal of an indictment. People v. Rodgers (1982), 92 Ill. 2d 283, 287.

Defendant most strongly argues that false testimony before the grand jury concerning the State’s expert’s estimation of defendant’s speed warranted dismissal. Joseph Rivera, an investigator for the State’s Attorney’s office and the only witness before the grand jury, testified that the State’s expert, Thad Aycock, concluded that defendant’s truck was going approximately 64 miles per hour. Aycock’s actual conclusion, as evidenced in his report, was that the speed of defendant’s truck was “no less than 51 mph and could have been as high as 64 mph.” A court could properly dismiss an indictment based upon perjured testimony if the denial of due process was established with certainty. (People v. Rivera (1979), 72 Ill. App. 3d 1027, 390 N.E.2d 1259.) However, we hold that Rivera’s reporting only of the estimated maximum as the approximate speed did not constitute with sufficient certainty denial of defendant’s right to due process.

Defendant hints that the fact that Rivera’s testimony was double hearsay aggravates matters. However, evidence of this sort is proper at a grand jury hearing. An indictment based solely on hearsay testimony is constitutionally acceptable. (People v. Willie (1979), 69 Ill. App. 3d 964, 388 N.E.2d 102.) Grand jurors may act on tips, rumors, evidence offered by the prosecutor, or their own personal knowledge; the validity of an indictment is not affected by the character of the evidence considered. People v. Creque (1978), 72 Ill. 2d 515.

Defendant alleges denial of due process in that the State did not present to the grand jury additional evidence, such as the speed limit at the scene of the accident, defendant’s version of the occurrence, and the fact that the driver of the other vehicle was legally intoxicated and apparently took no evasive action. Defendant notes that the grand jurors inquired about the first two of these. However, the prosecutor is under no duty to inform the grand jurors of the existence of additional or more direct evidence. (People v. Creque (1978), 72 Ill. 2d 515, 525.) The witness here, Joseph Rivera, informed the grand jury that he had no personal recollection of the speed limit and had not interviewed defendant. Under these circumstances, again we see no due process violation.

Finally, defendant maintains that a grand jury was “set up” by the prosecutor to “rubber stamp” the requested indictment. Defendant points to remarks of the prosecutor that they were only there to make “a formal change” from a previously returned indictment, that they would not be hearing testimony “in any great length,” and that he, the prosecutor, did not “even know if it’s necessary ***.” Prosecutorial misconduct is a proper ground for dismissal of an indictment. (People v. Linzy (1979), 78 Ill. 2d 106.) However, despite the tone of the prosecutor’s comments, there is no evidence that the grand jurors were misled about the nature of their responsibility. Again, no due process violation is established with certainty.

In sum, then, the factors cited by defendant neither separately nor cumulatively appear to have constituted a denial of due process such that the indictment should have been dismissed.

II

Defendant next challenges the admissibility of the testimony of Thad Aycock, an expert witness called by the State, who concluded that defendant’s vehicle was traveling between 50 and 60 miles per hour at the point when it began to skid. Defendant argues that Aycock’s testimony was inadmissible for two reasons: (1) because it was not proper to supplement eyewitness testimony with reconstruction expert testimony where, as here, the factual matters to be resolved do not require a scientific knowledge beyond that of typical jurors; and (2) because Aycock was not sufficiently qualified as an expert on the speed of defendant’s vehicle. We address this issue because of the likelihood of its reappearance on remand (see Smith v. Metropolitan Sanitary District (1978), 61 Ill. App. 3d 103, 377 N.E.2d 1088, aff'd (1979), 77 Ill. 2d 313) and because Aycock’s testimony may have influenced the jury’s determination of guilt in a case where we must dispose of a reasonable doubt issue despite a reversal based on another issue (see People v. Taylor (1979), 76 Ill. 2d 289).

There were five persons in the Gainer car, the vehicle which defendant was attempting to pass. Three of those five testified for the State at trial. Rose Gainer could not estimate either her speed or that of defendant, but did state that she accelerated after spotting the headlights of the victims’ car approaching in the opposite direction. Cynthia Arndt estimated that the Gainer car was going about 40 to 50 miles per hour at the time she turned around to see the truck. That was just prior to defendant’s attempt to pass the Gainer car. Arndt also stated that Gainer accelerated after realizing that “something was going to happen.” Arndt answered affirmatively when asked if defendant “was going between 40 and 50 miles per hour through that stretch, or less” prior to the time Gainer accelerated. Valerie Nitka observed the needle of Gainer’s speedometer between 45 and 50 after first turning around to see defendant’s truck behind them. After defendant pulled into the other lane, Nitka saw the approaching lights of the victims’ car and felt Gainer accelerate. None of these witnesses reported seeing defendant begin to skid or crash into the oncoming car. However, Arndt and .Nitka noted that it was a very brief period of time between Gainer’s acceleration and the sound of the crash.

The rule concerning the propriety of expert testimony in reconstructing an accident is that reconstruction testimony may not be used as a substitute for eyewitness testimony where such is available; whether it may be used in addition to eyewitness testimony is determined by whether it is necessary to rely on knowledge and application of principles of science beyond the ken of the average juror. (Plank v. Holman (1970), 46 Ill. 2d 465, 471; Peterson v. Lou Bachrodt Chevrolet Co. (1979), 76 Ill. 2d 353, 359; E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 703.2 (3d ed. 1979).) In cases where eyewitness testimony is available, the use of the expert is left to the discretion of the court within the guiding principle that the use of such testimony should be the exception and not the rule. (People v. Dietschweiler (1974), 21 Ill. App. 3d 707, 315 N.E.2d 585; E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 703.2 (3d ed. 1979).) The speed of an automobile is generally considered a matter not beyond the ken of the average juror. Peterson; Dietschweiler.

While we cannot agree with the State that there was a lack of reliability of the eyewitnesses in this case so as to permit an expert’s estimation, we conclude that Aycock’s testimony was admissible on a different ground. Arndt’s and Nitka’s testimony would establish defendant’s speed at 40 to 50 miles per hour at a time when defendant was following closely behind and prior to the appearance of the headlights of the victims’ vehicle. Gainer, Arndt and Nitka all testified that it was upon that appearance that Gainer accelerated. Seconds later, defendant began to skid and the crash occurred, unobserved by the witnesses. Thus, there was no eyewitness testimony about defendant’s speed at the instant he began to skid, the issue to which Aycock addressed himself. Although only a very short time had passed since the Arndt and Nitka observations, it is conceivable that defendant had reacted to Gainer’s acceleration quickly by also accelerating. There is no inconsistency between the testimony of Arndt’s and Nitka’s estimation of a speed just below the speed limit prior to Gainer’s acceleration and Aycock’s estimation of a speed just above the speed limit seconds later after Gainer’s acceleration. Therefore, Aycock’s reconstruction testimony was admissible as relating to a factual issue not precisely addressed by the eyewitnesses’ testimony.

Defendant’s contention that Aycock lacked qualifications as an expert in auto accident reconstruction is totally meritless. Our examination of the record shows that Aycock has very strong credentials in auto accident reconstruction, including training, experience, teaching, professional association, and providing expert testimony. In the two sentences of Aycock’s testimony which defendant takes out of context (“I have never been confronted with a situation where I was asked to reconstruct an accident. That would take far too much time and far too much money and it would be beyond by expertise anyway”), it is clear that Aycock was referring to literal or physical “reconstruction” of an accident scene, rather than to the diagram preparation, speed estimation and other calculations of the type Aycock was clearly qualified to do. This ambiguity was immediately cleared up during the State’s direct examination.

Ill

Defendant contends that the State did not meet its burden of proof. He maintains that in order to sustain his reckless homicide conviction, his conduct must be shown not only to be reckless, but also to be wilful and wanton.

For this proposition, defendant relies upon People v. LaCombe (1982), 104 Ill. App. 3d 66, 72, 432 N.E.2d 672, 676, which held that in a reckless homicide prosecution, “[rjeckless conduct alone is not sufficient to sustain a conviction; the reckless conduct must be wilful and wanton.” LaCombe, in turn, cited for this proposition only People v. Ziegler (1979), 78 Ill. App. 3d 490, 396 N.E.2d 1160. The Ziegler opinion contained the following paragraph:

“Both defendants contend that the evidence failed to establish guilt by proof beyond a reasonable doubt. Although Ziegler was found guilty of reckless homicide and Stasik of reckless driving, the legal elements of both of these offenses are the same. The statute defines the gist of reckless driving as driving with ‘a willful and wanton disregard for safety of persons or property ***’ (Ill. Rev. Stat. 1977, ch. 95V2, par. 11 — 503). Similarly, the statute defines reckless homicide as unintentionally killing an individual by recklessly driving a motor vehicle. Ill. Rev. Stat. 1977, ch. 38, par. 9-3(a).” (78 Ill. App. 3d 490, 495, 396 N.E.2d 1160, 1165.)

The Ziegler court then proceeded to affirm the convictions of both defendants on the basis that the evidence showed a course of reckless driving which amounted to wilful and wanton conduct.

Unlike the statute defining reckless driving (Ill. Rev. Stat. 1981, ch. 95V2, par. 11 — 503), which the Ziegler opinion equated to reckless homicide, the statute defining reckless homicide (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 3) does not say “willful and wanton,” but does require that the accused’s acts be performed “recklessly.” The Criminal Code of 1961 defines recklessness as follows:

“A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. An act performed recklessly is performed wantonly, within the meaning of a statute using the latter term, unless the statute clearly requires another meaning.” Ill. Rev. Stat. 1981, ch. 38, par. 4 — 6.

Statutorily, then, “recklessly” includes “wantonly,” but does not include “willfully” unless, as in the reckless driving provision, the statute provides otherwise. Numerous cases discuss the mental state element of the offense of reckless homicide or involuntary manslaughter under section 9 — 3 without reference to the phrase “willful and wanton.” See, e.g., In re Vitale (1978), 71 Ill. 2d 229, 238, vac. & rem. on different grounds (1980), 447 U.S. 410, 65 L. Ed. 2d 228, 100 S. Ct. 2260; People v. Walljasper (1981), 97 Ill. App. 3d 81, 82, 422 N.E.2d 251, 252; People v. Suerth (1981), 97 Ill. App. 3d 1005, 1010, 423 N.E.2d 1185, 1190.

However, while we disagree with the conclusion in People v. LaCombe (1982), 104 Ill. App. 3d 66, 72, 432 N.E.2d 672, 676, that wilful and wanton conduct in addition to recklessness must be shown, we conclude that the distinction is insignificant. This is because the terms “reckless” and “willful and wanton” have been used interchangeably. (People v. Van Bussum (1966), 72 Ill. App. 2d 428, 435-36, 219 N.E.2d 695, 699; see Breslin v. Bates (1973), 14 Ill. App. 3d 941, 948, 303 N.E.2d 807, 813; Glaze v. Owens (1968), 104 Ill. App. 2d 172, 176, 243 N.E.2d 13, 15.) The VanBussum court refused to read the statutes cited here to require a specific finding of wilful and wanton conduct while noting the interchangeability of the terms. We read People v. Ziegler (1979), 78 Ill. App. 3d 490, 396 N.E.2d 1160, upon which the LaCombe court relied, to have merely employed that interchangeability in equating the elements of reckless conduct with those of reckless homicide.

Defendant further contends with regard to the State’s burden of proof that the State failed to prove him guilty beyond a reasonable doubt. We first observe that it is undisputed that defendant’s acts in driving a motor vehicle resulted in the deaths of two people. The evidence showed conclusively, and defendant does not deny, that he crossed over the double yellow line of Kelsey Road into the opposite lane in order to make an illegal pass, that at the time he pulled out a sharp curve in the road was approaching, that it was nighttime, that there were trees and bushes higher than the roadway obscuring the vision around the curve, and that defendant was very familiar with Kelsey Road and was fully aware of the double yellow line, the approaching curve, and the obscuring trees and bushes. The State’s eyewitness testimony tended to show defendant was tailgating the Gainer car. Defendant’s speed was estimated at 40 to 50 miles per hour by one of the State’s eyewitnesses about the time he moved into the opposite lane. Although never pulling even with the Gainer car, which accelerated at the appearance of the victims’ car, defendant’s speed was estimated at 50 to 60 miles per hour by the State’s reconstruction expert at the point defendant began to skid. Defendant stated that after seeing the victims’ oncoming car he did not have sufficient time to get back in the right lane, but could only “lock-up” his brakes, resulting in a skid of 142 feet before the collision.

Based on these facts, we conclude that the evidence was sufficient to warrant a finding of guilty. By his actions, defendant consciously disregarded the substantial and unjustifiable risk that he would face another car traveling in the opposite direction in the same lane and that both cars would be traveling at approximately 50 miles per hour without sufficient time to avoid a head-on collision. Defendant certainly knew that his acts created the substantial and unjustifiable risk that such a collision could result in death.

Defendant correctly points out that improperly passing a motor vehicle, considered alone, does not constitute criminal recklessness. (People v. Luttmer (1977), 48 Ill. App. 3d 303, 362 N.E.2d 1093; People v. Chambers (1972), 8 Ill. App. 3d 430, 289 N.E.2d 476.) We have here, however, some facts beyond mere improper passing. Defendant undertook to pass the Gainer car at night with an approaching curve and obscuring foliage, all factors of which he was subjectively aware, and at a speed which was excessive, if not for proper lane usage, then for attempting a blind pass where reaction time was crucial.

Defendant also attempts to establish reasonable doubt as to his recklessness through the actions of the drivers of the other two vehicles. Defendant cites People v. LaCombe (1982), 104 Ill. App. 3d 66, 73, 432 N.E.2d 672, 676, for the proposition that criminal liability should not attach to a defendant’s otherwise condemnable conduct if a victim’s reckless conduct could not have been anticipated by the defendant.

Here, defendant points to, as unanticipated reckless conduct of others, the acceleration of Rose Gainer and the intoxicated state of Robert Huntemann and Huntemann’s apparent failure to take evasive action. However, Gainer did not accelerate, according to the State’s eyewitnesses, until the victim’s car became visible. As defendant had not yet pulled ahead or even with her, Gainer’s attempt to let defendant back in the right lane behind her was neither reckless nor unanticipatable. There is no evidence that Huntemann, although intoxicated, was driving anywhere he should not have been or in any improper manner. Even if his state of insobriety prevented him from taking evasive action, Huntemann’s conduct could not be considered reckless. (See People v. Walljasper (1981), 97 Ill. App. 3d 81, 422 N.E.2d 251, wherein alleged intoxication did not constitute recklessness where the fatal accident was the result of an unforeseen slippery patch on the roadway.) Defendant could not rely on a driver of a vehicle approaching him head on around a blind curve to be able to react quickly enough to evade him. The actions of Gainer and Huntemann do not approach that of the victim-passenger in LaCombe, who, without warning to the defendant-driver, fell and was run over while attempting to climb out the window and onto the outside of the defendant’s slow- but erratic -moving truck.

IV

Defendant assigns error in the trial court’s denial of five of his tendered instructions. None of the five was an instruction contained in the Illinois Pattern Jury Instructions (IPI), Criminal (2d ed. 1981). Generally, an IPI Criminal instruction should be used whenever it contains an applicable instruction; a non-IPI instruction may be used only if IPI Criminal does not contain an accurate instruction on a subject that the jury should be instructed upon and if the tendered non-IPI instruction is simple, brief, impartial, and free from argument. (87 Ill. 2d R. 451(a); People v. Haywood (1980), 82 Ill. 2d 540.) The decision whether to give a non-IPI instruction is within the discretion of the trial court. (People v. Moore (1980), 89 Ill. App. 3d 202, 411 N.E.2d 579; People v. Larson (1980), 82 Ill. App. 3d 129, 402 N.E.2d 732.) That discretion is abused if the court’s refusal to give an instruction results in the jury not being instructed as to a defense theory of the case which is supported by some evidence. People v. Hines (1975), 28 Ill. App. 3d 976, 329 N.E.2d 903.

Defendant’s instruction No. 1 states that a guilty verdict can be sustained only where the proof discloses that defendant knew the danger of collision and recklessly collided with the vehicle driven by the deceased without using such means as were reasonable and at his command to prevent the accident. Although this is an accurate statement of the law (People v. Crego (1946), 395 Ill. 451), it amounts to a restatement of the mental state element of the offense of reckless homicide which was given briefly, impartially, and sufficiently in IPI Criminal No. 5.01 as People’s instruction No. 9.

Defendant’s instruction No. 2 modified IPI Criminal No. 7.10, which was given as the People’s Nos. 11 and 12, to include the following additional proposition for the State to prove: “That reckless conduct alone is not sufficient to sustain the charge of reckless homicide; the reckless conduct must be wilful and wanton.” Defendant here again relies upon People v. LaCombe (1982), 104 Ill. App. 3d 66, 432 N.E.2d 672, of which we have already expressed disapproval. People v. Van Bussum (1966), 72 Ill. App. 2d 428, 219 N.E.2d 695, held that it is not necessary to instruct the jury that it must find defendant’s conduct wilful and wanton in order to convict because sections 9 — 3 and 4 — 6 of the Criminal Code of 1961 (Ill. Rev. Stat. 1961, ch. 38, pars. 9 — 3, 4 — 6) do not require it and because “wilful and wanton” has been used interchangeably with “reckless.” Thus, IPI Criminal No. 7.10 was a sufficient statement of the elements of the offense. Moreover, defendant’s No. 2 is inartfully composed in that it does not inform the jury of its statement of law but rather requires the State to prove that statement.

Defendant’s instruction No. 3 states that improperly passing a motor vehicle, considered alone, does not constitute criminal recklessness. Again, although this is a true statement (People v. Chambers (1972), 8 Ill. App. 3d 430, 289 N.E.2d 476), IPI Criminal No. 5.01 uses the statutory language to briefly, impartially, and sufficiently define reckless conduct.

Defendant’s instruction No. 5 recites the provisions of section 11 — 501 of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 951/2, par. 11 — 501) to the effect that it is illegal to drive while intoxicated and that there is a presumption of intoxication if analysis of a person’s bodily substance shows an alcoholic content of 0.10% or more. Defendant requested this instruction because of the intoxication of victim Huntemann. There was no evidence of defendant’s intoxication. As we have noted, Huntemann’s intoxication alone could not have established his recklessness. (See People v. Walljasper (1981), 97 Ill. App. 3d 81, 422 N.E.2d 251.) Under such circumstances, defendant’s non-IPI instruction could have served to confuse the jury and was therefore properly denied. See People v. Redmond (1979), 73 Ill. App. 3d 160, 177, 390 N.E.2d 1364, 1376.

Unlike the denial of defendant’s other instructions, the trial court’s denial of defendant’s instruction No. 6 compels our reversal and remandment of this case. This non-IPI instruction accurately reflects the elements necessary to prove the petty traffic offense of passing in a no-passing zone pursuant to section 11 — 707 of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95^2, par. 11 — 707). Defendant contends that, under the circumstances of this case, that offense was a lesser included one of reckless homicide and that he was therefore entitled to the instruction.

Defendant’s entitlement to a lesser included offense instruction is dependent upon a showing that (1) the lesser included offense is included in the offense charged, and (2) that the charged greater offense requires the jury to decide a disputed factual element which is not required for conviction of the lesser included offense. (People v. Cramer (1981), 85 Ill. 2d 92; People v. Wys (1982), 103 Ill. App. 3d 273, 431 N.E.2d 38.) Section 2 — 9 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 2 — 9) defined an included offense as one which “[i]s established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged ***.” However, the courts have found that this definition lends little to the proper focus in determining a lesser included offense. (People v. Wys (1982), 103 Ill. App. 3d 273, 275, 431 N.E.2d 38, 40; see People v. Mays (1982), 91 Ill. 2d 251, 255.) Rather, the cases note three different approaches to test an offense as a lesser included offense: (1) the abstract statutory definition of the greater offense; (2) the greater crime as it is alleged in the indictment or other charging instrument; and (3) the greater crime as its necessary elements are proved at trial. (People v. Mays (1982), 91 Ill. 2d 251, 255; People v. Wys (1982), 103 Ill. App. 3d 273, 275-77, 431 N.E.2d 38, 40-41.) The first test has been discounted, the second endorsed, and judgment reserved on the third. Cramer; Mays; Wys.

Application of the second test requires a court to examine the indictment: in a case where some elements of the crime charged comprise a lesser included crime, the defendant, if the jury could rationally acquit him on a greater offense and convict on the lesser, is entitled to an instruction on the lesser offense. (People v. Wys (1982), 103 Ill. App. 3d 273, 276, 431 N.E.2d 38, 41.) In People v. Cashen (1983), 112 Ill. App. 3d 1054, 446 N.E.2d 288, the appellate court, sitting in the Fourth District, recently applied this second test under facts similar to this case. There, the court fund that disobeying a traffic control device (Ill. Rev. Stat. 1981, ch. 951/2, par. 11 — 305) was a lesser included offense of reckless homicide in that case, based upon the allegations of the indictment.

In the present case, both counts of the indictment alleged in part that defendant “was driving his vehicle completely in the on coming-traffic lane to the left of the double yellow center line ***.” Section 11 — 707(b) of the Illinois Vehicle Code provides as follows:

“Where signs or markings are in place to define a no-passing zone as set forth in paragraph (a) no driver may at any time drive on the left side of the roadway within the no-passing zone or on the left side of any pavement striping designed to mark such no-passing zone throughout its length.” (Ill. Rev. Stat. 1981, ch. 95V2, par. ll-707(b).)

Thus, the indictment charges the defendant with conduct that constitutes all elements of the offense defined in section 11 — 707(b).

Moreover, as is also necessary before an included offense instruction must be given, the offense charged involves a disputed factual element which is not part of the lesser offense: that defendant’s conduct was criminally reckless. (See People v. Cashen (1983), 112 Ill. App. 3d 1054, 1056, 446 N.E.2d 288, 289.) We reverse and remand on this issue.

In light of our decision to remand, we need not address defendant’s other assignments of error. (Smith v. Metropolitan Sanitary District (1978), 61 Ill. App. 3d 103, 377 N.E.2d 1088, aff'd (1979), 77 Ill. 2d 313.) We reverse the judgment of the circuit court of Lake County and remand for a new trial consistent with this opinion.

Reversed and remanded.

SEIDENFELD, P.J., and UNVERZAGT, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE STOUDER

license: Public Domain

text:
    EASTER ENTERPRISES, INC., d/b/a Giant Discount Foods, Plaintiff-Appellant, v. ILLINOIS LIQUOR CONTROL COMMISSION, Defendant-Appellee.
    Third District
    No. 82—579
    Opinion filed May 24, 1983.

      John T. Pepmeyer, of Bell & Pepmeyer, of Galesburg, for appellant.
    Tyrone C. Pahner, Attorney General, of Springfield (Robert E. Wagner, Assistant Attorney General,' of counsel), for appellee.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

This action is an appeal of the decision by the circuit court of Knox County upon administrative review affirming a decision of the Illinois Liquor Control Commission (the Commission) which revoked the State of Illinois liquor license of the plaintiff, Easter Enterprises, Inc.

The plaintiff, an Iowa corporation, is engaged in the retail sale of food and liquor in Galesburg, Illinois. On April 8, 1981, the plaintiff was issued a citation by the Illinois Liquor Control Commission for violations of the Liquor Control Act (Ill. Rev. Stat. 1981, ch. 43, pars. 127, 120(10a)), in that the plaintiff was selling alcoholic liquor within 100 feet of a school and as a foreign corporation had not qualified to do business within the State of Illinois pursuant to the Business Corporation Act (Ill. Rev. Stat. 1981, ch. 32, par. 157.1 et seq.). The latter ground was cured prior to the administrative hearing held on July 22, 1981.

At the hearing before the Commission, evidence was presented on the issue of whether the plaintiff’s property was located within 100 feet of the Silas Willard School in Galesburg, Illinois, and on other substantive and procedural matters. The parties stipulated to the admission of the following facts: (1) that the Silas Willard School, constructed in 1912, was located at 495 East Fremont Street, Galesburg, Illinois; (2), that the plaintiff’s premises were located at Fremont and Seminary streets, Galesburg, Illinois; and (3), that the plaintiff commenced business operations at this location on March 2, 1976.

The Commission found that the property line of the plaintiff’s business premises abutted and was located within 100 feet of the property line of the Silas Willard School premises and that the plaintiff was therefore ineligible to hold a State retail liquor license pursuant to section 8 of article VI of the Liquor Control Act (Ill. Rev. Stat. 1981, ch. 43, par. 127). The Commission further found that the plaintiff did not qualify for a license under the exemptions contained in that section. The Commission denied the plaintiff’s motion to dismiss and ordered its State retail liquor license revoked.

The plaintiff then sought administrative review of this decision in the circuit court of Knox County. Briefs were filed and oral arguments were heard in that court. In its order of April 14, 1982, the circuit court affirmed the Commission’s revocation decision. The plaintiff has now appealed from this order.

The primary issues in the case at hand to which we shall first address ourselves are: (1), whether the Commission erred in holding that the plaintiff did not fall within the exemption provided in section 8 of article VI of the Liquor Control Act relating to food shops or other establishments where the sale of alcoholic liquors is not the principal business carried on, if such place of business so exempted shall have been established for such purposes prior to the taking effect of the Act; (2), whether the Commission erred in failing to recognize that the ordinance of Galesburg, Illinois, a home-rule municipality, dealing with the proximity of retail liquor licensees to churches, schools and various other institutions conflicted with and pre-empted section 8 of article VI of the Liquor Control Act; and (3), whether section 8 of article VI of the Liquor Control Act is violative of due process in that it is vague, arbitrary and unclear.

Upon administrative review, the trial court and the appellate court are limited to determining whether the findings and orders of the administrative body are contrary to the manifest weight of the evidence and whether the administrative body acted arbitrarily in clear abuse of its discretion. (Starnawski v. License Appeal Com. (1981), 101 Ill. App. 3d 1050, 428 N.E.2d 1102.) With reference to the primary issues on appeal, we find that the Commission’s determination of the facts and its resolution of the legal issues involved were based on the evidence presented to it and were not arbitrary or an abuse of discretion.

Section 8 of article VI of the Liquor Control Act prohibits the issuance of a license for the retail sale of alcoholic liquor within 100 feet of any church, school other than an institution of higher learning, hospital, home for aged or indigent persons or for veterans, their spouses or children or any military or naval station, except, that this prohibition does not apply to hotels offering restaurant service, regularly organized clubs or to restaurants, food shops or other places where the sale of alcoholic liquor is not the principal business carried on, if such place of business so exempted had been established for such purposes prior to the taking effect of the Act.

The plaintiff argues it falls within the above exemption relating to food shops or other places of business where the sale of alcoholic liquor is not the principal business carried on, if such business had been established prior to the taking effect of the Act. The plaintiff claims that because section 8, although originally enacted in 1934, had been most recently amended at the time of the administrative hearing by Public Act 81 — 848, the plaintiff’s food shop is exempt from that section’s prohibitions having been established on March 3, 1976, prior to the effective date of the amendment, September 20, 1979.

The exemption language of section 8 of article VI has remained basically unchanged since its enactment in 1934. The provisions of any statute which are the same as those of a prior statute shall be construed not as a new enactment but as a continuation of the prior provision. (Ill. Rev. Stat. 1981, ch. 1, par. 1101; Apex Motor Fuel Co. v. Barrett (1960), 20 Ill. 2d 395, 169 N.E.2d 769.) Language in section 8 of article VI establishing exemptions prior to the taking effect of the Act refer to the original enactment in 1934. Therefore, the plaintiff’s business, having commenced in 1976, does not fall within the claimed exemption.

On January 21, 1980, the Galesburg city council passed an ordinance identical to section 8 of article VI of the Liquor Control Act except that it exempted those businesses which did not primarily deal in the sale of alcoholic liquor, established prior to January 21, 1980, the effective date of the ordinance. The plaintiff argues that because Gales-burg is a home-rule municipality, the conflicting portion of the ordinance pre-empts the application of the State statute. Therefore, because the plaintiff is entitled to a local liquor license, having commenced business prior to January 21, 1980, it is entitled to a State liquor license as well.

Liquor control is subject to concurrent jurisdiction between the State and local units of government. (Aurora Pizza Hut, Inc. v. Hayter (1979), 79 Ill. App. 3d 1102, 398 N.E.2d 1150.) Home-rule municipalities may legislate freely in the area of liquor control except as restricted by the State pursuant to the home-rule provisions of the 1970 Illinois Constitution, article VII, section 6. (Illinois Liquor Control Com. v. City of Joliet (1975), 26 Ill. App. 3d 27, 324 N.E.2d 453.) The courts have approved local liquor ordinances in home-rule municipalities as within their home-rule powers which were either more restrictive than State statutes dealing with the same subject matter or which placed additional requirements on licensees not found in the Liquor Control Act. Illinois Liquor Control Com. v. City of Joliet (1975), 26 Ill. App. 3d 27, 324 N.E.2d 453; Liquor Control Com. v. Calumet City (1975), 28 Ill. App. 3d 279, 328 N.E.2d 153; Aurora Pizza Hut, Inc. v. Hayter (1979), 79 Ill. App. 3d 1102, 398 N.E.2d 1150.

Thus, the Galesburg city council was -within its authority as the governing body of a home-rule municipality in enacting an ordinance dealing with the same subject matter as section 8 of article VI of the Liquor Control Act. In fact, the ordinance is identical to the State statute except for the effective date of the exemption at issue. However, the enactment of the ordinance did not create a conflict with the State statute in this respect. Prior to and subsequent to the passage of the city ordinance, section 8 of article VI was in effect governing the aspects of whether or not a State liquor license would issue relative to the stated exemptions. Because the exemption at issue applies only to those businesses established prior to 1934, the plaintiff has failed to qualify, having commenced its business in 1976.

If the ordinance were to be given effect as the plaintiff suggests, pre-empting section 8 of article VI, the plaintiff would be afforded greater rights than prior to the ordinance’s passage. As previously noted, the courts have upheld liquor ordinances of home-rule municipalities which established greater restrictions in the area of liquor control, not greater liberality. Allowing the Galesburg ordinance to nullify section 8 of article VI would directly conflict with a State restriction and would not fall within the municipality’s home-rule powers. Therefore, section 8 of article VI of the Liquor Control Act is applicable to the plaintiff and would prevent the issuance of a State liquor license to it.

The plaintiff next contends that even if it does not fall within the stated exemptions of section 8 of article VI, the statute is void, as -violative of due process in that it is vague, arbitrary and unclear with regard to the 100 feet proximity test.

Due process of law requires that a statute not be so vague, indefinite or uncertain so as to fail to provide sufficient standards to guide an administrative body in the exercise of its functions. (Polyvend, Inc. v. Puckorius (1979), 77 Ill. 2d 287, 395 N.E.2d 1376.) However, there is room for judicial interpretation of a statute in order to avoid a vagueness problem. Grayned v. City of Rockford (1972), 408 U.S. 104, 33 L. Ed. 2d 222, 92 S. Ct. 2294; Dombrowski v. Pfister (1965), 380 U.S. 479, 14 L. Ed. 2d 22, 85 S. Ct. 1116.

The courts have repeatedly interpreted the phrase “within 100 feet of any church, school” of section 8 of article VI to mean within 100 feet of property lines not buildings. (Bilandic v. Johnson (1978), 62 Ill. App. 3d 455, 379 N.E.2d 107; Kaminski v. Illinois Liquor Control Com. (1974), 20 Ill. App. 3d 416, 314 N.E.2d 290; Smith v. Ballas (1948), 335 Ill. App. 418, 82 N.E.2d 181.) Furthermore, the State statute itself supports this construction by specifically stating that with reference to churches only, the distance of 100 feet is to be measured to the nearest part of the building used for worship or educational purposes, not to property boundaries. This exception strongly implies that for all other named institutions measurement is to be made to property boundaries. Therefore, section 8 of article VI is not violative of due process in that its meaning is sufficiently clear as construed by the courts and as indicated by the statute itself.

The plaintiff also argues that the Commission erred in failing to rule and make specific findings on the plaintiff’s motion to dismiss based on res judicata, in failing to allow the admission of evidence relating to the doctrine of equitable estoppel, and in imposing the excessive and unconscionable sanction of license revocation against the plaintiff.

With reference to the plaintiff’s motion to dismiss, the Commission did rule on the motion in its order of revocation, denying it and making the specific finding that the plaintiff failed to file a brief in support of its position as ordered by the Commission. The plaintiff’s claim, therefore, is without foundation.

As for the plaintiff’s claim of equitable estoppel, the record does not suggest that the Commission refused to hear evidence on equitable estoppel or that the plaintiff attempted to present such evidence. Consequently, no error was committed by the Commission in this respect.

The final issue on appeal is whether the sanction of license revocation was excessive and unconscionable. We believe that the sanction of revocation was proper and the sole sanction available to the Commission in this type of proceeding. Because the plaintiff was in violation of a statute which stated that a license would not issue under certain circumstances, the Commission had no choice but to revoke the plaintiff’s license. This result was mandated by the statute. Thus, the Commission’s sanction of revocation was not in error.

Accordingly, for the foregoing reasons, the judgment of the circuit court of Knox County is affirmed.

Affirmed.

ALLOY and BARRY, JJ., concur.


author: JUSTICE ALLOY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES TIMMONS, Defendant-Appellant.
    Third District
    No. 82—630
    Opinion filed May 26, 1983.

      Robert Agostinelli and Verlin R. F. Meinz, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Joan C. Scott, State’s Attorney, of Lewistown (John X. Breslin and Gerry R. Arnold, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE ALLOY

delivered the opinion of the court:

James Timmons appeals from his conviction for the unlawful delivery of a controlled substance, less than 30 grams of LSD. Following a jury trial, in which the defendant was found guilty, the trial judge sentenced him to a term of 30 months’ probation, conditioned upon the payment of a $600 fine, court costs of $105.40, and a surcharge of $60. From the conviction, and the imposition of the surcharge, he appeals. The defense contends that reversal is required: (1) because the State was permitted to cross-examine the defendant regarding his post-arrest failure to communicate his trial-testimony claim of innocence; (2) because defense counsel was not permitted to bring forth that a key prosecution witness had refused to be interviewed by the defense prior to trial. The defendant also argues that he was not proven guilty beyond a reasonable doubt. The final issue raised is whether the court’s order assessing the defendant a penalty assessment surcharge in the amount of $60 was in error.

The record establishes that the State’s evidence consisted principally of the testimony of Donna Kurlinkus, an undercover MEG agent. Her testimony was that at about 6:15 p.m., on March 11, 1981, she and Joe Bricker were riding in her vehicle. They drove to a large green house in Banner, Illinois, into which they were admitted by the defendant Timmons. Timmons and agent Kurlinkus conversed about some “acid” (lysergic acid diethylamide) she “had heard he had.” According to Kurlinkus, Timmons informed her that he only had one “hit” (unit) left, and he gave her a small piece of paper with blue edging. She put it in her pocket and later left. It was determined subsequently that the piece of paper contained LSD.

The other State’s witness was William Maddox, a Pekin police officer, who had been assigned to the MEG unit. Maddox, on the basis of Kurlinkus’ evidence, had executed an arrest warrant for the defendant, at Timmons’ home in Banner, in January 1982. The arrest occurred almost nine months after the sale to Kurlinkus. Maddox testified that he went to Timmons’ home, arrested him, advised him of his rights, and then transported him to the Fulton County jail by automobile. During the trip to Canton, the two conversed, with Maddox outlining the “general specifics” of the case. According to Maddox, the defendant denied ever selling acid to anyone. Maddox did indicate, however, that when asked about the acid, Timmons stated that he remembered getting it in a bar in Mapleton, but did not recall any girl. He denied throughout the conversation with Maddox any sale or transfer to Kurlinkus.

The defense witnesses were numerous. The defendant testified in his own behalf, indicating that on the day of the alleged sale, March 11, 1981, he was home with a friend until about 6:30 p.m., when he left for the bowling alley. He stated that neither Joe Bricker nor Donna Kurlinkus came by the house while he was there. Timmons admitted trying acid once, stating that he purchased it at a bar in Mapleton, sometime around Christmas 1980. Timmons recalled being arrested by Maddox, in January 1982, and riding with him to the jail. Timmons testified that he told Maddox that agent Kurlinkus had not been to his home and also that he had not given her any acid. He told Maddox that he had seen acid in a bar in Mapleton around Christmas time. He repeatedly denied any involvement in the incident.

In the State’s cross-examination of the defendant, the prosecutor inquired how it was that the defendant could be so positive about his whereabouts on the day of the alleged sale to Kurlinkus. In response, Timmons detailed how, after his arrest, through subsequent conversations with his wife, he was able to specify his whereabouts and activities on March 11, 1981. Timmons indicated that his wife reminded him that March 11 was her sister’s birthday and that there had been a family birthday party that day. The prosecutor then asked the defendant whether he didn’t think it wise to tell the information to authorities before trial, and questioned why he had waited until trial to come forth with the testimony. Timmons responded that his lawyer was in charge of his case, after the arrest, and that he informed the lawyer of the matters. The defense objected to the prosecution’s cross-examination concerning the defendant’s post-arrest failure to talk to the police about his whereabouts on the day of the alleged sale. The trial court, finding that the defense had opened the door for such testimony, denied the motion to strike.

Other defense testimony corroborated the defendant’s testimony as to his whereabouts and events of that day. Tim Seward, the friend who had allegedly been with Timmons all that day, stated that he had been with him until 6:30 p.m., when he left for the bowling alley. Seward testified that Joe Bricker, whom they both knew and whom Kurlinkus said was with her, did not come by Timmons’ house that day. Mrs. Timmons also testified that Bricker did not come by, and she contradicted another of Kurlinkus’ statements. Kurlinkus testified that there was a woman at the house, doing laundry, with children about, on the day of the sale. Mrs. Timmons stated that during that period of time she had no washer at home, and she did the laundry away from the home. Joe Bricker also testified for the defense, denying that he was with Officer Kurlinkus and denying ever going to the defendant’s house with Kurlinkus. On cross-examination, Bricker admitted that he had formerly lived with the defendant and still bowled with him on occasion. Numerous other witnesses confirmed Bricker’s testimony as to his whereabouts on that day, and the fact that he was not with Kurlinkus.

The only rebuttal testimony was from Officer Kurlinkus, who on direct had testified that Timmons’ house was green, whereas the Timmons’ house was white. Kurlinkus indicated that while jogging the morning of the trial she had noticed that the house was white, but had a dark green garage door.

The jury returned a guilty verdict and the court sentenced the defendant to a term of 30-months probation, with a fine of $600 and court costs. Later, the formal sentencing order required the defendant to pay the fine, costs, and an additional surcharge in the amount of $60. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 9—1(c).) The notice of appeal was thereafter filed.

The first issue is whether reversible error was committed in the court’s permitting the prosecution to cross-examine the defendant concerning his post-trial failure to communicate to them his trial testimony claim of innocence. In cross-examining the defendant, the prosecutor had Timmons reconstruct the process by which his wife and he were able to remember his actions and the events of March 11, 1981, the day of the alleged sale. Timmons testified on direct that he remembered the events of that day because his wife reminded him that it was the day of his sister-in-law’s birthday party, which he had missed while bowling. During the cross-examination, the prosecutor stated:

“Q. After you talked to your wife, you didn’t think it wise to come and tell the police authorities about this or the State’s Attorney’s Office; rather, you waited to come to Court today to tell us this?
A. Why should I go to the State’s Attorney’s when they are trying to — they arrested me. I am supposed to talk to my lawyer, not a State’s Attorney.
Q. You wouldn’t want to, since the State’s Attorney’s Office is the one that’s charging you and the one that is accusing you of this crime. You wouldn’t want to tell them that there’s more indication here that would indicate that you were not involved?”

Defense objection was made to this attempted impeachment through evidence that Timmons had not gone to the State to inform them of his newly recollected information concerning his activities on the day of the alleged sale. The trial court initially ruled that the question was proper since the subject had been opened during the direct examination of the defendant in questions concerning his representation by an attorney. However, the subject of the defendant’s discussions with his lawyer was not addressed by defense counsel until redirect. The trial court’s basis for admitting the questioning, faced with the defense post-trial motion, was that the defendant had not remained totally silent following his arrest. The court also concluded that if there was error, it was harmless.

The touchstone of any inquiry into errors concerning cross-examination of a defendant about his failure to make a post-arrest statement of innocence is United States v. Hale (1975), 422 U.S. 171, 45 L. Ed. 2d 99, 95 S. Ct. 2133, wherein it was held error for the State to cross-examine a defendant about his post-arrest silence, even faced with his testimony of innocence at trial. In that case, the court noted that absent a “threshold inconsistency” between the post-arrest silence and the trial testimony, it was error to permit such cross-examination. (422 U.S. 171, 176, 45 L. Ed. 2d 99, 104, 95 S. Ct. 2133, 2136.) While Hale and its illustrious progeny (Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240) involved post-arrest silence, the principles of those cases have been applied in situations where the defendant has been only partially silent after arrest. The crucial inquiry remains whether there is a threshold inconsistency between the defendant’s post-arrest silence and his subsequent trial testimony. (People v. Rehbein (1978), 74 Ill. 2d 435, 386 N.E.2d 39, cert. denied (1979), 442 U.S. 919, 61 L. Ed. 2d 287, 99 S. Ct. 2843; People v. Green (1979), 74 Ill. 2d 444, 386 N.E.2d 272; People v. Better (1979), 74 Ill. 2d 514, 386 N.E.2d 857.) In Rehbein, the court permitted cross-examination of a defendant concerning his failure to communicate his consent defense to police at the time of his arrest. In so doing, the court noted that the consent defense was obviously inconsistent with the statements given police after arrest, to the effect that his car was inoperable and that he had been home all night. Under the circumstances, the court found no error in bringing forth the fact that the defendant had not advanced the consent defense in his discussions with the police after arrest. In Green, however, the court found error in such cross-examination where the defendant’s trial testimony was not inconsistent with the statements given at the time of his arrest. At trial, the defendant stated that he entered the building only to find shelter for his family, while he told the police that there was one other man in the house and that no car was involved. The court noted that even though there was some inconsistency concerning the involvement of a car, that inconsistency did not impeach, through its inconsistency, the defendant’s shelter defense offered at trial. The inconsistency was collateral to the subject of improper cross, that being the defendant’s failure to advise the police of his defense. In Beller, the court found error in the prosecutor’s comment about the defendant’s failure to advance his claim of innocence at the time of his arrest. In analyzing the situation therein, the court found that where the question of inconsistency is ambiguous, then the requisite manifest inconsistency is not established, and the prosecutor is precluded from cross-examining or commenting about a defendant’s failure to advance his claim of innocence. The court in Green and Beller, while finding error, found such error to have been harmless under the circumstances of the cases.

In the instant case, the defendant’s trial testimony was that he did not deliver drugs to Kurlinkus on March 11, 1981. He testified to his activities and whereabouts on that day, in support of his testimony that Kurlinkus had not stopped by the house. The prosecutor then cross-examined him upon his failure to talk with the police or the State’s Attorney about his whereabouts and activities on the day of the alleged sale. Yet, this trial testimony was not inconsistent, as regards his whereabouts and activities on the day of the alleged sale, with his post-arrest statements to Officer Maddox. The record is clear that in talking with Maddox the defendant denied committing the offense and denied any involvement with Kurlinkus or any other girl. He denied any delivery of LSD. Thus, his post-arrest statements are consistent with his trial testimony as regards this area. The trial testimony merely filled in the details as to his whereabouts and activities on the day. There was no threshold inconsistency between his trial testimony about what he did that day and his post-arrest statements, indicating that he did not sell the drugs to Kurlinkus. The State’s emphasis upon Maddox’ testimony about the defendant’s statements referring to obtaining LSD in a bar in Mapleton is misplaced. Even granting, arguendo, an inconsistency, which only arises if the benefit of construing the ambiguity is given the State, nevertheless such inconsistency does not impeach his trial testimony concerning his activities and whereabouts on the day of the alleged sale and his consistent denial of any sale. It was upon his testimony concerning his activities on March 11 that the cross-examination inquiry into why he had not communicated with the police or State’s Attorney took place. The cross was not directed to the above-suggested inconsistency as to LSD in a bar in Mapleton, but to an alleged, but nonexistent, inconsistency between his post-arrest statements and his testimony as to his whereabouts and activities on the day of the alleged sale. The cross-examination, since no threshold inconsistency existed, was error. People v. Green; People v. Beller.

That does not end the matter, for the State asserts that the trial court correctly concluded that any error was harmless beyond a reasonable doubt. We disagree. Unlike the cases in Green and Beller, the State’s case herein was not overwhelming. Here, the only evidence of a sale was the testimony of Donna Kurlinkus, which testimony was somewhat inaccurate, the color of the house, and directly contradicted by a number of defense witnesses. Both the defendant Timmons and Joe Bricker, who Kurlinkus stated was with her at the time of the sale, denied the incident took place and both were corroborated by other witnesses. Credibility, both Kurlinkus’ and the defendant’s, was a crucial factor, and the evidence presented a close question. Given this, we are unable to conclude that the error in commenting upon the defendant’s failure to go to the authorities with the information concerning his activities and whereabouts on March 11, a comment implying his testimony was recently fabricated, was harmless beyond a reasonable doubt. Therefore, the cause must be reversed and remanded for retrial.

Another error asserted by the defense is the court’s refusal to permit defense counsel to impeach Officer Kurlinkus by showing that she refused to speak with him about the case before trial. Objection to such inquiry was sustained, and the defense offer of proof indicated that Kurlinkus had received a letter from defendant’s counsel requesting a pretrial interview and that she had refused to discuss the case after consulting with the prosecutor’s office. The defense urges that the refusal of the prosecution witness to talk with defense counsel, upon request, was a proper subject for impeachment cross-examination. At the outset we are met with the State’s contention that the issue has been waived by failure to include it in the post-trial motion. Although the issue was not raised in the post-trial motion, and could be considered waived on that basis, the circumstances herein weigh toward relaxation of the waiver rule, for the court, during trial, was given opportunity to consider and correct any error in refusing the impeachment cross-examination. (People v. Gillman (1980), 91 Ill. App. 3d 53, 59, 414 N.E.2d 240.) Here the defense attempted the cross-examination concerning a refusal to discuss the case when Kurlinkus was called by the State, and when objection was sustained, defense counsel later called Kurlinkus in his case in chief, for the purpose of making the inquiry. Objection was again sustained and the offer of proof followed. The policy underlying the waiver rule was satisfied and we find merit in the defense position. In so finding, we rely on the decision and analysis by the court in People v. VanZile (1977), 48 Ill. App. 3d 972, 976-79, 363 N.E.2d 424. The court stated, in pertinent part:

“The credibility of a witness is always an issue — more correctly, in issue. A refusal to talk in advance of trial to the other side reasonably could indicate hostility by the witness to the inquiring side, or at least a bias for, or an interest in, a favorable outcome for the side calling him. We say ‘could’ because triers of the fact need not invariably so conclude, but they reasonably can do so. And if triers of the fact can reasonably infer this, then we do not have forbidden impeachment on a collateral matter, but rather on a very germane matter: the credibility of that witness. ***
Under our present system of liberal discovery, both sides at a minimum know the witnesses who will oppose them. Admittedly, both sides have the right to attempt to interview the other’s witnesses. Admittedly too, witnesses have a corollary right not to be interviewed if they so choose. But this refusal, in our opinion, can be used against them to argue bias, hostility, interest in outcome, all of which look to credibility. It is a risk the witness or his side takes. That these are reasonable inferences from such conduct cannot be gainsaid. Although they are not inexorable, they are reasonable. It is up to the trier of fact to accept or reject them. ***
*** We may be crossing a threshold, but it seems to us that when one is asked to be interviewed on what his testimony will be, he declines at the risk that he may be asked later on at trial about such fact and his reasons therefor. It is a risk he takes. Perhaps it can be explained away, but it is nonetheless still a risk. Again, the lack of cases is a puzzlement. We think it is proper to bring out on cross-examination the fact that the witness has refused to talk to the examiner’s side of the case where a fifth amendment privilege against self-incrimination of that witness is not relevant.” (48 Ill. App. 3d 972, 977-78, 363 N.E.2d 424.)

We believe that the VanZile court’s position is well reasoned and sound, and we adopt it. While such rule necessarily reduces, to some extent, the usual discretion of the trial court regarding the breadth of cross-examination (People v. Peter (1973), 55 Ill. 2d 443, 451, 303 N.E.2d 398, cert. denied (1974), 417 U.S. 920, 41 L. Ed. 2d 225, 94 S. Ct. 2627), it is consistent with the trend toward more open criminal discovery (People v. Glover (1971), 49 Ill. 2d 78, 273 N.E.2d 367; 87 Ill. 2d R. 415(a)). While we need not determine whether the failure to permit such cross-examination in the instant case was reversible error by itself, we do note that the credibility of the State’s witness was in issue and of crucial importance in this case. Upon remandment for a new trial, defense counsel should be permitted to cross-examine Officer Kurlinkus concerning her refusal to discuss the case with him.

The defense next contends that this court should find that the defendant was not proven guilty beyond a reasonable doubt, when the errors above discussed are taken into consideration. We disagree. This case revolves around the credibility of the witnesses, for both sides. It is established that a reviewing court will not substitute its judgment for the factfinder’s on questions of the weight of evidence and the credibility of witnesses. (People v. Mills (1968), 40 Ill. 2d 4, 237 N.E.2d 697; People v. O’Connol (1981), 98 Ill. App. 3d 625, 424 N.E.2d 930.) In reviewing the record, we must view the evidence in the light most favorable to the prosecution, in assessing whether the defendant was proven guilty beyond a reasonable doubt. (People v. Kirwan (1981), 96 Ill. App. 3d 121, 421 N.E.2d 317.) Here, Officer Kurlinkus’ testimony was sufficient, if believed, even taking into consideration additional impeachment matter shown by the offer of proof, for the jury to conclude beyond a reasonable doubt that the defendant was guilty of the crime charged. The case, because of the aforementioned errors, will be reversed and remanded for another trial.

The final issue is whether the court erred in assessing the defendant an additional $60 surcharge after conviction, based upon section 5 — 9—1 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 9—1(c)). That provision, which became effective January 1, 1982, states:

“(c) Every fine imposed in sentencing for a criminal or traffic offense, except an offense relating to parking or registration, or offense by a pedestrian, shall include an amount payable to the Traffic and Criminal Conviction Surcharge Fund of the State Treasury in accordance with the following table:
* * *
Such amounts payable to such fund shall be assessed by the court imposing the fine and shall be collected by the Circuit Clerk in addition to the fine and costs in the case. The Circuit Clerk shall distribute such amount collected on behalf of the Traffic and Criminal Conviction Surcharge Fund in accordance with the provision of Section 9.1 of the ‘Illinois Police Training Act.’ ”

Section 9.1 of the Illinois Police Training Act (Ill. Rev. Stat. 1981, ch. 85, par. 509.1) reads, in pertinent part:

“In addition to every fine imposed by a court for a criminal or traffic offense, an additional assessment, payable to The Traffic and Criminal Conviction Surcharge Fund, shall be imposed by the court and paid by the defendant in accordance with the schedule provided in subsection (c) of Section 5 — 9—1 of the ‘Unified Code of Corrections’. [Sic] In the county where such fine is imposed, the Clerk of the Circuit Court shall collect the same and transmit it to the county treasurer. The County Treasurer of each county shall pay over to the State Treasurer the penalty assessment collected herein between the 15th of May and the first of June of each year, to be paid into The Traffic and Criminal Conviction Surcharge Fund of the State Treasury, less 2% of such penalty assessment total, which 2% shall be paid by the County Treasurer to the circuit court clerk to cover the costs incurred in administering and enforcing this Section. The County Treasurer of each Gounty shall report quarterly to the Board the amount of penalties deposited with him during the preceding quarter.” (Emphasis added.)

The defendant notes that his alleged criminal act of sale occurred on March 11, 1981, while the above provisions for penalty assessment became effective January 1, 1982. He finds application of the provisions to him as violative of the ban against ex post facto laws. (U.S. Const., art. I, sec. 10; Ill. Const. 1970, art. I, sec. 16.) As we have stated, these provisions preclude increasing the punishment for an offense by an amendatory enactment taking place after the offense has been committed. (People v. Bowling (1976), 43 Ill. App. 3d 932, 357 N.E.2d 724.) The State, quite understandably, argues that ban against ex post facto laws applies only to laws that are punitive in nature, and that it does not apply to costs, which are compensatory, not punitive. (People v. DuMontelle (1977), 49 Ill. App. 3d 187, 364 N.E.2d 95, rev’d on other grounds (1978), 71 Ill. 2d 157.) From these accepted rules, the State then argues that the assessment under the above provisions merely imposes a surcharge to cover the costs of the proceedings. By the terms of the enacting legislation, above set forth, this charge is not a surcharge covering the costs of the proceeding. The charge is to be collected, in addition “to the fine and costs in the case,” and is not included within the fine. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 9—1(c).) Furthermore, it is specifically denoted as a “penalty assessment” in section 9.2 of the Illinois Police Training Act (Ill. Rev. Stat. 1981, ch. 85, par. 509.1). The intent and effect of these provisions was punitive in nature, and as such, application to the defendant, whose alleged offense was committed prior to their effectiveness, was in error, as contrary to the prohibition against ex post facto laws. If upon retrial, the defendant is again convicted, the court may not impose the penalty assessment called for by these provisions.

The case is reversed and remanded for another trial.

Reversed and remanded for retrial.

SCOTT and BARRY, JJ., concur.


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    RAYMOND A. BENO, d/b/a Orland Park Schwinn Cyclery, Plaintiff-Appellee, v. DeBOER ASPHALT PAVING COMPANY, INC., Defendant-Appellant.
    Third District
    No. 82-746
    Opinion filed May 24, 1983.

      Scot A. Silzer, of Palos Heights, for appellant.
    Donald L. Wennlund & Associates, of New Lenox, for appellee.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The defendant, DeBoer Asphalt Paving Co., Inc., an Illinois corporation, appeals from the denial of its motion to vacate a default judgment entered in favor of the plaintiff, Raymond A. Beño, d/b/a Orland Park Schwinn Cyclery. We reverse the judgment of the circuit court of Will County and remand the cause.

The undisputed facts show that the plaintiff filed suit against the defendant on August 28, 1981, for breach of contract and negligence. Specifically, the plaintiff alleged that the defendant failed to use the proper amount of stone in the base of a parking lot installed by the defendant for the plaintiff. A trial date of July 26,1982, was set.

On May 26, 1982, the defendant forwarded interrogatories and a notice to produce to the plaintiff. On July 22, 1982, counsel for the defendant, Scot A. Silzer, was notified of the death of its principle witness. The defendant also received the plaintiff’s responses to its interrogatories and notice to produce on this day. The plaintiff proceeded to trial on July 26, 1982, and, because the defendant did not appear, was granted a default judgment.

The order granting judgment was entered July 30, 1982. The defendant received notice of the judgment on August 31, 1982. The defendant subsequently filed its motion to vacate the default judgment on September 23, 1982. It is from the denial of this motion that the defendant appeals.

The defendant contends on appeal that the court abused its discretion in denying its motion to vacate the default judgment. The plaintiff in response denies that the court abused its discretion and asserts that the defendant has failed to provide an adequate record on review.

We initially address the plaintiff’s allegation that the record is inadequate. The order of the court denying the defendant’s motion establishes that the court’s finding was based solely on arguments of counsel, motions and affidavits. Because there was no testimony given, the transcript of the hearing on the defendant’s motion is not vital to a review of the issues presented by this appeal. It is the appellant’s responsibility to see that the record on appeal is complete. (Abbey Plumbing & Heating, Inc. v. Brown (1977), 47 Ill. App. 3d 719, 365 N.E.2d 115.) We find that the defendant has fulfilled his responsibility by including within the record the motions and affidavits on which the trial court’s finding was based.

The substantive issue raised by the defendant is whether the trial court erred in denying its motion to vacate. The defendant’s motion was filed pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401), formerly section 72 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 72). A motion under section 2 — 1401 is addressed to the equitable powers of the court and whether such motion should be granted depends upon the facts and equities presented. (Steinberg’s Department Store, Inc. v. Baysingar (1980), 86 Ill. App. 3d 1140, 409 N.E.2d 8.) Relief is granted under this section in order to achieve justice, and a liberal construction is used to achieve that end. Electrical Wholesalers, Inc. v. Silverstein (1977), 47 Ill. App. 3d 689, 365 N.E.2d 375.

In order for a party to be entitled to relief from a default judgment under this section, the party must present facts demonstrating the existence of a meritorious defense and the exercise of due diligence in responding to the process of the court. (Bird v. Kostbade (1977), 52 Ill. App. 3d 741, 367 N.E.2d 1058.) In the instant case, the defendant set forth facts in its affidavit demonstrating a meritorious defense. The defendant attached to its affidavit a copy of its receipt for the purchase of stone showing that the requisite amount of stone for the parking lot was purchased by the defendant. If the requisite amount of stone was used in the construction of the plaintiffs parking lot, the defendant has a meritorious defense.

The only issue then remaining is whether the defendant acted with due diligence. The parties disagree on the facts relevant to the resolution of this question. Attorney Silzer states in his affidavit that he called the attorney for plaintiff, Donald L. Wennlund, on July 23, 1982, and requested that the trial be continued because of the death of the defendant’s witness and the late receipt of the plaintiff’s responses to discovery. Because Wennlund was not in his office, Silzer left a message that Wennlund should notify him if a continuance was not acceptable. Silzer also states that he phoned Wennlund on July 29, 1982, and on two additional occasions prior to notice of the judgment, in order to determine the status of the suit. Attorney Wennlund, in his affidavit, responds that no phone call was received in his office from the defendant’s counsel during the period from July 20 to July 26, 1982. However, Wennlund does not deny in his affidavit that he received the phone calls placed by Silzer on July 29 and thereafter.

In order to demonstrate due diligence, a party must show that his failure to defend was the result of an excusable mistake and that he acted reasonably, and not negligently, when he failed initially to resist the judgment. (Steinberg’s Department Store, Inc. v. Baysingar (1980), 86 Ill. App. 3d 1140, 409 N.E.2d 8.) The courts are primarily concerned with determining whether a party has wilfully disregarded the process of the court or is so indifferent to it that he is chargeable with culpable negligence. (Bird v. Kostbade (1977), 52 Ill. App. 3d 741, 367 N.E.2d 1058.) However, the issue of due diligence requires a consideration of all the attendant circumstances. (M.L.C. Corp. v. Pallas (1978), 59 Ill. App. 3d 504, 375 N.E.2d 560.) Delay in notifying a defaulted party of the default judgment until more than 30 days after its entry casts a cloud on the proceedings. Elfman v. Evanston Bus Co. (1963), 27 Ill. 2d 609, 190 N.E.2d 348; Bird v. Kostbade (1977), 52 Ill. App. 3d 741, 367 N.E.2d 1058.

In the instant case, there is conflicting evidence as to whether Silzer contacted Wennlund’s office on July 23, 1982. However, it is undisputed that Silzer attempted to contact Wennlund at his office on July 29, 1982, and thereafter without receiving any response. This fact lends credence to Silzer’s assertion that he did in fact call on July 23. This fact also demonstrates that Wennlund was aware of Silzer’s concern with the progress of the case but purposely failed to inform Silzer of the entry of the default judgment. Wennlund notified Silzer of the judgment against the defendant only after 30 days had elapsed from the granting of that judgment.

It is clear from these facts that Silzer relied on Wennlund both for the securing of a continuance and for information on the progress of the case. Given the adversary nature of the legal system and the ease with which such information could have been obtained from the trial court itself, Silzer’s actions were unwise and certainly not to be condoned by this court. However, we do not find that such actions constituted wilful disregard or indifference to the process of the court.

A court of review is justified in disturbing the trial court’s decision under section 2 — 1401 only if the trial court has abused its discretion (Stallworth v. Thomas (1980), 83 Ill. App. 3d 747, 404 N.E.2d 554.) We have considered all of the circumstances attendant in the instant case, including the conduct of the attorneys for both parties. Given these circumstances, the general principles of equity, and the goals of justice and fairness which underlie section 2 — 1401, we find that the trial court abused its discretion in denying the defendant’s motion to vacate the default judgment entered against it.

Therefore, the judgment of the circuit court of Will County is reversed and the cause remanded.

Reversed and remanded.

ALLOY and BARRY, JJ., concur.